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In re Avandia Mktg., Sales Practices & Prods. Liab. Litig.

United States Court of Appeals for the Third Circuit

March 6, 2019, Argued; May 15, 2019, Filed

Nos. 18-2259 & 18-2656

Opinion

 [*668]  OPINION OF THE COURT

SMITH, Chief Judge.

Following a decision of the District Court granting summary judgment to GlaxoSmithKline LLC ("GSK"), the losing parties, two health benefit plans, appealed from that final order.1 While briefing the appeal, the parties sought to include in their joint appendix certain documents filed in connection with the summary judgment proceedings. GSK had previously designated some of these documents as confidential and contended [**2]  that they should remain so on appeal; the plans disagreed. That led GSK to ask the District Court, on two occasions and pursuant to the applicable protective order, to maintain the confidentiality of certain documents. The plans opposed these requests, arguing that the common law right of access and  [*669]  the First Amendment right of public access required the unsealing of the documents. The District Court largely sided with GSK, refusing to unseal most of the documents. The plans have appealed the District Court's two post-judgment sealing orders.

We conclude that the District Court failed to apply the proper legal standard for the common law right of access, which requires as a starting point the application of a presumption of public access. See Bank of Am. Nat'l Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). By applying, instead, our standard for a protective order under Federal Rule of Civil Procedure 26, the able District Judge incorrectly placed a burden on the plans to show an interest in disclosure — rather than on GSK to justify continued sealing. We will therefore vacate and remand to allow the District Court to consider GSK's motions for continued confidentiality under the appropriate standard.

GSK manufactures, markets, and sells Avandia, a drug indicated to treat Type II diabetes.3 In re Avandia Mktg., Sales Prac. & Prod. Liab. Litig. (Avandia I), 804 F.3d 633, 635 (3d Cir. 2015). [**3]  The plans contend that GSK concealed evidence of Avandia's cardiovascular risk and, instead, promoted Avandia as providing cardiovascular benefits. According to the plans, this marketing strategy was false and misleading because GSK's own studies showed that Avandia increased certain markers of cardiovascular risk. The plans assert that, for years, GSK buried bad study results, misrepresented the truth about Avandia's cardiovascular profile to doctors and pharmacy benefit managers, and reaped billions of dollars in profits. In 2007, an independent researcher published an article in the New England Journal of Medicine claiming that Avandia increased the risk of heart attack and cardiovascular disease. Id.; App. 1064. Lawsuits ensued, the United States Food and Drug Administration ("FDA") investigated, and even the United States Senate Finance Committee released a report revealing GSK's misdeeds.

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924 F.3d 662 *; 2019 U.S. App. LEXIS 14794 **; 2019 WL 2119630

IN RE: AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 1776 AND PARTICIPATING EMPLOYERS HEALTH AND WELFARE FUND; JB HUNT TRANSPORT SERVICES, INC., Appellants

Prior History:  [**1] On Appeal from the United States District Court for the Eastern District of Pennsylvania. District Court Nos. 2-07-md-01871, 2-10-cv-02475, 2-11-cv-04013. District Judge: The Honorable Cynthia M. Rufe.

In re Avandia Mktg. Sales Practices & Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 152726 (E.D. Pa., Oct. 22, 2013)

CORE TERMS

sealing, confidentiality, disclosure, unsealing, articulate, quotation, closure, embarrassment, settlement, discovery, cardiovascular, countervailing, reputation, undisputed, rebut

Civil Procedure, Discovery & Disclosure, Discovery, Protective Orders, Governments, Courts, Common Law, Constitutional Law, Freedom of Speech, Free Press, Public Access, Court Records, Judgments, Summary Judgment, Opposing Materials, Supporting Materials, Evidence, Inferences & Presumptions, Presumptions, Particular Presumptions, Rebuttal of Presumptions, Appeals, Standards of Review, Abuse of Discretion, Burdens of Proof, Allocation, Trade Secrets Law, Protected Information, Business Information