Salcedo v. Penn State Health Milton S. Hershey Medical Center
Filing
99
MEMORANDUM (Order to follow as separate docket entry 100 ) re 72 , 79 and 88 - SEE MEMORANDUM FOR COMPLETE DETAILS. Signed by Honorable Yvette Kane on 2/7/24. (dmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PABLO A. SALCEDO,
Plaintiff
v.
MILTON S. HERSHEY MEDICAL
CENTER,
Defendant
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No. 1:19-cv-02201
(Judge Kane)
MEMORANDUM
Before the Court is Defendant Milton S. Hershey Medical Center (“Defendant”)’s Motion
for Leave to file Under Seal its Motion for Summary Judgment (Doc. No. 72), Defendant’s
response (Doc. No. 83) to the Court’s July 20, 2023 Order (Doc. No. 74) directing Defendant to
show cause why the documents filed provisionally under seal in connection with its summary
judgment motion should remain sealed pursuant to the requirements of In re Avandia Marketing
Sales Practices and Products Liability Litigation, 924 F.3d 662 (3d Cir. 2019) (“Avandia”)
governing the sealing of materials filed in connection with a summary judgment motion, as well
as Defendant’s Motion to Seal its Reply in Further Support of its Motion for Summary Judgment
(Doc. No. 88). Also before the Court is Plaintiff Pablo A. Salcedo (“Plaintiff”)’s Motion for
Leave to File Documents Under Seal (Doc. No. 79), which was clarified by his response (Doc.
No. 90) to the Court’s August 14, 2023 Order to Show Cause (Doc. No. 81) directing Plaintiff to
show cause why the documents filed provisionally under seal in connection with his opposition
to Defendant’s summary judgment motion should remain sealed pursuant to Avandia.
For the reasons that follow, the Court will largely deny Defendant’s motions but will
grant Defendant’s motion for leave to file under seal its motion for summary judgment insofar as
it will retain several documents under seal and permit Defendant to file redacted versions of a
number of exhibits containing confidential non-party medical information. The Court will deny
Defendant’s motion to seal its Reply Brief in support of summary judgment and will direct the
Clerk of Court to unseal the brief. The Court will also largely deny Plaintiff’s motion, but will
grant the motion insofar as the Court will permit Plaintiff to file appropriately redacted versions
of three exhibits on the docket of this matter. Finally, the Court will instruct the Clerk of Court
to unseal numerous documents provisionally filed under seal by both parties.
I.
BACKGROUND
A.
Factual Background 1
While this case has an extensive factual background, the Court recites only the
background necessary to the resolution of the pending motion. Plaintiff was a first-year medical
resident employed by Defendant at the time of his suspension and termination. (Doc. No. 1 at 1.)
Plaintiff alleges that Defendant placed him on leave and fired him once he began to exercise his
right to “secure help for his disability.” (Id. at 2.) In his initial complaint, Plaintiff maintains
that he has anxiety and depressive disorder. (Id. ¶ 37.) Plaintiff observes that he has “had this
disability his whole life” and “[d]espite having this chronic condition, [he] has been successful in
his academic and social life because he learned to manage it.” (Id. ¶¶ 40–41.) Plaintiff alleges
that he requested “reasonable accommodations” from the Chief Residents of Defendant’s
Residency Program. (Id. ¶ 47.) Plaintiff claims that these requests, purportedly made in late
August of 2017, included a recommendation that he receive a quiet space for notetaking, the
ability to meet with colleagues in advance of shifts, sitting during work rounds, and the chance to
meet monthly with his own healthcare provider. (Id. ¶ 48.) Plaintiff maintains that the Chief
1
The facts provided herein are drawn from Plaintiff’s complaint and Defendant’s Statement of
Uncontested Material Facts in Support of its Motion for Summary Judgment. (Doc. Nos. 1; 7395.) This section is meant to provide context for the pending motions.
2
Residents found these requests to be reasonable. (Id. ¶ 49.)
On August 28, 2017, Plaintiff claims that he went to his own physician and secured a
written letter requesting two specific accommodations: “[a]ssignment to less stressful rotations
when possible” and “[a]ssignment to rotations which would allow for adequate sleep and time
off on the weekend when possible.” (Id. ¶ 54.) In October of 2017, Plaintiff maintains that he
attempted to contact Dr. Swallow, Program Director of the Residency Program, to request a
meeting that would address his accommodations. (Id. ¶ 59.) Plaintiff alleges that: (1) his
proposed accommodations were never implemented; (2) he was forced to continue working 78–
80 hours each week; and (3) his schedule forced him to use sleep aids. (Id. ¶¶ 60–62.) Plaintiff
alleges that the sleep aids caused his temporary impairment. (Id. ¶ 63.) Plaintiff claims to have
reported this impairment to Dr. Swallow in December of 2017. (Id.) Plaintiff notes that a
conversation between Dr. Swallow and Plaintiff on December 7, 2017, “did not discuss
[Plaintiff]’s request for accommodation.” (Id. ¶ 64.) Instead, after having been temporarily
removed from active service, Plaintiff maintains that Dr. Swallow directed him to secure a
fitness for duty assessment before he could return to his job as a medical resident. (Id. ¶ 65.)
Plaintiff notes that he was cleared to return to full duty on December 11, 2017. (Id. ¶ 67.)
Plaintiff claims that, upon returning to full duty, he was still scheduled for eighty (80) hours of
work per week. (Id. ¶ 72.)
On February 23, 2018, Dr. Snyder, one of Defendant’s employees, wrote to the Chief
Residents about an incident where Plaintiff allegedly had to leave his hospital shift early because
of his anxiety and depression. (Id. ¶ 84.) Following this incident, Plaintiff claims that
Defendant’s staff held a series of meetings to discuss his status in the Residency Program and his
need for accommodations. (Id. ¶¶ 85, 89, 90, 92–94.) Plaintiff maintains that the
3
accommodations were never implemented. (Id.)
On February 28, 2018, Plaintiff received a communication from Dr. Munyon on behalf of
the Core Competency Committee (“CCC”). (Id. ¶ 95.) This communication informed Plaintiff
that the CCC had received a letter from Plaintiff’s psychiatrist and would discuss the contents of
the letter at some point during the following week. (Id. ¶ 95.) On March 6, 2018, Plaintiff was
notified that the CCC recommended his removal from clinical service. (Doc. No. 73-95 ¶ 139.)
Plaintiff’s leave of absence from the Residency Program was extended to March 26, 2018. (Id. ¶
140.) Plaintiff was paid, with benefits, until June 30, 2018, at which time his employment was
terminated by Defendant. (Id. ¶ 141.) On September 5, 2018, Plaintiff filed a Charge of
Discrimination with the Equal Opportunity Employment Commission. (Id. ¶ 144.)
B.
Procedural Background
On December 23, 2019, Plaintiff filed the above-captioned action (id. ¶ 145), claiming
that Defendant discriminated against him in violation of the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“RA”) (Doc. No. 1 at 2). Plaintiff
also asserts pendant state claims pursuant to the Pennsylvania Human Relations Act (“PHRA”).
(Id.) On February 24, 2020, Defendant filed an answer (Doc. No. 7) and the parties engaged in a
period of discovery. After discovery closed, the Court set a deadline of July 17, 2023 for the
filing of any dispositive motions. (Doc. No. 67.) On that date, Defendant filed a Motion for
Leave to File Under Seal its Motion for Summary Judgment. (Doc. No. 72.) In its
accompanying brief, Defendant argued that its Motion for Summary Judgment would include
“non-party patient records, personnel-related records referencing physician peer-reviewed
evaluations and notes of Plaintiff’s competencies, and proprietary and business information
relating to a healthcare facility.” (Doc. No. 72-1 at 2.) Also on that date, Defendant filed its
4
Motion for Summary Judgment (Doc. No. 73), a brief in support of that motion (Doc. No. 73-1),
relevant exhibits (Doc. No. 73-5 through 73-93), and a Statement of Material Facts (Doc. No. 7395), all of which were filed provisionally under seal in light of Defendant’s pending motion for
leave to file under seal its motion for summary judgment. Thereafter, on July 20, 2023, the
Court issued an Order directing Defendant to show cause as to why “Defendant’s motion for
summary judgment (Doc. No. 73) and its related filings (Doc. Nos. 73-1 through 73-95) should
not be made a part of the publicly available docket” under Avandia. (Doc. No. 74 at 3.) The
Court set a July 31, 2023, deadline to comply. (Id.) On July 31, 2023, the Court granted
Defendant an unopposed motion for an extension of time to comply with the show cause Order,
giving Defendant until August 14, 2023, to respond. (Doc. No. 76.)
On August 8, 2023, Plaintiff filed a Motion for Leave to File Documents Under Seal.
(Doc. No. 79.) That same day, Plaintiff filed a Memorandum in Support of Plaintiff’s Motion to
Seal Documents (Doc. No. 79-1), as well as his response to Defendant’s Statement of
Undisputed Facts (Doc. No. 80-6), one hundred and fifty-four (154) related exhibits (Doc. No.
