IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`
`
`LLOYD BELL, individually and )
`as Executor of the Estate of )
`Betty Whitley Bell, Deceased, )
`
`)
`
`)
`
`)
`
`)
`
`)
`AMERICAN INTERNATIONAL
` )
`INDUSTRIES, et al.,
` )
`
`)
`
`)
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`Defendants.
`
`1:17CV111
`
`FILED UNDER SEAL
`
`MEMORANDUM OPINION AND ORDER
`
`OSTEEN, JR., District Judge
`
`
`
`Before this court is Northwell Health, Inc.’s (“Northwell”)
`
`Motion for Reconsideration of its Motion to Intervene and Extend
`
`Protective Order. (Doc. 388.) Also before this court is a Motion
`
`to Vacate the Preliminary Protective Order of September 25, 2020,
`
`(Doc. 368), filed by Defendant American International Industries
`
`(“AII”) and joined by Defendant Whittaker, Clark & Daniels, Inc.
`
`(“WCD”), (Doc. 373). Lastly before this court are motions to
`
`seal the motion to vacate and related briefing. (Docs. 370, 375,
`
`378, 381.) The motion for reconsideration and motion to vacate
`
`will be granted; the motions to seal will be denied.
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 1 of 40
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`
`
`LLOYD BELL, individually and )
`as Executor of the Estate of )
`Betty Whitley Bell, Deceased, )
`
`)
`
`)
`
`)
`
`)
`
`)
`AMERICAN INTERNATIONAL
` )
`INDUSTRIES, et al.,
` )
`
`)
`
`)
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`Defendants.
`
`1:17CV111
`
`FILED UNDER SEAL
`
`MEMORANDUM OPINION AND ORDER
`
`OSTEEN, JR., District Judge
`
`
`
`Before this court is Northwell Health, Inc.’s (“Northwell”)
`
`Motion for Reconsideration of its Motion to Intervene and Extend
`
`Protective Order. (Doc. 388.) Also before this court is a Motion
`
`to Vacate the Preliminary Protective Order of September 25, 2020,
`
`(Doc. 368), filed by Defendant American International Industries
`
`(“AII”) and joined by Defendant Whittaker, Clark & Daniels, Inc.
`
`(“WCD”), (Doc. 373). Lastly before this court are motions to
`
`seal the motion to vacate and related briefing. (Docs. 370, 375,
`
`378, 381.) The motion for reconsideration and motion to vacate
`
`will be granted; the motions to seal will be denied.
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 1 of 40
`
`
`
`I.
`
`BACKGROUND
`
`Betty Whitley Bell (“Mrs. Bell”) worked most of her career
`
`as a hairdresser and used Clubman brand talc powder for over
`
`thirty years, beginning in the 1970s, (Doc. 294 -9 at 6–8),1 and
`
`continuing through 2009, (id. at 7-8). AII purchased the Clubman
`
`brand in the late 1980s. (Doc. 294-3 ¶ 8.) Mrs. Bell was
`
`diagnosed with mesothelioma in July 2015. (Doc. 322-2 at 2;
`
`Doc. 205-11 at 5–6.)
`
`In September 2015, Mrs. Bell filed workers’ compensation
`
`claims with the North Carolina Industrial Commission, asserting
`
`that she was exposed to asbestos during prior employment with
`
`two textile employers—Hoechst Celanese Corporation and Pillowtex
`
`Corporation. (Doc. 322-2.) Mrs. Bell’s claims were eventually
`
`dismissed without prejudice. (Doc. 333 -3.)
`
`Mrs. Bell filed this case in February 2017, arguing that
`
`exposure to asbestos in Clubman talc powder caused her
`
`mesothelioma. (Doc. 1.) Mrs. Bell passed away in June 2017.
`
`(Doc. 39-2 at 2.) The executor of her estate, Lloyd Bell, was
`
`substituted as Plaintiff in this action after Mrs. Bell passed.
`
`(Doc. 40.)
`
`
`1 All citations in this Memorandum Opinion and Order to
`documents filed with the court refer to the page numbers located
`at the bottom right-hand corner of the documents as they appear
`on CM/ECF.
