In Re: Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology and Versys Femoral Head Products Liability Litigation

Filing 180

ORDER NO. 60 terminating 177 Letter Motion to Seal. The Court accepts Zimmer's proposed redactions to the expert reports of Dr. Iorio (supra pp. 2-3) and Ms. Truman (supra pp. 3-4), and Plaintiffs' Exhibits O and U (supra pp. 4-5). Plain tiffs are directed to publicly file an unredacted copy of their motion to exclude the expert testimony of Dr. Gilbert, along with unredacted copies of Exhibits V and W to that motion (supra p. 5). The Clerk of Court is directed to close the entries at 18-md-2859 ECF numbers 369, 377, and 394; and 18-mc-2859 ECF number 177. (Signed by Judge Paul A. Crotty on 6/3/2021) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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IN RE: ZIMMER MIL TAPER HIP
PROSTHESIS OR MIL TAPER
HIP PROSTHESIS WITH KINECTIV
TECHNOLOGY AND
VERSYS FEMORAL HEAD PRODUCTS
LIABILITY LITIGATION

MDLNO.2859
18-MD-2859 (PAC)
18-MC-2859 (PAC)
ORDERNO.60

This Document Relates to All Cases

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This order resolves Zimmer' s motions to redact several filings and file unredacted
versions of the documents with the Court under seal. Specifically, Zimmer moves to redact
certain portions of Dr. Richard Iorio's and Ms. Mari Truman's expert reports, which Zimmer
offers as exhibits in support of its Daubert motions and motion for summary judgment.
Zimmer's Mot. Seal 1-2, ECF No. 369. 1 Zimmer also moves to redact portions of Dr. Jeremy
Gilbert's expert report (Pls.' Ex. 0) and Dr. Gilbert's deposition transcript (Pis.' Ex. U), which
Plaintiffs submitted as exhibits in support of their motion to exclude Dr. Gilbert's expert
testimony. Zimmer's Letter 2-5, ECF No. 394. 2 Zimmer's proposed redactions are limited to
the exhibits themselves; Zimmer does not seek to redact anything from its memoranda in support
of its motions or its Local Civil Rule 56.1 statement of undisputed material facts. For the

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All ECF citations are to case number 18-md-2859.

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Technically, Plaintiffs moved for permission to file these exhibits under seal and make the
requested redactions (Pis.' Mot. Seal 1-2, ECF No. 377), but they did so out of courtesy to
Zimmer, who is the party interested in the confidentiality of the information. "The party seeking
the sealing of judicial documents bears the burden of showing that higher values overcome the
presumption of public access." Alexandria Real Estate Equities, Inc. v. Fair, No. 11 Civ. 3694,
2011 WL 6015646, at *2 (S.D.N.Y. Nov. 30, 2011) (citing DiRussa v. Dean Witter Reyno/~
Inc., 121 F.3d 818, 826 (2d Cir. 1997)). Accordingly, the Court directed Zimmer to identify
which portions of Plaintiffs' materials it would like redacted, if any, and Zimmer did so by letter
(ECF No. 394). The Court treats both requests to seal here as originating with Zimmer.

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reasons that follow, the Court accepts Zimmer' s proposed redactions. The parties are directed to
publicly file copies of the papers with the redactions specified in this order.
Applicable Law

"[I]t is well settled that 'documents submitted to a court for its consideration in a
summary judgment motion are-as a matter of law-judicial documents to which a strong
presumption of access attaches, under both the common law and the First Amendment."' Brown
v. Maxwell, 929 F.3d 41, 47 (2d Cir. 2019) (quoting Lugosch v. Pyramid Co. of Onondaga, 435
F.3d 110, 121 (2d Cir. 2006)). Filings related to Daubert motions are subject to a significant
presumption of access under the common law and the First Amendment. Republic of Turkey v.
Christie's, Inc., 425 F. Supp. 3d 204,221 (S.D.N.Y. 2019). Because "the more stringent First
Amendment framework applies, continued sealing of the documents may be justified only with
specific, on-the-record findings that sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim." Lugosch, 435 F.3d at 124.
Dr. Iorio's Expert Report

With the single exception of paragraph 162, the Court has already ruled that all of
Zimmer's proposed redactions to Dr. Iorio's expert report are appropriate. Order No. 59 at 4 &
n.3, ECF No. 360. While Dr. Iorio's report here, in the context of a motion for summary
judgment, is entitled to a heavier presumption of public access, the Court concludes, for the same
reasons discussed in Order 59, that these redactions remain appropriate. See Capricorn Mgmt.
Sys., Inc. v. Gov't Emps. Ins. Co., No. 15-cv-2926, 2019 WL 5694256, at *24 (E.D.N.Y. July 22,
2019) (R&R adopted at 2020 WL 1242616, at *12 (E.D.N.Y. Mar. 16, 2020)); Utica Mut. Ins.
Co. v. Munich Reinsurance Am., Inc., 2017 WL 9400673, at *7 (N.D.N.Y. 2017) ("As Utica
seeks a sealing order only with respect to the portions Judge Sharpe previously ordered to be