80-1 through 80-5, 80-7), and his Brief in Opposition to Defendant’s Motion for Summary
Judgment (Doc. No. 80), all of which were filed provisionally under seal in light of Plaintiff’s
pending motion for leave to file documents under seal. On August 14, 2023, the Court issued a
show cause Order directing Plaintiff to show cause as to why Docket Numbers 80 through 80-7
“should not be made a part of the publicly available docket in this matter” under Avandia. (Doc.
No. 81 at 4.)
Also on August 14, 2023, Defendant filed a Memorandum of Law in Support of
Defendant’s Response to the Order to Show Cause. (Doc. No. 83.) On August 21, 2023,
Defendant filed a Motion to Seal its Reply in Further Support of its Motion for Summary
5
Judgment. (Doc. No. 88.) That same day, Defendant filed a Memorandum of Law in Support of
its Motion to Seal its Reply in Further Support of its Motion for Summary Judgment. (Doc. No.
89.)
On August 24, 2023, Plaintiff filed a Memorandum of Law in Support of Plaintiff’s
Motion to Seal Via Redaction Certain Documents Filed in Response to Summary Judgment.
(Doc. No. 90.) In this filing, Plaintiff greatly narrowed his sealing request. (Id. at 1.)
Accordingly, the parties’ motions to seal and responses to the Court’s show cause Orders are ripe
for resolution.
II.
LEGAL STANDARD
The Third Circuit’s opinion in Avandia confirmed its earlier holding that a common law
right of access applies to judicial records, stating that there exists a “presumptive right of public
access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the
material filed in connection therewith.” See Avandia, 924 F.3d at 672 (citing In re Cendant
Corp., 260 F.3d at 192). The Third Circuit reiterated that “documents filed in connection with a
motion for summary judgment are judicial records.” See id. (citing Republic of the Philippines
v. Westinghouse Elec. Corp., 949 F.2d 653, 660–62 (3d Cir. 1991)). However, Avandia
recognized that “the common law right of access is ‘not absolute’” and stated that “[t]he party
seeking to overcome the presumption of access bears the burden of showing ‘that the interest in
secrecy outweighs the presumption.’” See id. (quoting Bank of Am. Nat’l Tr. & Sav. Ass’n v.
Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). The Third Circuit held that “[t]he
movant must show ‘that the material is the kind of information that courts will protect and that
disclosure will work a clearly defined and serious injury to the party seeking closure.’” See id.
(quoting Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (internal quotations omitted)).
6
The Third Circuit then detailed the nature of a district court’s obligation in determining
whether a litigant has met its burden to show that the presumptive right of access has been
overcome, stating:
[T]he District Court must articulate the compelling, countervailing interests to be
protected, make specific findings on the record concerning the effects of
disclosure, and provide[] an opportunity for interested third parties to be heard. In
delineating the injury to be prevented, specificity is essential. Broad allegations
of harm, bereft of specific examples or articulated reasoning, are insufficient.
[C]areful factfinding and balancing of competing interests is required before the
strong presumption of openness can be overcome by the secrecy interests of
private litigants. To that end, the District Court must conduct[] a document-bydocument review of the contents of the challenged documents.
See id. at 672–73 (cleaned up).
The Third Circuit in Avandia discussed not only the common law right of access to
judicial records but also the First Amendment right of access to judicial proceedings, which
“requires a much higher showing than the common law right [of] access before a judicial
proceeding can be sealed.” See Avandia, 924 F.3d at 673 (quoting In re Cendant Corp., 260 F.3d
at 198 n.13). “It remains an open question in this Circuit whether the First Amendment right of
access applies to records of summary judgment proceedings.” Id. The majority in Avandia
declined to address the applicability of the First Amendment right of access to summary
judgment materials under the circumstances of that case, where the litigant had not met its
burden to overcome the presumptive common law right of access to judicial records. See id. at
679–80. However, as to the First Amendment right of access, the court stated that “[w]e use a
two-prong test to assess whether the right of access attaches: (1) the experience prong asks
‘whether the place and process have historically been open to the press’; and (2) the logic prong
evaluates ‘whether public access plays a significant positive role in the functioning of the
particular process in question.’” See id. at 673 (quoting N. Jersey Media Grp. Inc. v. United
7
States, 836 F.3d 421, 429 (3d Cir. 2016)). If both prongs are met, the First Amendment right of
access presumptively applies, and this presumption can be rebutted “only if [the party seeking
closure is] able to demonstrate ‘an overriding interest [in excluding the public] based on findings
that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”
See id. (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984)). In
declining to consider the applicability of the First Amendment right of access under the
circumstances presented to it in Avandia, 2 the Court of Appeals directed that “[i]f on remand the
District Court concludes that any of the sealed documents merits continued confidentiality under
the common law right of access, then the Court should also consider the parties’ arguments
regarding the First Amendment right of public access.” See Avandia, 924 F.3d at 680.
III.
DISCUSSION
The Court first addresses Defendant’s Motion for Leave to File Under Seal its Motion for
Summary Judgment and its response to the Court’s July 20, 2023 Order—and whether Defendant
has met its burden to show that its interest in secrecy outweighs the common law presumption of
access to judicial records with respect to its brief in support of its motion for summary judgment
as well as dozens of exhibits filed alongside Defendant’s brief—before addressing Defendant’s
Motion to Seal its Reply in Further Support of its Motion for Summary Judgment. Finally, the
Court will address Plaintiff’s Motion for Leave to File Documents Under Seal, as well as his
response to the Court’s August 14, 2023 Order.
2
Judge Restrepo, in an opinion concurring in part and dissenting in part, concluded that the First
Amendment right of public access extends to summary judgment materials. See id. at 681–84.
The Second and Fourth Circuits have held that the First Amendment right of public access
extends to summary judgment materials. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 124 (2d Cir. 2006); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988).
8
A.
Defendant’s Motion for Leave to File Under Seal its Motion for Summary
Judgment (Doc. No. 72)/Response to the Court’s July 20, 2023 Order (Doc.
No. 83)
By way of its motion, Defendant seeks to maintain under seal its motion for summary
judgment, brief in support of that motion, and all supplemental materials attached therein. (Doc.
No. 72.) The Court first addresses Defendant’s arguments pertaining to its brief in support of its
motion for summary judgment, before turning to Defendant’s arguments related to the continued
sealing of filings submitted in support of its summary judgment motion.
1.
Defendant’s Brief in Support of its Motion for Summary Judgment
Defendant’s motion seeks to maintain under seal its brief in support of its motion for
summary judgment, Docket Number 73-1. Defendant’s brief is fifty-eight (58) pages and
comprehensively lays out Defendant’s arguments in attempting to persuade the Court to grant its
motion for summary judgment. (Doc. No. 73-1.)
In Defendant’s response to the Court’s show cause Order, Defendant argues that the
confidential exhibits discussed in its Brief in Support of its Motion for Summary Judgment “are
inextricably intertwined with the reasons supporting the [Defendant’s] reasons for dismissal” of
Plaintiff. (Doc. No. 83 at 10.) Defendant claims that the filing of its brief “on the public docket
would impair the Medical Center’s duty to its patients and impact its obligations under state and
federal law.” (Id.) Defendant also maintains that, should its Brief in Support of its Motion for
Summary Judgment be unsealed, it “would undermine the protections afforded by the Peer
Review Protection Act [“PRPA”] privilege and defeat the legislature’s intent for the statutory
privilege.” (Id.) 3
3
The relevant text of the PRPA reads:
9
As an initial matter, Defendant’s statutory argument under the PRPA is insufficient to
meet its Avandia burden. The Court observes that “[f]ederal courts are to apply federal law of
privilege to all elements of claims except those as to which State law supplies the rule of
decision.” See Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000) (internal quotations omitted);
see also Fed. R. Evid. 501. Here, the ADA supplies the rule of decision. Even though Plaintiff
asserts both federal claims under the ADA and RA, as well as state law claims under the PHRA,
courts in the Third Circuit have widely recognized that the PHRA is merely the state analog of
the ADA. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (stating that
“we will only discuss Taylor's ADA claim because our analysis of an ADA claim applies equally
to a PHRA claim”). Accordingly, federal privilege law applies in this case. Since it is
commonly recognized that “Congress has not statutorily enacted a medical peer review privilege
. . . [n]or does such a privilege exist under federal common law,” the Court finds that the PRPA
does not prevent the Court from unsealing Defendant’s Brief in Support of its Motion for
Summary Judgment. See Weiss ex rel. Est. of Weiss v. County of Chester, 231 F.R.D. 202, 205
(E.D. Pa. 2005) (denoting that “Congress has not statutorily enacted a medical peer review
privilege”). Another court in this circuit, addressing this precise issue, wrote:
[c]ritically, the Court also fails to see how Pennsylvania’s privilege law is directly
relevant under the Avandia standard—if anything, privilege may come into play
in terms of courts evaluating and adopting protective orders, but the Third Circuit
has made clear in Avandia that when it comes to analyzing the sealing of judicial
records, the standard for protective orders is not the appropriate standard.
