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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

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.
v.
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 following:

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 defendants.

  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.

  SO ORDERED.

20041110

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