`
`- 2 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 2 of 40
`
`
`
`In April 2019, Plaintiff filed a new workers’ compensation
`
`claim against Mrs. Bell’s two former textile employers seeking
`
`death benefits.2 (Doc. 322-5.) The claims were again dismissed
`
`without prejudice. (Doc. 333-11.)
`
`In January 2020, the peer-reviewed Journal of Occupational
`
`and Environmental Medicine published an article titled
`
`“Mesothelioma Associated With the Use of Cosmetic Talc.”
`
`(Doc. 274-1 at 2.) Dr. Jacqueline Moline was the article’s lead
`
`author. (Id.) The article analyzed medical records and
`
`deposition transcripts for thirty-three anonymous individuals
`
`diagnosed with mesothelioma for whom Dr. Moline had conducted a
`
`“medico-legal evaluation as part of tort litigation .” (Id.) The
`
`article stated that each of the thirty -three individuals had no
`
`known asbestos exposure other than talcum powder. (Id.) The
`
`article claimed to be “the first large case series to identify
`
`cosmetic talcum powder contaminated with asbestos as the cause
`
`of malignant mesothelioma in cosmetic talc users .” (Id. at 5.)
`
`Prior to drafting the article, Dr. Moline received Institutional
`
`Review Board (“IRB”) approval from her employer, Northwell.
`
`(Doc. 2652-1 at 2; Doc. 392-1 at 2–4.) That approval referenced
`
`federal regulations governing human subject research and waived
`
`
`2 Both this and the prior workers’ compensation filings were
`subject to a state statute that criminalizes the making of false
`statements to obtain benefits. N.C. Gen. Stat . § 97-88.2(a).
`
`- 3 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 3 of 40
`
`
`
`the requirement that Dr. Moline obtain informed consent from the
`
`individuals whose cases she planned to study. (Doc. 392 -1 at 2–
`
`3.)
`
`Dr. Moline’s work has been influential. For example, after
`
`her article had been published online, she testified to Congress
`
`about her findings. (Doc. 331-11.) In her congressional
`
`testimony she used a pseudonym—“Ms. D”—to discuss one of the
`
`thirty-three individuals analyzed for her article. (Id. at 5–6.)
`
`Dr. Moline had been retained as an expert in this case.
`
`(See, e.g., Doc. 188-8.) Because the facts of Mrs. Bell’s case
`
`paralleled the description of Ms. D in Dr. Moline’s
`
`congressional testimony, AII suspected that Mrs. Bell was one of
`
`the thirty-three anonymous individuals that the article had
`
`studied. (Doc. 188 at 6-7.) If so, AII believed that would
`
`undermine the article’s express premise and the related expert
`
`testimony that none of the individuals had any known exposure to
`
`asbestos other than talcum powder because Mrs. Bell and her
`
`estate filed workers’ compensation claims alleging occupational
`
`exposure to asbestos from textile workplaces. (Id. at 3.) In a
`
`deposition for a different mesothelioma case, AII asked
`
`Dr. Moline for specifics about the thirty-three individuals.
`
`(See Doc. 188-1 at 6.) Dr. Moline declined to answer due to
`
`confidentiality concerns. (Id.) The plaintiff’s counsel, who
`
`- 4 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 4 of 40
`
`
`
`also represents Plaintiff in this case, advised AII that if it
`
`sought information regarding the thirty-three individuals, then
`
`it would have to subpoena Northwell. (Id. at 6–7.) AII did so,
`
`(Doc. 168-1), and Plaintiff moved to quash the subpoena,
`
`(Doc. 168).
`
`After AII provided Northwell with a HIPAA authorization
`
`form signed by Plaintiff, (Doc. 179-6), Northwell produced a
`
`single five-page document (the “Northwell Document”), (Doc. 182-
`
`5). The document is a spreadsheet containing information on all
`
`thirty-three individuals the article studied, but importantly
`
`the entire document is redacted except for the row headings and
`
`the column listing Mrs. Bell’s information . (Id. at 4–8.) Upon
`
`learning that this document had been disclosed, Plaintiff filed
`
`an emergency motion for a protective order pursuant to Federal
`
`Rule of Civil Procedure 26(c) to preclude discovery and inquiry
`
`into the identities of the thirty-three individuals. (Doc. 182
`
`at 5–9, 12.) The motion also sought for all copies of the
`
`Northwell Document to be destroyed and not disseminated in th is
`
`case or any other forum. (Id. at 12.) The motion was set for
`
`hearing. (Text Entry 09/18/2020.)