The proceedings and records of a review committee shall be held in confidence
and shall not be subject to discovery or introduction into evidence in any civil
action against a professional health care provider arising out of the matters which
are the subject of evaluation and review by such committee . . . .
See 63 Pa. C.S. § 425.4.
10
See United States ex rel. Doe v. Luketich, No. 19-cv-00495, 2022 WL 672258, at *4 (W.D. Pa.
Mar. 7, 2022). Upon consideration of the foregoing, the Court finds that the PRPA does not, as a
matter of privilege, require the Court to retain peer review proceedings under seal on the public
docket in connection with summary judgment filings.
That said, the PRPA is relevant insofar as the Court evaluates whether Defendant can
overcome the presumptive common law right of access to judicial records. To reiterate, Avandia
requires a party seeking to overcome the presumptive common law right of access to
demonstrate both (1) “that the material is the kind of information that courts will protect” and (2)
“that disclosure will work a clearly defined and serious injury to the party seeking closure.” See
Avandia, 924 F.3d at 672 (cleaned up).
Here, Defendant’s Brief in Support of its Motion for Summary Judgment contains several
references to the CCC, discussing the CCC’s concerns regarding Plaintiff’s “Patient Care and
Medical Knowledge” milestones. (Doc. No. 73-1 at 19.) The brief also contains language from
a letter sent by the CCC to Plaintiff discussing his removal from the Residency Program. (Id. at
20.) Additionally, the brief includes references to Defendant’s “legitimate non-discriminatory
reasons for its actions concerning Plaintiff’s employment.” (Id. at 33.) However, the brief itself
does not contain details of proceedings or deliberations of the CCC. The Court recognizes that
the brief discusses evaluative “records” utilized by the CCC to inform its decision making with
regard to its evaluation of residents. See (Doc. No. 73-1 at 26, 29, 56). These references are
vague and unspecific. In considering the foregoing, the Court is unpersuaded by Defendant’s
argument that the PRPA supports the premise that its brief in support of its motion for summary
judgment contains “the kind of information that courts will protect.” See Avandia, F.3d at 924.
The Court further finds that, even assuming Defendant made such a showing, Defendant has
11
simply failed to demonstrate that disclosure of the peer review information in its brief, namely
the opaque references to CCC records, “will work a clearly defined and serious injury” to it. See
id. Because Defendant offers nothing more than “[b]road allegations of harm, bereft of specific
examples or articulated reasoning,” see In re Cendant Corp., 260 F.3d at 194, the Court will deny
in part Defendant’s Motion to Seal its Motion for Summary Judgment as to its brief and will
direct the Clerk of Court to unseal Defendant’s brief in support of its motion for summary
judgment. See Pro., Inc. v. Progressive Cas. Ins. Co., No. 17-cv-00185, 2020 WL 502626, at *3
(W.D. Pa. Jan. 31, 2020) (holding that when a party provides only “conclusory assertions that the
entire summary judgment record, include its brief, will contain confidential . . . information,” this
is insufficient to rebut the presumption of public access).
2.
Docket Numbers 73-73 and 73-75 through 73-78
The Court next examines Defendant’s arguments pertaining to Docket Numbers 73-73,
and 73-75 through 73-78, which are exhibits submitted in support of its motion for summary
judgment. Defendant refers to these documents as the “Patient Exhibits,” because all five
exhibits contain personal medical information relating to individuals who were treated by
Defendant’s employees and medical residents. The Court reviews each exhibit in turn.
a.
Docket Number 73-73
Docket Number 73-73 is an email synopsis containing the details of an incident during
which Plaintiff is alleged to have forgotten to report the admission of a dangerously ill patient
while working a hospital shift, resulting in the patient’s eventual transfer to the Intensive Care
Unit. See (Doc. No. 73-73). The email was circulated between several physicians who observed
Plaintiff’s actions that day, as well as other physicians who worked in Defendant’s Residency
Program. See (id.).
12
Defendant argues that Docket Number 73-73 contains the confidential health information
of a non-party. (Doc. No. 89 at 5–6.) Defendant posits that both the common law, as well as
federal and state statutory authority, support its position that the presumption of public access
can be rebutted. (Id. at 5–7); see also Avandia, 924 F.3d at 672.
Upon review of the relevant briefing, cited authority, and Docket Number 73-73, the
Court finds that Defendant has met its burden to demonstrate that its interest in secrecy
outweighs the presumption of public access to judicial records as to Docket Number 73-73, as
exposure of “patient treatment and diagnosis” information would inhibit Defendant’s ability to
protect patient privacy while continuing to serve the needs of patients. (Doc. No. 89 at 5.)
Defendant persuasively argues that no private individual would want documents that outline their
medical conditions, diagnoses, and treatment plans to be available for public viewership, and
further that medical providers also face particularized harms stemming from the potential public
disclosure of patient treatment and diagnostic plans. The knowledge that statements made during
the course of treatment may eventually be available for public viewing could change how
medical personnel go about their daily jobs and alter the types, frequency, or nature of the
recommendations they offer to patients. See Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138
S. Ct. 2361, 2374 (2018) (noting that “[d]octors help patients make deeply personal decisions,
and their candor is crucial”) (citation omitted). Because of the non-party privacy concerns, as
well as the potential chilling effect on medical professionals providing care, the Court finds that
Defendant has demonstrated that the “interest in secrecy” here is great. See Avandia, 924 F.3d at
672.
As discussed supra, Avandia requires a party seeking to overcome the presumptive
common law right of access to demonstrate both (1) “that the material is the kind of information
13
that courts will protect” and (2) “that disclosure will work a clearly defined and serious injury to
the party seeking closure.” See Avandia, 924 F.3d at 672 (cleaned up). Defendant, by citing
authority from the Third Circuit, HIPAA, and Pennsylvania law, has demonstrated that the nonparty confidential medical information contained within Docket Number 73-73 is “the kind of
information that courts will protect.” See id.; see also Davis v. Elwyn, Inc., No. 20-cv-05798
2021 WL 4902333, at *4 (E.D. Pa. Oct. 20, 2021) (stating that “[n]onparties’ medical
information is precisely the kind of information that courts will protect”) (citation omitted);
Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 16-cv-02145, 2019 WL 5394575, at *7 (M.D.
Pa. Oct. 22, 2019) (discussing how non-party privacy interests are implicated through the
disclosure of medical records). Further, Defendant has sufficiently demonstrated that disclosure
of non-party confidential medical information “will work a clearly defined and significant
injury” see id., to both Defendant and non-parties—namely, the involuntary disclosure of
sensitive medical information that health care providers generally must keep confidential. See
Davis, 2021 WL 4902333, at *4 (discussing the inherent harm to non-party patients through the
public disclosure of information “which those patients have an interest in keeping private”); see
also United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (citation
omitted) (stating that “information about one’s body and state of health is [a] matter [in] which
the individual is ordinarily entitled to retain within the private enclave where he may lead a
private life”). Accordingly, the Court finds that Defendant has met its burden to demonstrate
that its interest in secrecy outweighs the presumption of public access to summary judgment
materials such that the Court will permit Defendant to file a redacted version of Docket Number
73-73 that removes all references to non-party confidential medical information.
The Court concludes that it is more appropriate to require Defendant to redact the non-
14
party confidential medical information from Docket Number 73-73 as opposed to retaining the
entirety of Docket Number 73-73 under seal, as requested by Defendant. See Halman Aldubi
Provident & Pension Funds Ltd. v. Teva Pharms. Indus. Ltd., No. 20-cv-04660, 2023 WL
1100995, at *7 (E.D. Pa. Jan. 30, 2023) (finding that proposed redactions that are limited in
scope are preferable to wholesale sealing); see also McCowan v. City of Philadelphia, No. 19-cv03326, 2021 WL 3737204, at *4 (E.D. Pa. Aug. 24, 2021) (stating that “redaction only
marginally affects the public’s right to access materials filed in relation to judicial proceedings”).
“Therefore, where possible, parties should propose redactions, rather than placing a whole
document under seal.” Del Nero v. NCO Fin. Sys., Inc., No. 21-cv-04823, 2021 WL 2375892, at
*2 (E.D. Pa. June 10, 2021). Accordingly, the Court will retain Docket Number 73-73
temporarily under seal on the docket of this matter while affording Plaintiff the opportunity to
file on the Court’s docket a version of this email synopsis redacted to remove non-party
confidential medical information. 4
4
Avandia instructs that, if a district court finds that any documents merit continued sealing
under the common law right of access, it “should also consider the parties’ arguments regarding
the First Amendment right of public access.” See Avandia, 924 F.3d at 680. Defendant did not
address the First Amendment standard in its Memorandum of Law in Support of its Motion for
Leave to File Under Seal (Doc. No. 72-1), its response to the Court’s show cause Order (Doc.
