United States District Court, D. New Jersey
In Re Benicar® (Olmesartan) Products Liability Litigation MDL No. 2606
DAIICHI SANKYO, Inc., et al., Defendants. This document relates to: William H. von Eberstein, Jr. and Theresa Breland von Eberstein Plaintiffs,
B. KUGLER, United State District Judge.
matter comes before the Court on Defendants'
[“Daiichi Sankyo”] unopposed motion [“the
motion”] to seal (ECF No. 67) Exhibit A to their motion
for summary judgement filed 10 August 2018. For the reasons
below, the motion to seal Exhibit A is
GRANTED. An appropriate Order accompanies.
Facts and Procedural Background
Multi-District Litigation [“MDL”] concerns
injuries caused to some persons who took one or more of four
prescription drugs for high-blood pressure, collectively
called Benicar®, and who filed docket matters, which were
consolidated in this Court as MDL 2606 in April 2015 and
which settled August 2017. Almost all MDL
plaintiffs have enrolled in the settlement program
[“Olmesartan settlement”] and thus their MDL
cases have terminated. As of this date, William and Theresa
von Eberstein have not enrolled in the Olmesartan settlement
and seek damages from defendants. On 10 August 2018,
defendants filed a motion for summary judgement, including
Exhibit A which contains personal medical information of the
plaintiffs, and an accompanying motion to seal that Exhibit.
materials and judicial proceedings are subject to a
presumptive right of public access. Leucadia, Inc. v.
Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d
Cir. 1993). This Court's Local Civil Rule [“L. Civ.
R.”] 5.3(c) governs all motions to seal or to otherwise
restrict public access to judicial proceedings and materials
filed with the Court.
L. Civ. R. 5.3(c)(2) guides that, for a Court to place a
docket entry under seal, the motion to seal must be publicly
filed and describe:
“(a) the nature of the materials or proceedings at
(b) the legitimate private or public interests which warrant
the relief sought,
(c) the clearly defined and serious injury that would result
if the relief sought is not granted, and (d) why a less
restrictive alternative to the relief sought is not
“common law public right of access to judicial
proceedings and records” is well-established (In re
Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)),
consistent with the First Amendment precedent, and creates
the presumption that documents filed with the court and
judicial proceedings are open to the public. See Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978);
FTC v. Lane Labs-USA, Inc., et al., No. 00-3174,
2007 WL 316462, at *1 (D.N.J. 30 Jan 2007). To overcome the
presumption, movant must show there is “good
cause” to protect the relevant material
(Securimetrics, Inc. v. Iridian Techs., Inc., No.
03-4394, 2006 WL 827889, at *2 (D.N.J. 30 Mar 2006)), that
is, provide a particularized showing that disclosure will
result in “clearly defined and serious injury to the
party seeking closure.” Id. (citing Pansy
v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.
1994)). In other words, the movant must prove the relevant
information is confidential and that allowing the general
access to it will cause a specific and serious injury.
Pansy, 23 F.3d at 788.
in their unopposed motion, have shown both the
confidentiality of Exhibit A and that its disclosure will
cause a specific and serious injury. Exhibit A contains
excerpts from plaintiff's medical records, which the
Health Insurance and Portability Act of 1966
[“HIPAA'”] defines as confidential, protected
health information [“PHI”] and prohibits
“business associates”, which include attorneys
engaged in litigation, from disclosing such PHI. Federal law
prevents Exhibit A being disclosed to the general public.
HIPAA regulations at 45 C.F.R. 164.512 do permit limited
disclosure of PHI in very limited circumstances, e.g., to
advance public health activities during a public health
crisis or respond to a law enforcement proceeding, none of
these enumerated circumstances applies here. Defendants argue
correctly the general right of the public to know does not
defeat the statutorily-required confidentiality of Exhibit A