Case Number: BC707011 Hearing Date: January 21, 2020 Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROCHEL DISI,

Plaintiff,

Case No.:

BC707011

vs.

[Tentative] RULING

TAD TANOURA, M.D., et al.,

Defendants.

Hearing Date: January 21, 2020

Moving Parties: Defendants Biosphere Medical, Inc. and Merit Medical Systems, Inc.

Responding Party: Plaintiff Rochel Disi

Motion to File Records Under Seal

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

On May 21, 2018, plaintiff Rochel Disi filed a complaint against defendants Tad Tanoura, M.D., The Regents of the University of California, The University of California at Los Angeles, Biosphere Medical, Inc., Merit Medical Systems, Inc., and Merit Bioacquisition Co. for medical malpractice, medical battery, medical malpractice – lack of informed consent, strict products liability – design and/or manufacturing defect, negligent products liability – failure to warn, negligence per se, breach of express warranty, breach of implied warranty, and misrepresentation.

On September 20, 2018, plaintiff filed a FAC for (1) medical malpractice, (2) medical battery, (3) medical malpractice – lack of informed consent, (4) strict products liability – manufacturing defect, (5) negligent design, (6) negligence, (7) strict products liability – failure to warn, (8) negligent products liability – failure to warn, and (9) misrepresentation.

On March 8, 2019, the court overruled the demurrer to the 6th cause of action and sustained with leave to amend the demurrer to the 7th through 9th causes of action.

On March 28, 2019, plaintiff filed a Second Amended Complaint.

On September 18, 2020, plaintiff filed a Third Amended Complaint.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Defendants Biosphere Medical, Inc. and Merit Medical Systems, Inc. request that the court seal specified exhibits to defendants’ motion for summary judgment or, in the alternative, motion for summary adjudication:

1. Specifications for the mother solution from which the Subject Batch of Embosphere Microspheres was created [Tiffany Hunter decl., Exh. 1];

2. Specification for the Subject Batch [Hunter decl., Exh. 2];

3. Quality testing records for the mother solution from which the Subject Batch was created [Hunter decl., Exh. 3];

4. Quality testing records for the Subject Batch [Hunter decl., Exh. 4];

5. Reanalysis quality testing records for the sample of the Sample Batch retained by defendants in order to perform reanalysis testing to assess conformity with design specifications in the event an issue arises with a batch [Hunter decl., Exh. 5];

6. Sales invoice containing proprietary pricing information for the Subject Batch [Hunter decl., Exh. 6].

The court finds that defendants have not met their burden. Defendants’ present the declaration of attorney Tiffany Hunter in support of their motion, which is not competent evidence to support the court making the findings of facts that establish the requirements set forth in CRC Rule 2.550(d). Thus, defendants have not met their burden of showing that there exists an overriding interest in protecting disclosure of the documents requested, that a substantial probability exists that an overriding interest will be prejudiced if the records are not sealed, that the proposed sealing is narrowly tailored, and that less restrictive means do not exist.

The motion is therefore DENIED WITHOUT PREJUDICE.

The parties are ordered to meet and confer as to whether defendants can further narrow their request, as argued by plaintiff, with respect to documents identified as DEF000044-46.

Moving defendants are ordered to give notice.