No. 83), or in its subsequent Memorandum of Law in Support of its Motion to Seal (Doc. No.
89). Accordingly, in addressing Defendant’s sealing requests, with regard to each of the exhibits
ordered sealed by the Court upon its assessment of the common law right of access to judicial
records, the Court will assume that the First Amendment right of public access attaches to those
exhibits. Considering this Court’s narrowly tailored approach of favoring redaction over
wholesale sealing, the Court finds that Defendant can meet its burden to satisfy the First
Amendment’s rigorous standard with regard to Docket Number 73-73. The Court is guided by
the historical recognition within this circuit that confidential medical information merits
protection from public dissemination. See Westinghouse Elec. Corp., 638 F.2d at 577
(describing the importance of protecting intimate personal health information); see also Davis,
2021 WL 4902333, at *6–7 (discussing the importance of keeping confidential medical
information off the public docket); Wartluft, 2019 WL 5394575, at *6 (highlighting the
appropriateness of redaction to prevent dissemination of non-party confidential medical
information).
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b.
Docket Numbers 73-75 through 73-78
Docket Numbers 73-75 through 73-78 are medical reports containing the physical
examination results, medication recommendations, treatment plans, medical histories, and
diagnostic information for certain of Defendant’s non-party medical patients. See (Doc. Nos. 7375 through 73-78). Patient names are already redacted from each of these exhibits. See (id.).
Defendant argues that Docket Numbers 73-75 through 73-78 contain the confidential
medical information of non-parties, thus allowing Defendant to overcome the presumptive right
of public access to judicial records. (Doc. No. 83 at 5–6.) Defendant asserts that relevant
authority supports its position that non-party confidential health information is the kind of
information that courts generally keep sealed on the public docket. (Id.); see also Avandia, 924
F.3d at 672. Defendant argues that Docket Numbers 73-75 through 73-78 should be sealed
because they contain “patients duration of admission, vitals, treating physicians, treatments, and
diagnoses.” (Doc. No. 83 at 5.) Defendant cites its “duty” and in general terms its “legal
obligation under state and federal law to keep [their] patients’ confidential information private.”
(Id.) Defendant cites several cases from this circuit that recognize the duty of doctors and
healthcare providers to keep patient treatment plans and communications private, albeit not in the
Avandia context. (Id. at 6–7); see also Rodriguez-Ocasio v. L. Offs. of Joseph Molinaro, LLC.,
No. 17-cv-11926, 2018 WL 1773544, at *2 (D.N.J. Apr. 13, 2018) (stating that “physicians and
hospitals are under a common law duty to maintain the confidentiality of patient records and
information”) (citation omitted); Vnuk v. Berwick Hosp. Co., No. 14-cv-01432, 2015 WL
4984974, at *7 (M.D. Pa. Aug. 19, 2015) (specifying that “[i]n the absence of a specific
exception, [d]octors have an obligation to their patients to keep communications, diagnosis, and
16
treatment completely confidential”) (citation omitted). Defendant also argues that the patients
discussed in these exhibits “have not authorized the Medical Center to release their records.”
(Doc. No. 83 at 6.)
Upon review of Docket Numbers 73-75 through 73-78, the Court finds that “patient
treatment and diagnoses” information is “the kind of information that courts will protect.” See
Avandia, 924 F.3d at 672. As discussed supra, Defendant persuasively argues that no private
individual would want documents that outline their medical conditions, diagnoses, and treatment
plans to be placed in the public eye. And as discussed with regard to Docket Number 73-73,
medical providers themselves also have privacy interests at stake. The knowledge that
statements made during patient treatment could later be made visible to the public at large, may
change how medical personnel go about their daily jobs. See Becerra, 138 S.Ct. at 2364.
Because of the privacy concerns for non-parties and medical providers, in addition to the
potential chilling affect that the prospect of public disclosure could have on medical providers as
they formulate treatment plans, Defendant has demonstrated that the “interest in secrecy” here is
great. See Avandia, 924 F.3d at 672. The Court further finds that Defendant has demonstrated
that the disclosure of non-party medical information, namely family histories, treatment plans,
physical examination results, and other intensely personal information contained in Docket
Numbers 73-75 through 73-78 “will work a clearly defined and serious injury” both to Defendant
and its employees, as well as to the non-parties to whom Defendant provides care. See id.; see
also Davis, 2021 WL 4902333, at *4 (discussing how non-parties are injured when confidential
medical records are disclosed); Vnuk, 2015 WL 4984974, at *7 (discussing the duty of
healthcare providers to protect patient confidential medical information). Accordingly, with
regard to Docket Numbers 73-75 through 73-78, the Court is persuaded that Defendant has met
17
its burden to demonstrate that its interest in secrecy outweighs the presumptive public right of
access to these exhibits.
However, while “[r]edactions are the most narrowly tailored way” to balance the privacy
interests implicated and the public’s right to access the records pertinent to the legal claim being
heard, see Davis, 2021 WL 4902333, at *6, there are circumstances where redactions are
insufficient to protect the privacy interests of non-parties. This is such an instance. The Court
finds that, as it pertains to Docket Numbers 73-75 through 73-78, the wholesale sealing of each
exhibit is the most narrowly-tailored way to protect non-parties confidential medical information.
Cf. Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 16-cv-02145, 2020 WL 1124771, at *6
(M.D. Pa. Mar. 6, 2020) (finding that redaction is more appropriate when the court finds that
specific redactions as opposed to wholesale sealing would sufficiently protect the implicated
privacy interests). Each of these exhibits contains detailed medical histories, illness reports,
notes of conversations between physicians and patients, and medical assessments/care plans.
Accordingly, the redaction of all of said information is tantamount to the wholesale sealing of the
exhibits and the Court will retain Docket Numbers 73-75 through 73-78 under seal on the docket
of this matter. 5
5
As stated supra at note 4, Avandia instructs that, if a district court finds that any documents
merit continued sealing under the common law right of access, it “should also consider the
parties’ arguments regarding the First Amendment right of public access.” See Avandia, 924
F.3d at 680. Defendant did not address the First Amendment standard in its Memorandum of
Law in Support of its Motion for Leave to File Under Seal (Doc. No. 72-1), its response to the
Court’s show cause Order (Doc. No. 83), or in its subsequent Memorandum of Law in Support
of its Motion to Seal (Doc. No. 89). Accordingly, in addressing Defendant’s sealing requests,
with regard to each of the exhibits ordered sealed by the Court upon its assessment of the
common law right of access to judicial records, the Court will assume that the First Amendment
right of public access attaches to those exhibits. Considering this Court’s narrowly tailored
approach of favoring redaction over wholesale sealing, except in this instance as it pertains
exclusively to Docket Numbers 73-75 through 73-78, the Court finds that Defendant can meet its
burden to satisfy the First Amendment’s rigorous standard. The Court is guided by the historical
18
3.
Docket Numbers 73-29, 73-33, 73-34, 73-37, 73-38, 73-42, 73-43, 73-44,
73-45, 73-46, 73-47, 73-48, 73-49, 73-50, 73-51, 73-53, 73-54, 73-55, 7356, 73-58, 73-59, 73-60, 73-62, 73-63, 73-64, 73-65, 73-66, 73-68, 73-69,
73-71, 73-72, 73-73, 73-80, 73-81, 73-85, 73-86, 73-87, 73-89, and 80-4
at 34 6
Defendant next argues that thirty-nine (39) exhibits, which it labels the “CCC Exhibits,”
should be sealed from the public docket. (Doc. Nos. 83 at 8; 89 at 8.) The CCC Exhibits are
wide-ranging. Contained within them are evaluations of Plaintiff’s performance as a medical
resident, email correspondence between members of the CCC, correspondence between Plaintiff
and individual members of the CCC, as well as CCC meeting minutes that discuss the CCC’s
plans to handle the remediation and continued supervision of medical residents.
In support of its sealing request, Defendant explains that the CCC Exhibits contain
“numerous unredacted evaluations, remediation plan documents, and other documents and
communications reviewed or sent between members of the Core Competency Committee.”
(Doc. No. 83 at 8.) Defendant cites the PRPA privilege, arguing that the “Medical Center is
obligated to maintain the confidentiality of [these] documents.” (Id.) Defendant posits that in
enacting the PRPA, the legislature intended to “foster candor and frankness among review
committees.” (Doc. No. 89 at 9.) Defendant emphasizes that if “this Court were to unseal these
recognition within this circuit that confidential medical information merits protection from
public dissemination. See Westinghouse Elec. Corp., 638 F.2d at 577 (describing the importance
of protecting intimate personal health information); see also Davis, 2021 WL 4902333, at *6–7
(discussing the importance of keeping confidential medical information off the public docket);
Wartluft, 2019 WL 5394575, at *6 (highlighting the appropriateness of redaction to prevent
dissemination of non-party confidential medical information).
6
Here, Defendant improperly cites the exhibit numbers. When Defendant filed its motion for
summary judgment, it also filed its brief in support as an attachment to said motion. See (Doc.
