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Ebert v. C.R. Bard, Inc.

United States District Court for the Eastern District of Pennsylvania

January 28, 2020, Decided; January 28, 2020, Filed

CIVIL ACTION NO. 12-01253

Opinion

MEMORANDUM

Defendants C.R. Bard, Inc. and Bard Peripheral Vascular Inc. (collectively "Bard") filed a Motion to Seal three expert reports. (ECF No. 140). The reports are attached to Plaintiff Melissa Ebert's Response in Opposition to Defendants' Motion for Summary Judgment. (ECF No. 133.) Bard asserts that the reports contain confidential business information, and Ebert does not oppose the Motion. The Court grants the Motion in part for the reasons that follow.

Ebert alleges she received a defective Bard G2 inferior vena cava filter, which is a medical device used to prevent pulmonary embolisms. (Pl.'s Resp. Opp'n Mot. Summ. J. 1-2, ECF No. 133.) According to Ebert, her Bard G2 filter caused life-threatening complications after the device failed and a fractured strut migrated into her pulmonary artery. (Id.)

Ebert attached to her response to Bard's summary judgment motion three expert reports written by Dr. Robert Ritchie (Ex. R, ECF No. 133-18), Dr. Robert McKeeking (ECF No. 133-19, Ex. S), and William Hyman (ECF No. 133-20, Ex. T). The reports quote and refer to various Bard documents, [*3]  all of which have been produced in discovery subject to the parties' Amended Agreed Protective Order. (ECF No. 47.) Bard now seeks to seal the reports, arguing that they contain proprietary and confidential information that, if made public, would cause Defendants "real and tangible harm" due to the documents' economic value to competitors in the medical device industry. (Defs.' Mot. to Seal ("Defs.' Mot") 2, ECF No. 140.)

The Third Circuit Court of Appeals on numerous occasions has affirmed the public's right to "inspect and copy public records and documents, including judicial records and documents."1 United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978)). Whether the common law right of access applies depends on whether the document is a judicial record—i.e., whether it "has been filed with the court . . . or otherwise somehow incorporated into a district court's adjudicatory proceedings." In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). Summary judgment proceedings are no exception and documents filed in connection with motions for summary judgment, such as the expert reports at issue here, are judicial records. In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019).

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2020 U.S. Dist. LEXIS 13523 *; 2020 WL 429771

MELISSA EBERT, Plaintiff, v. C.R. BARD, INC., et al., Defendants.

Prior History: Ebert v. C.R. Bard, Inc., 2014 U.S. Dist. LEXIS 57073 (E.D. Pa., Apr. 24, 2014)

CORE TERMS

expert report, business information, filter, confidential, documents, Seal, Pages, judicial record, medical device