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sealed, its request is granted."). Additionally, although only the weaker common law
presumption of access applied in Order 59, as Dr. Iorio's report was submitted there in
opposition to a motion to strike, the Court noted that Zimmer's proposed redactions (which the
Court accepted) were narrowly tailored. Order No. 59 at 3. Thus, the narrow tailoring that the
First Amendment right of access requires has been satisfied with respect to those redactions.
As for paragraph 162 (which is already redacted in the publicly filed versions of Dr.
Iorio's report3), redaction is appropriate because paragraph 162 concerns the same internal
document that paragraph 161 discusses, and it relays Zimmer' s internal response to scientific
developments in industry literature. The referenced document is a confidential marketing and
sales training document, and paragraph 162 reveals what Zimmer was or was not communicating
to its marketing and sales forces at the time. Accordingly, Zimmer' s interest in redacting
paragraph 162 outweighs the public's interest, "because if the redacted portions were made
public, they would reveal ... marketing strategy ... which Zimmer' s competitors could use to
gain an unearned competitive edge (thereby causing Zimmer a competitive injury)." Order 59 at
3-4; see Hypnotic Hats, Ltd. v. Wintermantel Enters., LLC, 335 F. Supp. 3d 566, 600 (S.D.N.Y.
2018). Zimmer's redaction of paragraph 162 is accepted.
Ms. Truman's Expert Report
Zimmer produced a table identifying each redaction that should be maintained,
explaining what the material is, and arguing for why each redaction is necessary. Zimmer' s Mot.
Seal 4-10, ECF No. 369. The Court has compared Zimmer's submission to the redacted portions
of Ms. Truman's report and finds that Zimmer's descriptions of the information contained in the
redacted portions are accurate. Zimmer's proposed redactions to Ms. Truman's report are

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ECF No. 349-5; ECF No. 362-1.
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wan·anted, because tbey are limited to (1) research and development information (including
product photographs tbat reveal design specifications, charts and graphs tbat reveal performance
data and testing parameters, and specific test results) and (2) information regarding Zimmer's
internal investigations, efforts at product improvement, and handling of complaints. Zimmer' s
interest in protecting this confidential information, preventing its competitors from obtaining an
undue advantage from it, outweighs the public's interest in accessing the information. Hypnotic
Hats, 335 F. Supp. 3d at 600; Uni-Sys., LLC v. U S. Tennis Ass 'n, Inc., No. 17 CV 147, 2019
WL 3753780, at *4 (E.D.N.Y. Aug. 8, 2019); Tropical Sails Corp. v. Yext, Inc., No. 14 Civ.
7582, 2016 WL 1451548, at *4 (S.D.N.Y. Apr. 12, 2016). If tbese data were publicly revealed,
competitors could simply copy aspects of Zimmer' s designs and profit from knowing which
side-by-side tests revealed disparities in product performance, or which design parameters
yielded observable results. Zimmer's proposed redactions to Ms. Truman's expert report are the
least-restrictive means to protect its interests; thus, tbe redactions are narrowly tailored, and tbey
are accepted.
Exhibits O and U

Exhibits O and U, submitted in connection witb Plaintiffs' Daubert motion, are judicial
documents subject to a significant presumption of public access. Christie's, 425 F. Supp. 3d at
221. Here, too, Zimmer provided the Court witb a table identifying each redaction and tbe basis
for it. Zimmer's Letter 2-5, ECF No. 394. Zimmer's descriptions of the information contained
in tbe redacted portions of Exhibits O and U are accurate. Zimmer' s redactions to Exhibits 0
and U are limited to (1) certain photographs taken with specialized equipment tbat show the
topography of Zimmer' s hip devices; (2) design specifications of its hip devices (such as taper
angles and measurements of various topographical features); and (3) confidential testing metbods

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and parameters used in the research and development of Zimmer' s hip devices, along with the
results of those tests. As with Ms. Truman's report, these redactions are warranted because if the
redacted portions were made public, they would reveal confidential research and development
information and data gleaned from internal tests and investigations, which Zimmer' s competitors
could use to gain an unearned competitive edge (thereby causing Zimmer a competitive injury).

Hypnotic Hats, 335 F. Supp. 3d at 600; Uni-Sys., 2019 WL 3753780, at *4; Tropical Sails, 2016
WL 1451548, at *4. Thus, higher values outweigh the presumption of public access to the few
redacted portions of Exhibits O and U; Zimmer's narrowly-tailored redactions are accepted.
Zimmer states that Plaintiffs' Exhibit V (excerpt of Cristina Piecuch's deposition
testimony), Plaintiffs' Exhibit W (email from Dr. Gilbert), and Plaintiffs' citations to
confidential material in their Daubert briefing do not need redaction. Zimmer' s Letter 6, ECF
No. 394. Accordingly, Plaintiffs are directed to file unredacted copies of those materials.
CONCLUSION
The Court accepts Zimmer' s proposed redactions to the expert reports of Dr. Iorio (supra
pp. 2-3) and Ms. Truman (supra pp. 3-4), and Plaintiffs' Exhibits O and U (supra pp. 4-5).
Plaintiffs are directed to publicly file an unredacted copy of their motion to exclude the
expert testimony of Dr. Gilbert, along with unredacted copies of Exhibits V and W to that motion

(supra p. 5).
The Clerk of Court is directed to close the entries at 18-md-2859 ECF numbers 369, 377,
and 394; and 18-mc-2859 ECF number 177.
Dated: New York, New York
June 3, 2021

SO ORDERED

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/ Llzu , J f,~,·tr;
HONORABLE PAUL A. CROTTY
United States District Judge

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