No. 73-1). The certificate of non-concurrence (73-2), the proposed order (73-3), and the
affidavit of service (73-4) were also filed simultaneously, but Defendant did not account for this
when discussing the exhibits that it argues should remain sealed. Accordingly, because
Defendant did not name these exhibits, leaving the Court only able to identify them by their
docket numbers, the Court felt it important to highlight the discrepancy here.
19
confidential documents, it would frustrate the legislature’s intent . . . .” (Id.) Defendant further
explains that, when the CCC meets, it reviews “the progress of all current resident-physicians” in
evaluating if those residents have met the “milestones of training.” (Id.) To that end, Defendant
argues that public disclosure of the information contained in the CCC Exhibits would inhibit its
ability to effectively operate its Medical Residency program. (Id.)
The Court has undertaken an exhaustive review of each document that Defendant seeks
to seal. The listed exhibits include emails and memoranda that discuss Plaintiff’s remediation
plan, the CCC’s broader deliberations, as well as documents used by the CCC to determine
whether Plaintiff met the milestones required by the medical Residency Program. Several
documents contain confidential non-party medical information. 7
As discussed more fully supra, Avandia requires a party seeking to overcome the
presumptive common law right of access to demonstrate both (1) “that the material is the kind of
information that courts will protect” and (2) “that disclosure will work a clearly defined and
serious injury to the party seeking closure.” See Avandia, 924 F.3d at 672 (cleaned up). The
Court finds that Defendant has demonstrated that several of the CCC Exhibits contain non-party
confidential medical information, which is “the kind of information that courts will protect.” See
id. Specifically, Docket Numbers 73-69, 73-71, and 73-73 contain non-party confidential
medical information. 8 The Court further finds that Defendant has shown that the public
dissemination of this non-party confidential medical information would work a “clearly defined
and serious injury” both to Defendant as it seeks to protect patient privacy, and to the non-parties
7
The table at the end of this section details each exhibit and the nature of the Court’s findings
regarding the privacy interests implicated therein.
8
Docket Number 73-73 was also discussed supra. It was classified by Defendant as both a
“Patient Exhibit” and “CCC Exhibit.” (Doc. No. 89 at 5, 8.)
20
to whom Defendant provides care. See id.; see also Westinghouse Elec. Corp., 638 F.2d at 577
(discussing the importance of protecting intimate personal health information); Davis, 2021 WL
4902333 at *4 (discussing how non-parties are injured when confidential medical records are
disclosed). Accordingly, with regard to Docket Numbers 73-69, 73-71, and 73-73, the Court is
persuaded that Defendant has met its burden to demonstrate that its interest in secrecy outweighs
the presumptive public right of access to these exhibits such that the Court will permit Defendant
to file redacted versions of said exhibits that remove non-party confidential medical information
contained therein. 9 As discussed more fully supra, the Court concludes that it is more
appropriate to require Defendant to redact the non-party confidential medical information as
opposed to retaining the entirety of Docket Numbers 73-69, 73-71, and 73-73 under seal, as
requested by Defendant. See Teva Pharms. Indus. Ltd., 2023 WL 1100995, at *7 (finding that
redactions that are limited in scope are preferable to sealing). Accordingly, the Court will retain
Docket Numbers 73-69, 73-71, and 73-73 temporarily under seal on the docket of this matter
9
As discussed supra, Avandia instructs that, if a district court finds that any documents merit
continued sealing under the common law right of access, it “should also consider the parties’
arguments regarding the First Amendment right of public access.” See Avandia, 924 F.3d at
680. Defendant did not address the First Amendment standard in its Memorandum of Law in
Support of its Motion for Leave to File Under Seal (Doc. No. 72-1), its response to the Court’s
show cause Order (Doc. No. 83), or in its subsequent Memorandum of Law in Support of its
Motion to Seal (Doc. No. 89). Accordingly, in addressing Defendant’s sealing requests, with
regard to each of the exhibits ordered sealed by the Court upon its assessment of the common
law right of access to judicial records, the Court will assume that the First Amendment right of
public access attaches to those exhibits. Considering this Court’s narrowly tailored approach of
favoring redaction over wholesale sealing, the Court finds that Defendant can meet its burden to
satisfy the First Amendment’s rigorous standard with regard to Docket Numbers 73-69, 73-71,
and 73-73. The Court is guided by the historical recognition within this circuit that confidential
medical information merits protection from public dissemination. See Westinghouse Elec. Corp.,
638 F.2d at 577 (describing the importance of protecting intimate personal health information);
see also Davis, 2021 WL 4902333, at *6–7 (discussing the importance of keeping confidential
medical information off the public docket); Wartluft, 2019 WL 5394575, at *6 (highlighting the
appropriateness of redaction to prevent dissemination of non-party confidential medical
information).
21
while affording Defendant the opportunity to file on the Court’s docket versions of these
documents redacted to remove non-party confidential medical information.
However, upon review of the remaining thirty-six (36) “CCC Exhibits”—Docket
Numbers 73-29, 73-33, 73-34, 73-37, 73-38, 73-42, 73-43, 73-44, 73-45, 73-46, 73-47, 73-48,
73-49, 73-50, 73-51, 73-53, 73-54, 73-55, 73-56, 73-58, 73-59, 73-60, 73-62, 73-63, 73-64, 7365, 73-66, 73-68, 73-72, 73-80, 73-81, 73-85, 73-86, 73-87, 73-89, and 80-4 at 34—the Court is
unpersuaded that Defendant has met its burden to demonstrate that its interest in secrecy
outweighs the presumption of public access to these judicial records. These exhibits do not
contain any confidential non-party medical information, nor any other “kind of information that
courts will protect.” See Avandia, 924 F.3d at 672. Further, even if the Court assumes that these
exhibits contain such information, Defendant has not met its burden to demonstrate that the
disclosure of the information contained therein “will work a clearly defined and serious injury”
to Defendant or any of the non-parties to whom Defendant provides medical care. See id. The
Court concludes that Defendant has failed to overcome the presumptive right of access to the
material contained in these thirty-six exhibits. Accordingly, the Court will instruct the Clerk of
Court to unseal these exhibits in their entirety. The table that follows summarizes the Court’s
conclusions regarding the “CCC Exhibits.”
Document Number
73-29
Brief Description
Evaluation of Plaintiff
73-33
Notes of Meeting Between Plaintiff and Dr.
Nicole Swallow
E-Mail by Dr. Britt Marshall Discussing
Plaintiff
Follow Up Note to Plaintiff from Dr. Nicole
Swallow
E-Mail Correspondence Between Plaintiff
and Dr. Nicole Swallow
CCC Meeting Minutes (12/12/17)
73-34
73-37
73-38
73-42
22
Holding
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
73-43
Evaluation of Plaintiff
73-44
Evaluation of Plaintiff
73-45
Evaluation of Plaintiff
73-46
Evaluation of Plaintiff
73-47
Evaluation of Plaintiff
73-48
Evaluation of Plaintiff
73-49
Evaluation of Plaintiff
73-50
CCC Follow Up Note Signed by Plaintiff
73-51
CCC Meeting Minutes (12/12/17)
73-53
CCC Follow Up Note Signed by Plaintiff
73-54
CCC Warning Letter to Plaintiff (12/14/17)
73-55
E-Mail Correspondence Between Plaintiff
and Dr. Nicole Swallow
Email from Plaintiff to Dr. Swallow
(12/17/17)
Email Correspondence Between Dr.
DeWaters and Dr. Harris
Evaluation of Plaintiff
73-56
73-58
73-59
73-60
73-62
Email Correspondence Between Chiefs
Discussing Plaintiff’s Remediation Plan
Evaluation of Plaintiff
73-63
Evaluation of Plaintiff
73-64
Evaluation of Plaintiff
73-65
73-66
E-Mail Summarizing Remediation Plan
Sent by Dr. Swallow
E-Mail from Dr. Swallow to Plaintiff
73-68
Clinical Reasoning Assessment of Plaintiff
23
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
A vague reference to a
73-69
Clinical Reasoning Assessment of Plaintiff
73-71
E-Mail from Dr. Ryan Munyon Discussing
Clinical Case
73-72
73-73
E-Mail From Dr. Munyon Discussing Fake
Hypothetical Patient
E-Mail Correspondence Between Dr. James
Kogut, Dr. Ashley Snyder, and the Chief
Residents
73-80
Evaluation of Plaintiff
73-81
Notes of Meeting Between Plaintiff and Dr.
Swallow
E-Mail Sent by Dr. DeWaters Discussing
Plaintiff’s Performance
Meeting Minutes of Ad Hoc CCC Meeting
Taken by Dr. Swallow
Letter of Termination Addressed to Plaintiff
73-85
73-86
73-87
73-89
E-Mail Correspondence Between CCC
Members Regarding Plaintiff’s Appeal of
His Termination
CCC Notes
80-4 at 34
4.
patient contains no
identifying information
and thus the Court will
not permit redaction.
