United States District Court, S.D. New York
November 10, 2004.
In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 6389. Darnell Abram, et al.
Parke-Davis, A Division of the Warner-Lambert Company, et al.; United States District Court, N.D. Miss., Greenville Division; Cause No. 4:03CV82DB.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
SEPARATE DEFENDANTS, THOMAS F. BARKLEY, M.D., TROY CAPPLEMAN,
M.D., JOHN CHMELICEK, M.D., DONALD V. CONERLY, M.D., JOHN M.
ESTESS, M.D., WAYNE ALLEN HUGHES, M.D., STEPHEN C. LAMBERT, M.D.,
AND WILLIE L. WELLS, M.D.'S MOTION REQUESTING THEIR NAMES BE
"DEEMED EXPUNGED" FROM THE RECORD IN THIS CASE
COME NOW Thomas F. Barkley, M.D., Troy Cappleman, M.D., John
Chmelicek, M.D., Donald V. Conerly, M.D., John M. Estess, M.D.,
Wayne Allen Hughes, M.D., Stephen C. Lambert, M.D., and Willie L.
Wells, M.D. (hereinafter "Doctor Defendants"), in the
above-captioned matter, through counsel and move this Court to
have their names be "deemed expunged" from the record of this
matter. In support of this motion the proponents offer the
1. Doctor Defendants obtained Orders of Dismissal from this
Court. In said orders there was language that would have deemed
the doctors' names expunged from the record, which was stricken
by this Court. See Composite Exhibit "A".
2. Defendants are now poised to secure additional agreed
stipulations and orders of dismissal and requested the Court's
guidance on the inclusion of the "deemed expunged" language.
Exhibit "B". In the event such stipulations and orders
contained such language, the language would be agreed to by the
affected parties. 3. The Doctor Defendants represented in this action by
undersigned counsel are primarily insured by the same carrier.
This carrier classifies claims for underwriting purposes
differently based on whether the doctor's name has been "deemed
expunged" from the suit.
4. Claims which are simply dismissed are treated as formal
claims, while claims which have been "deemed expunged" are not
maintained as historical claims. Many of the doctors who were
sued as venue defendants in the MDL are now tagged as having a
large number of malpractice "claims" filed against them. This has
a large and adverse effect on their insurance premiums.
5. The "deemed expunged" language allows the carrier to make a
practical distinction between the large number of venue based
claims in which the physician was a nominal defendant. In effect,
including the deemed expunged language saves the doctors from
being underwritten on the basis of a large number of "claims" in
which they were improperly joined and ultimately dismissed.
6. The power to expunge arrest records lies within the
discretion of the court. United States v. Howard,
275 F. Supp. 2d 260, 263 (N.D.N.Y. 2003).
7. Further, this Court has broad equitable power to order and
set the terms of expungement. Chastain v. Kelley,
510 F. 2d 1232, 1236 (D.C. Cir. 1975).
8. There is no practical effect to the inclusion of the "deemed
expunged" language in the orders. Defendants are not requesting
that the Court take any further action other than including the
"deemed expunged" language in the order. Obviously, this has no
legal effect on whether the records are physically removed from
the file or sealed as in traditional expungement orders. The
inclusion of the language here is simply an accommodation to the
Doctor Defendants to allow the proper categorization of the large
number of claims filed against them. 9. No party would be materially inconvenienced by inclusion of
this language nor would it require any further action on the part
of this Court or its staff. Including the "deemed expunged"
language merely prevents unwarranted hardship to the Doctor
Defendants in this case who were nominal, jurisdictional
WHEREFORE, premises considered, Thomas F. Barkley, M.D., John
Chmelicek, M.D., John M. Estess, M.D., Willie L. Wells, M.D.
respectfully request this Court to enter an Order deeming the
doctors' names expunged frm the record in this case, and Troy
Cappleman, M.D., as to the claims of Carolyn Hatcher, Donald V.
Conerly, M.D., as to the claims of Debra Patrick, Wayne Allen
Hughes, M.D., as to the claims of Walter Rouse, and Stephen C.
Lambert, M.D., as to the claims of Robert E. McGill, respectfully
request this Court to enter an order deeming the doctors' names
expunged from the record in this case as to the claims of the
aforementioned named plaintiffs.
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