Purdue Pharma L.P. v. Bos. Globe Life Scis. Media, LLC
| Decision Date | 14 December 2018 |
| Docket Number | NO. 2016-CA-000710-MR,2016-CA-000710-MR |
| Parties | PURDUE PHARMA L.P., PURDUE PHARMA, INC., THE PURDUE FREDERICK COMPANY, INC., D/B/A THE PURDUE FREDERICK COMPANY, PURDUE PHARMACEUTICALS, L.P., THE P.F. LABORATORIES, INC. APPELLANTS v. BOSTON GLOBE LIFE SCIENCES MEDIA, LLC d/b/a STAT APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM PIKE CIRCUIT COURT
Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick Company, Inc. d/b/a The Purdue Frederick Company, Purdue Pharmaceuticals L.P., and the P.F. Laboratories, Inc. (collectively, "Purdue") appeal the Pike Circuit Court's ruling that court records should not be concealed from public inspection and its order that specific records be unsealed. We affirm.
In 2007, Purdue pleaded guilty to misbranding OxyContin, a prescription opioid pain medication, with the intent to defraud or mislead, a felony under the federal Food, Drug, and Cosmetic Act.1 United States v. Purdue Frederick Co., Inc., 495 F. Supp. 2d 569, 570 (W.D. Va. 2007). Purdue admitted it deceptively marketed and promoted OxyContin as less addictive, less subject to abuse, and less likely to cause tolerance and withdrawal than other medications.
As part of its plea, Purdue agreed to "monetary sanctions totaling $600 million[.]" Id. at 572. Purdue placed almost $60 million in escrow for states electing to settle their claims. Forty-nine states chose to settle; Kentucky did not.
In 2007, the Commonwealth of Kentucky, by and through its Attorney General, and jointly with Pike County, filed suit against Purdue. They alleged Purdue had violated Kentucky law by misleading health care providers, consumers, and officials regarding the risks of addiction, that the misrepresentation led doctors to overprescribe the drug, and that overprescribing resulted in excessive Medicaidspending on OxyContin and programs to address abuse associated with the drug. Purdue removed the case to federal court where it lingered for several years.
The matter was remanded to Pike Circuit Court in late 2013 and the parties began discovery. To streamline the discovery process, the parties crafted a thirty-three-page Agreed Qualified Protective Order. The circuit court approved the agreed order and found "the parties have shown good cause" for a protective order "pursuant to CR2 26.03." (R. 1478). The protective order allowed the parties to unilaterally designate information, documents, depositions, and exhibits as confidential. It also provided that documents designated confidential would not be subject to the Attorney General's disclosure obligations under Kentucky's Open Records Act,3 and it required that any motions or pleadings filed with the court containing or attaching confidential documents be filed under seal.
Purdue produced over 17 million pages of documents, many of which were designated confidential.4 Relatively few of those documents were filed with the circuit court; when they were filed, they were filed under seal. Those relevant to this appeal include: the deposition transcript of Dr. Richard Sackler, a Purdueboard member; several discovery motions and exhibits; and summary judgment motions and exhibits.
In discovery, the parties deposed Dr. Sackler. The court reporter filed Dr. Sackler's deposition transcript with the circuit court as required by CR 30.06. In accordance with the protective order, it was filed under seal.
Additionally, five discovery motions discussed or included confidential documents as exhibits and those motions, in whole or in part, were filed under seal. The circuit court only ruled on the merits of one of these five discovery motions. (R. 1802; order granting the Commonwealth's motion to compel Purdue to produce documents concerning OxyContin that Purdue produced in other OxyContin litigations).5 A ruling on a second motion to compel6 was abated. (R. 1654). The remaining motions to compel7 were not ruled upon at all.
In April 2014, the Commonwealth moved for partial summary judgment based, at least in part, on Purdue's failure to respond to requests foradmission.8 The court ruled that Purdue's failure to respond was an admission of the facts asserted in the requests.9 Purdue asked the circuit court to allow withdrawal of the admissions pursuant to CR 36.02,10 but the request was denied.