Defendant can rebut
common law presumption
insofar as Defendant may
file an appropriately
redacted version of the
document.
Defendant can rebut
common law presumption
insofar as Defendant may
file an appropriately
redacted version of the
document.
Court will unseal the
document in its entirety.
Defendant can rebut
common law presumption
insofar as Defendant may
file an appropriately
redacted version of the
document.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Court will unseal the
document in its entirety.
Docket Numbers 73-6, 73-9, 73-14, 73-25, 73-27, 73-30, 73-31, 73-61,
73-70, 73-74, and 80-5 at 293–331 – The Deposition Transcripts
The Court next turns to Defendant’s arguments in favor of sealing the depositions of
24
Plaintiff, Dr. Nicole Swallow, Dr. Edward Bollard, Dr. Britt Marshall, Dr. Samantha Willer, 10
Dr. James Kogut, Dr. Ami DeWaters, Dr. Ryan Munyon, Dr. Jed Gonzalo, Dr. Ashley Snyder,
and Dr. Nasrollah Ghahramani. These depositions discuss Defendant’s Residency Program, as
well as Plaintiff’s performance in said program. See (Doc. Nos. 73-6, 73-9, 73-14, 73-25, 73-27,
73-30, 73-31, 73-61, 73-70, 73-74, 80-5 at 293–331). Defendant labels this set of documents the
“Deposition Exhibits.”
Defendant argues that the Deposition Exhibits should remain sealed in their entirety.
(Doc. No. 83 at 9, 89 at 11.) Defendant maintains that “[t]hroughout these transcripts . . .
Plaintiff and non-party fact witnesses provide substantial testimony relating to the non-party
patients.” (Doc. No. 83 at 9.) Defendant maintains that it “seek[s] to uphold its duty to its
patients and its obligations under state and federal law by maintaining the confidentiality of these
documents.” (Doc. No. 83 at 9.) Defendant argues that “intertwined throughout the transcripts
is substantial testimony from non-party fact witnesses relating to Plaintiff’s patient care
evaluations, remediation plan, and CCC proceedings . . . .” (Id.) Defendant also cites the PRPA
privilege and the importance of keeping peer review documents confidential. (Id.)
The Court has reviewed each deposition transcript and concludes that five transcripts
contain references to non-party confidential medical information, which is the “kind of
information that courts will protect.” See Avandia, 924 F.3d at 672. Specifically, Docket
Numbers 73-6, 73-9, 73-14, 73-27, and 73-74 contain such information. Pertaining specifically
to those exhibits, and as discussed more fully supra, Defendant has persuasively demonstrated
that disclosure of confidential non-party medical information “will work a clearly defined and
serious injury” see id., both to Defendant and to the non-parties to whom Defendant provides
10
Dr. Willer’s statement, while classified by Defendant as one of the “Deposition Exhibits,” is
in the form of a sworn affidavit.
25
medical care, namely forcing Defendant to divulge confidential medical information pertaining
to individuals who did not consent to the release of said information. See Davis, 2021 WL
4902333 at *4 (discussing how non-parties are injured when confidential medical records are
disclosed). However, the Court concludes that it is more appropriate to require Defendant to
redact the non-party confidential medical information from Docket Numbers 73-6, 73-9, 73-14,
73-27, and 73-74 as opposed to retaining them entirely under seal, as requested by Defendant.
See Teva Pharms. Indus. Ltd., 2023 WL 1100995, at *7 (finding that redactions that are limited
in scope are preferable to wholesale sealing); see also McCowan, 2021 WL 3737204, at *4
(stating that “redaction only marginally affects the public’s right to access materials filed in
relation to judicial proceedings”).
In considering the foregoing, because Defendant fails to demonstrate that the six
remaining Deposition Exhibits—Docket Numbers 73-25, 73-30, 73-31, 73-61, 73-70, and 80-5 at
293–331—contain more than opaque or vague references to non-party confidential medical
information, or any other “kind of information that courts will protect,” see Avandia, 924 F.3d at
672, the Court concludes that Defendant has failed to overcome the presumptive right of public
access to these exhibits, and the Court will instruct the Clerk of Court to unseal those exhibits.
Accordingly, the Court will temporarily retain Docket Numbers 73-6, 73-9, 73-14, 73-27, and
73-74 under seal on the docket of this matter while affording Defendant the opportunity to file on
the Court’s docket redacted versions which remove the non-party confidential medical
information contained therein. 11
11
As discussed supra, Avandia instructs that, if a district court finds that any documents merit
continued sealing under the common law right of access, it “should also consider the parties’
arguments regarding the First Amendment right of public access.” See Avandia, 924 F.3d at
680. Defendant did not address the First Amendment standard in its Memorandum of Law in
Support of its Motion for Leave to File Under Seal (Doc. No. 72-1), its response to the Court’s
26
B.
Defendant’s Motion to Seal its Reply in Further Support of the Motion for
Summary Judgment (Doc. No. 88)
Defendant’s final sealing request pertains to its Reply Brief in Further Support of its
Motion for Summary Judgment and related filings. (Doc. No. 88.) The Reply Brief is thirtyeight (38) pages, containing responses to Plaintiff’s arguments opposing summary judgment.
(Doc. No. 89-1), and attaching “Exhibit A,” which contains Plaintiff’s EEOC Charge of
Discrimination (Doc. No. 89-2). Lastly, Defendant provisionally filed under seal one hundred
and forty-five (145) pages of unpublished opinions. (Doc. No. 89-3.)
Defendant maintains that its Reply Brief in Further Support of the Motion for Summary
Judgment and related filings should be kept under seal, because they include a “detailed
discussion of the reasons for Plaintiff’s dismissal.” (Id. at 12.) Defendant repeats many of the
arguments asserted in its initial Motion to Seal its Motion for Summary Judgment, specifically
with reference to its brief in support of said motion, discussed supra. Defendant reiterates its
“duty to its patients and obligations under state and federal law.” (Id. at 12.) Defendant also
claims that unsealing its Reply Brief such that it is accessible on “the public docket would
show cause Order (Doc. No. 83), or in its subsequent Memorandum of Law in Support of its
Motion to Seal (Doc. No. 89). Accordingly, in addressing Defendant’s sealing requests, with
regard to each of the exhibits ordered sealed by the Court upon its assessment of the common
law right of access to judicial records, the Court will assume that the First Amendment right of
public access attaches to those exhibits. Considering this Court’s narrowly tailored approach of
favoring redaction over wholesale sealing, the Court finds that Defendant can meet its burden to
satisfy the First Amendment’s rigorous standard with regard to Docket Numbers 73-6, 73-9, 7314, 73-27, and 73-74. The Court is guided by the historical recognition within this circuit that
confidential medical information merits protection from public dissemination. See Westinghouse
Elec. Corp., 638 F.2d at 577 (describing the importance of protecting intimate personal health
information); see also Davis, 2021 WL 4902333, at *6–7 (discussing the importance of keeping
confidential medical information off the public docket); Wartluft, 2019 WL 5394575, at *6
(highlighting the appropriateness of redaction to prevent dissemination of non-party confidential
medical information).
27
undermine the protections afforded by the PRPA privilege and defeat the legislature’s intent for
the statutory privilege.” (Id. at 11.)
For similar reasons as discussed in Section III.A.1 supra, the Court finds that Defendant
has failed to meet its burden to show that its interest in secrecy outweighs the presumption of
public access to judicial records as to its Reply Brief and related filings. Defendant asserts only
“[b]road allegations of harm, bereft of specific examples or articulated reasoning,” with
references to general duties that Defendant claims to owe toward patients. See In re Cendant
Corp., 260 F.3d at 194. Defendant fails to provide specific information about which portions of
its Reply Brief would be damaging to its ability to provide medical care while complying with
federal and state confidentiality requirements. The argument authored by Defendant is “broad,
vague, and conclusory” which is “insufficient to overcome the presumption of public access.”
See Avandia, 924 F.3d at 678. The Court is unpersuaded that Defendant has demonstrated that
its Reply Brief and related filings contain “the kind of information that courts will protect,” or
that public disclosure of said filings “will work a clearly defined and serious injury” to it. See id.
at 672.
Additionally, Defendant’s PRPA argument, both as it relates to the invocation of the peer
review privilege and for the persuasive value of the Pennsylvania legislature’s judgment that
these materials should not be discoverable or used as trial evidence, also fails with regard to
Defendant’s Reply Brief. As discussed at length supra, the PRPA does not govern the Court’s
Avandia inquiry because there is no federal common law peer review privilege. See Weiss, 231
F.R.D. at 205.
Looking at the PRPA for its persuasive value, the Court is similarly unpersuaded that this
Pennsylvania statutory privilege supports a finding here that the references to the CCC contained
28
in Defendant’s Reply Brief are “the kind of information that courts will protect.” See Avandia,
924 F.3d at 672. The CCC is mentioned in Defendant’s Reply Brief with only a handful of
references to the “proceedings and records” of the committee itself. See 63 Pa. C.S. § 425.4.
