United States District Court, S.D. New York
December 9, 2004.
In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 6389.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 337 (Abram Motion to Expunge Names)
A number of medical doctors initially sued in this action but
subsequently dropped from the case move for an order that their
names be "deemed expunged" from the record in this case. They
are at pains to make clear that they are not requesting the Court
to alter its records or seal the file. Rather, they say, what
they ask here "is simply an accommodation to the Doctor
Why would they seek such an accommodation? There is a practical
economic reason. The physicians contend that their malpractice
insurance carrier whose counsel defended them in this case and
made this application treats claims that are simply dismissed
as formal claims for underwriting purposes while it does not so
treat claims that have been "deemed expunged." The result is that
a doctor who has been sued but had the claim dismissed and the
claim "deemed expunged" pays lower insurance premiums to this
carrier than a doctor who has been sued and had the claim
dismissed but has not obtained pronouncement of the "deemed
The Court is entirely sympathetic to the movants' plight. The
carrier's premise is that the incantation of the words "deemed
expunged" makes a physician who has been sued and obtained
dismissal of the suit a better risk than another physician who
also has been sued and obtained dismissal, but who has not
obtained the inclusion of those words in the order of dismissal.
It is difficult to find words to describe the utter absurdity
of the carrier's practice, if indeed it has been described
accurately. Why it should regard the inclusion of the words
"deemed expunged" in an order of dismissal as somehow material to
the risk of insuring a doctor in circumstances where the words
are added as an "accommodation" and not in consequence of a
determination that the suit lacked any justification in the first
place is beyond the Court's power to comprehend. But that is
neither here nor there.
The substance of what movants ask is that this Court make an
underwriting decision for movants and their insurance carrier. It
is being asked to give the carrier reason, however illogical, to
charge these doctors lower premiums without actually considering
how the nature and circumstances of these claims should affect
the premiums it charges. Federal courts are courts of limited jurisdiction. Their powers
are cabined by, among other things, the requirement that a case
or controversy exist. U.S. Const., Art. III. The power does not
extend to the issuance of advisory opinions, which the Court
supposes, is the closest analogy to what the movants seek. It
does not extend to the issuance of orders as accommodations to
litigants in circumstances in which the orders have nothing
whatever to do with the adjudication of the case. It certainly
does not extend to acting as a branch of the underwriting
department of movants' malpractice carrier.
Movants rely principally upon United States v. Howard,
275 F.Supp.2d 260 (N.D.N.Y. 2003). But that case is not helpful to
Howard dealt with an application to expunge records relating
to an arrest. Judge Hurd recognized that courts have equitable
powers to expunge arrest records in appropriate circumstances.
Id. at 263. He went on to conclude, however, that even a
showing that the arrest record made it difficult to find
employment would not outweigh the government's interest in
retaining and preserving the records. In the absence of any
evidence that the arrest was illegal or unconstitutional, the
court denied the application.
The principal point to note about Howard is that there was a
case or controversy. The movant wanted the records expunged. The
government resisted. Here, in contrast, there is no case or
controversy. Indeed, the movants already have been dismissed from
the case. Neither the plaintiffs nor the remaining defendants
care a whit about this application. The application therefore is
beyond the judicial power conferred on the Court by Article III.
That is not to say that the physicians are entirely without
One possibility lies with the insurance carrier. Perhaps if the
matter were explained to the carrier, particularly by counsel for
the physicians who were not beholden to the carrier, the carrier
would alter this apparently senseless policy. Even if it did not,
remedies might exist under state laws governing insurance and
unfair trade practices.
Perhaps there are other possibilities. But the answer does not
lie with this Court.
Motion [00 Civ. 2843, docket item 2405] denied.
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