`
`On September 25, 2020, the Magistrate Judge held that the
`
`Northwell Document could be used in this case but that it, and
`
`the information therein confirming Mrs. Bell was one of the
`
`- 5 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 5 of 40
`
`
`
`thirty-three individuals the article studied, was “confidential
`
`and limited solely to this case.” (Doc. 206 at 94, 96.) The
`
`Magistrate Judge explicitly stated that this limited protective
`
`order could potentially be reconsidered as the case progressed.
`
`(Id. at 96.) In December 2020, Northwell filed a Motion to
`
`Intervene and Extend Protective Order, seeking to prevent
`
`defense counsel from questioning Dr. Moline about any link
`
`between Mrs. Bell and the article. (Doc. 258.)
`
`Before Northwell’s motion was adjudicated, Plaintiff
`
`effectively withdrew Dr. Moline as an expert by not presenting
`
`her for deposition by the court-ordered January 7, 2021
`
`deadline. (Order (“MJ’s Order”) (Doc. 309) at 3.) Accordingly,
`
`in February 2021, the Magistrate Judge denied Northwell’s
`
`intervention motion as procedurally moot and untimely, as well
`
`as substantively meritless. (Id. at 3–8.) Northwell filed an
`
`objection, (Doc. 316), but this court affirmed the Magistrate
`
`Judge’s decision, (Doc. 350 at 8).
`
`In July 2021, this court granted AII’s motion for summary
`
`judgment, and judgment was entered the following month.
`
`(Doc. 361 at 12–13; See Doc. 366.) The case was closed.
`
`On September 29, 2021, AII filed the instant motion
`
`requesting this court vacate the order protecting the
`
`identification of Mrs. Bell as one of the individuals in the
`
`- 6 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 6 of 40
`
`
`
`article from disclosure outside this case. (Doc. 368.) AII filed
`
`a brief in support of its motion. ( Def. AII’s Br. in Supp. of
`
`Mot. to Vacate Prelim. Protective Order of Sept. 25, 2020
`
`(“AII’s Br.”) (Doc. 369).) Codefendant WCD filed a notice that
`
`it joins in AII’s motion. (Doc. 373.) Plaintiff responded in
`
`opposition to the motion, (Pl.’s Resp. in Opp’n to AII’s Mot. to
`
`Vacate Prelim. Protective Order of Sept. 25, 2020 & WCD’s Notice
`
`of Joinder (“Pl.’s Resp.”) (Doc. 377)), and AII replied, (Def.
`
`AII’s Reply in Supp. of Mot. to Vacate Prelim. Protective Order
`
`of Sept. 25, 2020 (“AII’s Reply”) ( Doc. 380)). In June 2022,
`
`Northwell filed a motion for reconsideration of its intervention
`
`motion, (Doc. 388), accompanied by a brief, ( Northwell’s Suppl.
`
`Mem. of Law in Supp. of Mot. for Recons. of Mot. to Intervene
`
`and Extend Protective Order (“Northwell’s Recons. Br.”)
`
`(Doc. 391)). That motion is unopposed. Northwell also filed a
`
`response in opposition to AII’s motion to vacate the protective
`
`order, (Northwell’s Resp. in Opp’n to AII’s Mot. to Vacate
`
`Prelim. Protective Order of Sept. 25, 2020 & WCD’s Notice of
`
`Joinder (“Northwell’s Resp.”) (Doc. 392)), to which AII replied,
`
`(Doc. 394).