The Reply Brief discusses how the “[CCC] raised concerns about Plaintiff’s recent performance”
and that the “[CCC] felt that the Plaintiff presented a risk to patients.” (Doc. No. 89-1 at 8.)
Defendant’s Reply Brief discusses, at a very broad level, the CCC’s conclusions and past
resident evaluations. (Id. at 19.) The CCC minutes are briefly mentioned in the context of
spoilation. (Id. at 34.) However, even considering the legislature’s judgment that peer review
materials merit protection from the civil discovery and trial process in the Commonwealth of
Pennsylvania, the Court is unpersuaded by Defendant’s conclusory argument that the opaque
references to CCC materials contained in Defendant’s Reply Brief “will work a clearly defined
and serious injury” to Defendant, its employees, or the non-parties to whom Defendant provides
medical care. See Avandia, 924 F.3d at 672. Accordingly, the Court will direct the Clerk of
Court to unseal Defendant’s Reply Brief in Further Support of its Motion for Summary Judgment
and the related filings. 12 The Court next turns to an examination of Plaintiff’s sealing requests.
C.
Plaintiff’s Motion for Leave to File Documents Under Seal (Doc. No.
79)/Memorandum of Law in Support of Plaintiff’s Motion to Seal Via
Redaction Certain Documents Filed in Response to Summary Judgment
(Doc. No. 90)
Plaintiff filed his initial motion to seal in connection with his response to Defendant’s
summary judgment motion, noting that “many of the documents referenced in Defendant’s
12
Notably, Defendant filed a motion for leave to file a Sur Sur Reply (Doc. No. 95), a proposed
Order to that effect (Doc. No. 95-1), a brief in support of its motion for leave (Doc. No. 95-2),
the Sur Sur Reply Brief itself (Doc. No. 95-3), as well as forty-two pages of relevant judicial
opinions (Doc. No. 95-4), all provisionally under seal of the docket of this matter. Defendant
authors no arguments in favor of keeping these documents under seal. Accordingly, the Court
will direct the Clerk of Court to unseal these documents in their entirety.
29
Summary Judgment Motion . . . are also referenced in Plaintiff’s Response.” (Doc. No. 79-1 at
2–3.) Plaintiff accordingly filed his opposition to summary judgment provisionally under seal
pending the Court’s ruling as to Defendant’s sealing requests. See (id. at 2). In the brief
accompanying Plaintiff’s initial motion to seal, he requested the sealing of ten records related to
his medical and mental health treatment, in addition to asking the Court to seal third party
medical treatment records. (Id. at 3–5.) However, in response to the Court’s August 14, 2023
Show Cause Order (Doc. No. 81), Plaintiff filed a memorandum wherein he greatly narrowed his
sealing request (Doc. No. 90). Plaintiff offered no argument in support of sealing his brief in
opposition to summary judgment. Instead, Plaintiff proffered arguments in favor of redacting
three exhibits on the docket of this matter. See (id.). Each will be examined in turn.
1.
Docket Number 80-1 at 144
Docket Number 80-1 at 144 contains the second page of an Outpatient Note that
discusses Plaintiff’s medical and social history, physical examination, and treatment plan. See
(Doc. No. 80-1 at 144). The document also contains a description of Plaintiff’s Family History,
which includes references to his mother and grandmother. (Id.) This Note was authored by Dr.
Britt Marshall, and hereinafter will be referred to as the “Marshall Note.”
Plaintiff argues that the Marshall Note should be unsealed on the public docket with
redactions to the “Family History” portion. Plaintiff maintains that the Marshall Note includes a
“mental health diagnosis of [Plaintiff’s] mother and grandmother.” (Doc. No. 90 at 3.) Plaintiff
observes that neither his mother nor grandmother are parties to the case. (Id.) Plaintiff argues
that, in addition to interfering with Plaintiffs’ relationships with his family members, this
information entering the public square could “stigmatize family members socially.” (Id.)
Plaintiff “requests that the sentence following the heading ‘Family History’ . . . be redacted
30
before placement on the public docket.” (Id. at 4.)
Upon careful review of the Marshall Note, the Court finds that Plaintiff has met his
burden to overcome the presumption of public access such that the Court will permit Plaintiff to
file a redacted version of the Marshall Note wherein he can make the requested redactions to the
“Family History” section. Plaintiff has made a sufficient showing under Avandia that the
personal medical information of non-parties contained in the Marshall Note is the “kind of
information that courts will protect.” See Avandia, 924 F.3d at 672. As discussed more fully
supra, courts in this circuit have overwhelmingly recognized the importance of protecting nonparty confidential medical information from public dissemination. See Westinghouse Elec.
Corp., 638 F.2d at 577 (discussing the importance of protecting intimate personal health
information); Davis, 2021 WL 4902333, at*6–7 (holding that “medical information” more
broadly is the “kind of information that courts will protect”); see also In re Search Warrant, 810
F.2d at 71 (discussing the legitimate privacy interests that individuals retain in their own medical
records). Further, the Court concludes that Plaintiff’s brief sufficiently explains why the
revelation of this information “will work a clearly defined and significant injury” to Plaintiff and
his family members, see Avandia, 924 F.3d at 672, namely, the stigmatization of his family
members socially, as well as the general harms that result from the confidential personal medical
information of non-parties being made available for public viewership without their permission.
See Davis, 2021 WL 4902333 at *4 (discussing how non-parties are injured when confidential
medical records are disclosed). Finally, as discussed more fully supra, redactions are preferred
to the wholesale sealing of documents. See Teva Pharms. Indus. Ltd., 2023 WL 1100995, at *7
(finding that proposed redactions that are limited in scope are preferable to the wholesale sealing
31
of documents). 13 Accordingly, the Court will temporarily retain the Marshall Note under seal
while requiring Plaintiff to file on the Court’s docket a version of the Marshall Note redacted to
remove confidential non-party medical information. 14
2.
Docket Number 80-1 at 147–50
Docket Number 80-1 at 147–50 is a Psychiatric Evaluation of Plaintiff written by Dr.
Frank Muñoz. (Doc. No. 80-1 at 147–50.) The evaluation discusses Plaintiff’s family history,
personal and developmental history, treatment plan, and body measurements. (Id.) This exhibit
will hereinafter be referred to as the “Muñoz Evaluation.”
Plaintiff argues that the Muñoz Evaluation should be unsealed on the public docket with
several portions redacted, citing content that reveals deeply personal information which “is not
necessary to litigate this case.” (Doc. No. 90 at 5.) Plaintiff explains that the information “does
13
As discussed supra, Avandia instructs that, if a district court finds that any documents merit
continued sealing under the common law right of access, it “should also consider the parties’
arguments regarding the First Amendment right of public access.” See Avandia, 924 F.3d at
680. Plaintiff offered limited briefing on the First Amendment question in his Memorandum of
Law in Support of his Motion to Seal Documents (Doc. No. 79-1) and his Memorandum of Law
in Support of his Motion to Seal Via Redaction Certain Documents Filed in Response to
Summary Judgment (Doc. No. 90). Accordingly, in addressing Plaintiff’s sealing requests, with
regard to each of the exhibits ordered sealed by the Court upon its assessment of the common
law right of access to judicial records, the Court will assume that the First Amendment right of
public access attaches to those exhibits. Considering this Court’s narrowly tailored approach of
favoring redaction over wholesale sealing, the Court finds that Plaintiff can meet his burden to
satisfy the First Amendment’s rigorous standard with regard to the Marshall Note. The Court is
guided by the historical recognition within this circuit that confidential medical information
merits protection from public dissemination. See Westinghouse Elec. Corp., 638 F.2d at 577
(describing the importance of protecting intimate personal health information); see also Davis,
2021 WL 4902333, at *6–7 (discussing the importance of keeping confidential medical
information off the public docket); Wartluft, 2019 WL 5394575, at *6 (highlighting the
appropriateness of redaction to prevent dissemination of non-party confidential medical
information).
14
Plaintiff did not file separate exhibits, but rather docketed his filings in opposition to summary
judgment as seven separate files. For example, Docket Number 80-1 contains exhibits one (1)
through thirty (30). In granting Plaintiff’s motion for leave to file under seal in part, the Court
will strike Docket Number 80-1 in its entirety once Plaintiff refiles Docket Number 80-1 with the
appropriate redactions.
32
not implicate any proof or defense and it is not information that warrants public disclosure.”
(Id.) Plaintiff also argues that the exposure of this sensitive information could hurt his
relationship with family members. (Id.) Plaintiff further requests that diagnosis information for
his mother be redacted. (Id. at 5–6.)
Upon review of the Muñoz Evaluation, the Court finds that Plaintiff has met his burden to
overcome the presumption of public access with regard to Docket Number 80-1 at 147–50 such
that the Court will permit Plaintiff to file a version of the Muñoz Evaluation with the requested
redactions to remove the non-party confidential medical information contained therein. As
discussed supra, the Court finds that Plaintiff has made a sufficient showing under Avandia that
the personal confidential medical information of non-parties is the “kind of information that
courts will protect.” See Avandia, 924 F.3d at 672. Further, with reference to his mother’s
diagnosis information, Plaintiff has sufficiently articulated why the public availability of this
information “will work a clearly defined and significant injury” to both Plaintiff and his mother.