Purdue then turned to this Court and petitioned for a "writ of prohibition seeking to prohibit the Pike Circuit Court from enforcing [the] order deeming [the] requests for admissions . . . as admitted." Purdue Pharma L.P. v. Combs, 506 S.W.3d 337, 339 (Ky. App. 2014). While that petition was pending before this Court, the circuit court entered an order abating its consideration of the Commonwealth's motion for partial summary judgment. (R. 1650). When this Court denied the writ petition, id. at 344, Purdue appealed to the Supreme Court. Notice of Appeal, Purdue Pharma, L.P. v. Commonwealth of Kentucky, ex rel. Jack Conway, Attorney General, 2014-SC-000168 (Ky. Apr. 2, 2014).
Before the Supreme Court addressed the writ denial, Purdue and the Commonwealth settled the litigation for $24 million. The settlement date wasDecember 18, 2015. Timing was such that the Supreme Court would never review this Court's denial of Purdue's writ petition.11 Settlement also had a two-fold benefit to Purdue: (1) it avoided judicial resolution of Purdue's liability based on the circuit court's consideration of otherwise sealed documents, which Purdue argues justifies keeping the documents sealed, and (2) settlement eliminated the possibility of future issue preclusion because it would not be a decision on the merits. Miller v. Admin. Office of Courts, 361 S.W.3d 867, 872 (Ky. 2011) ().
The parties presented the settlement agreement to the circuit court for approval. It said the protective order would remain in effect, and the parties were not to disclose confidential documents. The court entered judgment approving and adopting the settlement agreement on December 22, 2015. That judgment also directed how the Attorney General was to utilize the settlement funds.
Appellee Boston Globe Life Sciences Media, LLC d/b/a STAT then submitted an open records request to the Attorney General for Dr. Sackler'sdeposition transcript. The Attorney General, citing the protective order and the settlement agreement incorporating that order, denied STAT's request.
STAT then moved to intervene in this case and to unseal Dr. Sackler's deposition and other sealed documents. Purdue did not oppose intervention, but vigorously opposed the request to unseal any sealed confidential documents on grounds that they were not subject to the common law right of access.
On May 11, 2016, the circuit court granted both of STAT's motions. Applying Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724 (Ky. 2002) ("Noble I"), the circuit court found a common law right of public access to the pre-trial discovery materials previously sealed. It noted that the parties settled shortly after filing Dr. Sackler's deposition in the clerk's office and following extensive briefing on dispositive motions that relied upon multiple sealed exhibits and briefs. Quoting from Fiorella v. Paxton Media Group, 424 S.W.3d 433 (Ky. App. 2014), the circuit court indicated that those court records were appropriate factors in the parties' decision to settle and in the circuit court's decision to enter judgment approving settlement. It further found a strong public interest in disclosing court records in matters involving settlements with government agencies, noting "the public interest in accessing the materials used to make the decision to settle is more than minimal." (R. 2107). It held there is "no highervalue than the public (via the media) having access to these discovery materials so that the public can see the facts for themselves." Id. This appeal followed.
A decision to grant or deny public access to a circuit court's records is a matter soundly within the circuit court's discretion. Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 325 (Ky. App. 2010). We will not disturb its decision absent an abuse of that discretion. Id.
This case is about a rule of "common law." More specifically, it is about a rule of Kentucky common law. Our consideration of its progenitor - the common law of England, and of versions of federal common law that vary among the circuits, is helpful, but neither federal law nor English common law directly answers the question posed here. As said early in our jurisprudence, specifically regarding court records, "the authority to keep and give out copies of records, must be derived from the laws of the state where the record is . . . ." Thomas v. Tanner, 22 Ky. (6 T.B. Mon.) 52, 54 (1827).
The distinctiveness of these various common laws is not as self-evident as one might think. Too often, the phrase "the common law" is used in our appellate opinions without any jurisdictional adjective. That practice can lead one to misconceive of "the common law" as a borderless body of legal principles,articulable by a court in any jurisdiction and just as applicable here as there. That is not so. Erie R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S. Ct. 817, 823, 82 L. Ed. 1188 (1938) ().
Each jurisdiction has its own common law.12 Each distinct body of common law evolved as each jurisdiction reacted to politics,13 technology,14sociology,15 geography,16 and even history,17 specific to that jurisdiction. The evolution of Kentucky common law is prototypical of this phenomenon.
Early Kentucky lawmakers, including its jurists, were among that first generation of Americans who were never subjects of a king. They fully embraced...
To continue reading
Request your trial