Judge Denies C.R. Bard’s Request to Seal Documents in IVC Settlement

In August 2005, a patient was implanted with a Bard Recovery Filter System in order to catch blood clots or “thrombi” traveling from the lower portions of his body toward his heart and lungs. Unfortunately, the device failed and migrated to the patient’s heart, perforating the organs and requiring open heart surgery on April 30, 2010.

The patient sued C.R. Bard and Bard Peripheral Vascular Inc., in the United States District Court for the District of Nevada, accusing them of failing to conduct testing on the Recovery Filter Device and failing to recall the device. The patient also asserted claims of design defect, failure to warn, and manufacturing defect. Six days into the trial, the parties reached a confidential settlement. Following the settlement, C.R. Bard asked the Judge to seal certain trial exhibits and portions of the trial transcript.

This lawsuit was assigned to Judge Robert C. Jones. Judge Jones noted that a court may “make any order which justice requires to protect the party or person from annoyance, embarrassment, oppression or undue burden or expense” upon motion by a party from whom discovery is sought.” However, Judge Jones continued that “the mere fact that the production of records may lead to a litigant’s embarrassment, incrimination or exposure to further litigation will not, without more, compel the court to seal its records”, quoting Kamakana v. City & Cnty of Honolulu, 447 F.3d 1172, 1179, 9th Cir. 2006.

“There is a strong presumption towards public access to judicial records,” Judge Jones stated. He noted that “Under Kamakana, judicial records are separated into two groups, each with its own standard to be met if litigants wish to seal them. First, judicial records attached to dispositive motion must meet the compelling reasons’ standard in order for those documents to be sealed. Those compelling reasons must outweigh the competing interest of the public in gaining access to the judicial records and to understand the judicial process.”

In this case, Judge Jones held that “the only harm that could come to Defendant from the release of this information is the precipitation of further lawsuits against it..” He reasoned that “preventing lawsuits due to the release of inculpating information is not a compelling rdreason to seal otherwise pubic legal proceedings, Indeed, the exposure of the facts relevant to the material clams in a lawsuit is the purpose of a trial and these facts should remain public unless the harm likely to result from their release is unrelated to the nature of the claims. The information does not directly implicate trade secrets.”

Therefore, Judge Jones denied C.R. Bard’s motion to seal the materials, ruling that the reasons for sealing do not outweigh the public’s interest in gaining access to the judicial records. Also, C.R. Bard has waived the issue because it did not move to seal the exhibits or testimony at the public trial, the Judge noted.