`
`The motion to vacate and related briefing, as well as
`
`Northwell’s brief supporting its reconsideration motion, have
`
`all been filed under temporary seal and are accompanied by
`
`- 7 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 7 of 40
`
`
`
`corresponding motions to seal. (Docs. 370, 375, 378, 381 , 390,
`
`395.) AII and WCD state in their motions to seal that they do
`
`not believe the filings need to be sealed and have only filed
`
`motions to seal because Plaintiff and Northwell claim
`
`confidentiality. (Doc. 370 at 1–2; Doc. 375 at 1; Doc. 381
`
`at 1–2; Doc. 395 at 1–2.)
`
`II. ANALYSIS
`
`
`
`The motion for reconsideration, motion to vacate the
`
`protective order, and the motions to seal are all ripe for
`
`review. This court will address the motion s in that order.
`
`A.
`
`Motion for Reconsideration
`
`
`
`Northwell seeks reconsideration of its interven tion motion
`
`so it can become an intervening party, allowing it to
`
`“adequately defend its continuing interests in this case.”
`
`(Northwell’s Recons. Br. (Doc. 391) at 6.) The reconsideration
`
`motion is unopposed.
`
`
`
`After carefully reviewing Northwell’s reconsideration
`
`motion and supporting brief, (Doc. 388; Northwell’s Recons. Br.
`
`(Doc. 391)), this court will grant the motion to the extent
`
`necessary to admit Northwell as a formal intervening party in
`
`- 8 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 8 of 40
`
`
`
`this case.3 Accordingly, this court has fully considered and
`
`herein addressed the relevant arguments contained in Northwell’s
`
`response to AII’s motion to vacate the protective order ,
`
`(Northwell’s Resp. (Doc. 392)).
`
`B.
`
`Motion to Vacate Protective Order
`
`As a threshold matter, the parties disagree what standard
`
`this court should apply in adjudicating the motion to vacate the
`
`protective order. AII4 insists that the Northwell Document is a
`
`judicial record. (AII’s Br. (Doc. 369) at 12.) AII maintains
`
`that because the Northwell Document is a judicial record there
`
`is a presumption of public access that “can be rebutted only if
`
`‘countervailing interests heavily outweigh the public interests
`
`
`3 Northwell’s reconsideration motion was made pursuant to
`Federal Rule of Civil Procedure 54(b). (Doc. 388 at 1; see also
`Northwell’s Recons. Br. (Doc. 391) at 4.) That is not the
`appropriate vehicle because Rule 54(b) reconsideration motions
`must be made “before the entry of a judgment adjudicating all
`the claims and all the parties’ rights and liabilities.” Here,
`such a judgment adjudicating all the parties’ claims and
`liabilities has been entered. (Doc. 366.)
`The appropriate vehicle for Northwell’s reconsideration
`motion is Rule 60(b)(6), which allows this court to relieve a
`party from an order for any “reason that justifies relief.” This
`court has carefully reviewed Northwell’s motion and supporting
`brief pursuant to that Rule and finds that they provide
`sufficient grounds to justify relief from this court’s prior
`order denying Northwell’s intervention motion.
`
` 4
`
` Although WCD has filed a notice that it joins AII’s motion
`to vacate, (Doc. 373), for ease of reference this court will
`refer to AII as the party making the arguments in favor of
`vacating the protective order.
`
`
`- 9 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 9 of 40
`
`
`
`in access.’” (Id. at 13 (quoting BASF Agro B.V. v. Makhteshim
`
`Agan of N. Am., Inc., 1:10cv276, 2013 WL 12178583, at *1
`
`(M.D.N.C. Sept. 30, 2013)).) Plaintiff and Northwell disagree
`
`that the Northwell Document qualifies as a judicial record and
`
`contend that the motion to vacate must be justified by “good
`
`cause” pursuant to Federal Rule of Civil Procedure 26(c). (Pl.’s
`
`Resp. (Doc. 377) at 12; Northwell’s Resp. (Doc. 392) at 7–8.)
`
`“The type of documents or information which will be
`
`revealed by the modification to the protective order directly
`
`bears on the decision to modify. . . . [If] the documents are
`
`so-called ‘judicial documents,’ any presumption in favor of
`
`maintaining confidentiality must now contend with a presumption
`
`in favor of public access.” SmithKline Beecham Corp. v. Synthon
`
`Pharms., