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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 Defendants."

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 expunged" incantation.

  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 them.

  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 recourse.

  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 ...

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