See id., 924 F.3d at 672; see also Davis, 2021 WL 4902333, at *4 (discussing how non-parties
are injured when confidential medical records are disclosed).
As for the details of Plaintiff’s personal psychiatric history and treatment plan contained
in the Muñoz Evaluation, the Court also finds that Plaintiff has demonstrated that such personal
confidential medical information is the “kind of information that courts will protect.” See
Avandia, 924 F.3d at 672. In the Court’s view, despite the fact that this information pertains to a
party to the instant action as opposed to a non-party, the consensus that confidential medical
information is not for public viewership is inherent in the authority from this circuit, and
supports the Court’s conclusion that this is the “kind of information that courts will protect.” See
id.; Westinghouse Elec. Corp., 638 F.2d at 577 (discussing the importance of protecting intimate
33
personal health information); see also Davis, 2021 WL 490233 at *6–7 (holding that “medical
information” more broadly is the “kind of information that courts will protect”) (citing Pahlavan
v. Drexel Univ. Coll. of Med., 438 F. Supp. 3d 404, 407 n.1 (E.D. Pa. 2020) (permitting
redactions of certain mental impressions made of the plaintiff by his therapists under the Avandia
standard)). The Court further finds that Plaintiff has sufficiently demonstrated that should this
information about his personal medical history be available for public viewership, it “will work a
clearly defined and serious injury” to him, see Avandia, 924 F. 3d at 672, namely the involuntary
disclosure of deeply personal medical information. As discussed supra, redactions are generally
preferable to the wholesale sealing of documents. See Teva Pharms. Indus. Ltd., 2023 WL
1100995, at *7. Accordingly, the Court will retain Docket Number 80-1 at 147–50 temporarily
under seal on the docket of this matter while affording Plaintiff the opportunity to file on the
Court’s docket a redacted version of the Muñoz Evaluation that removes both non-party
confidential medical information and Plaintiff’s deeply personal medical information contained
therein. 15
15
Avandia instructs that, if a district court finds that any documents merit continued sealing
under the common law right of access, it “should also consider the parties’ arguments regarding
the First Amendment right of public access.” See Avandia, 924 F.3d at 680. Plaintiff offered
limited briefing on the First Amendment question in his Memorandum of Law in Support of his
Motion to Seal Documents (Doc. No. 79-1) and his Memorandum of Law in Support of his
Motion to Seal Via Redaction Certain Documents Filed in Response to Summary Judgment
(Doc. No. 90). Accordingly, in addressing Plaintiff’s sealing requests, with regard to each of the
exhibits ordered sealed by the Court upon its assessment of the common law right of access to
judicial records, the Court will assume that the First Amendment right of public access attaches
to those exhibits. Considering this Court’s narrowly tailored approach of favoring redaction over
wholesale sealing, the Court finds that Plaintiff can meet his burden to satisfy the First
Amendment’s rigorous standard with regard to the Muñoz Evaluation. The Court is guided by
the historical recognition within this circuit that confidential medical information merits
protection from public dissemination. See Westinghouse Elec. Corp., 638 F.2d at 577
(describing the importance of protecting intimate personal health information); see also Davis,
2021 WL 4902333, at *6–7 (discussing the importance of keeping confidential medical
information off the public docket); Wartluft, 2019 WL 5394575, at *6 (highlighting the
34
3.
Redactions to Docket Number 80-5 at 558, Tr. 70:17-70:21
Plaintiff’s final sealing request pertains to four lines of Dr. Muñoz’s deposition transcript
(“Muñoz Deposition”), wherein Dr. Muñoz references personal information about Plaintiff’s
childhood abuse. (Doc. No. 90 at 6.) Plaintiff does not ask for any other portion of the
deposition to be redacted. Plaintiff maintains that the four referenced lines of the Muñoz
Deposition contain “personal information about [Plaintiff]’s childhood abuse,” and it follows that
public disclosure of this information will result in a “clearly defined and serious injury” to
Plaintiff. (Id.)
With regard to the four referenced lines of the Muñoz Deposition, the Court is persuaded
that Plaintiff has met his burden to demonstrate that his interest in secrecy outweighs the
presumptive right of access to this exhibit such that the Court will permit Plaintiff to file a
redacted version of the Muñoz Deposition that removes the personal confidential medical
information within it. As discussed supra, the Court finds that highly personal confidential
medical information, even pertaining to a party to the above-titled action, is the “kind of
information that courts will protect.” See Avandia, 924 F.3d at 672; see also Pahlavan , 438 F.
Supp. 3d at 407 n.1 (permitting redactions of certain mental impressions made of the plaintiff by
his therapists due to the “sensitive and confidential” nature of the content pursuant to Avandia).
The Court further finds that Plaintiff has sufficiently demonstrated that, should information about
his childhood abuse be available for public viewership, it “will work a clearly defined and
serious injury” to him, see Avandia, 924 F.3d at 672, namely, the involuntary disclosure of
sensitive personal information, unrelated to the above captioned action and closely tied to
Plaintiff’s personal medical and mental health care plans. Furthermore, in balancing the
appropriateness of redaction to prevent dissemination of non-party confidential medical
information).
35
presumption of public access to judicial records and the privacy interests articulated by parties,
the Court finds that redactions are preferred to the wholesale sealing of documents. See Teva
Pharms. Indus. Ltd., 2023 WL 1100995, at *7. Accordingly, the Court will retain Docket
Number 80-5 at 558, Tr. 70:17-70:21 temporarily under seal on the docket of this matter while
affording Plaintiff the opportunity to file on the Court’s docket a redacted version of the exhibit
that removes the highly sensitive personal medical information contained within it.16
IV.
CONCLUSION
For all the foregoing reasons, the Court will largely deny Defendant’s Motion for Leave
to File Under Seal its Motion for Summary Judgment but will grant the motion insofar as the
Court will permit Defendant to file redacted versions of Docket Numbers 73-6, 73-9, 73-14, 7327, 73-69, 73-71, 73-73, and 73-74, and will retain under seal Docket Numbers 73-75 through
73-78. The Court will deny Defendant’s Motion to Seal its Reply in Further Support of its
Motion for Summary Judgment and related filings. Additionally, the Court will largely deny
16
Avandia instructs that, if a district court finds that any documents merit continued sealing
under the common law right of access, it “should also consider the parties’ arguments regarding
the First Amendment right of public access.” See Avandia, 924 F.3d at 680. Plaintiff offered
limited briefing on the First Amendment question in his Memorandum of Law in Support of his
Motion to Seal Documents (Doc. No. 79-1) and his Memorandum of Law in Support of his
Motion to Seal Via Redaction Certain Documents Filed in Response to Summary Judgment
(Doc. No. 90). Accordingly, in addressing Plaintiff’s sealing requests, with regard to each of the
exhibits ordered sealed by the Court upon its assessment of the common law right of access to
judicial records, the Court will assume that the First Amendment right of public access attaches
to those exhibits. Considering this Court’s narrowly tailored approach of favoring redaction over
wholesale sealing, the Court finds that Plaintiff can meet his burden to satisfy the First
Amendment’s rigorous standard with regard to the Muñoz Deposition. The Court is guided by
the historical recognition within this circuit that confidential medical information merits
protection from public dissemination. See Westinghouse Elec. Corp., 638 F.2d at 577
(describing the importance of protecting intimate personal health information); see also Davis,
2021 WL 4902333, at *6–7 (discussing the importance of keeping confidential medical
information off the public docket); Wartluft, 2019 WL 5394575, at *6 (highlighting the
appropriateness of redaction to prevent dissemination of non-party confidential medical
information).
36
Plaintiff’s Motion for Leave to File Documents Under Seal but will grant the motion insofar as it
will permit Plaintiff to file redacted versions of the Marshall Note (Doc. No. 80-1 at 144), the
Muñoz Evaluation (Doc. No. 80-1 at 147–50), and the Muñoz Deposition (Doc. No. 80-5 at 558,
Tr. 70:17-70:21). Finally, the Court will direct the Clerk of Court to unseal dozens of other
exhibits provisionally filed under seal by both parties. 17 An appropriate Order follows.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania
17
The Court further observes that Plaintiff filed his motion (Doc. No. 91) for leave to file a Sur
Reply Brief, a proposed order (Doc. No. 91-1), an accompanying brief in support of that motion
(Doc. No. 91-2), as well as the Sur Reply brief itself (Doc. No. 92) along with related
attachments (Doc. Nos. 92-1 through 92-5) provisionally under seal of the docket of this matter.
Because Plaintiff promulgates no argument in favor of keeping these documents under seal, the
Court will direct the Clerk of Court to unseal these documents in their entirety.
37
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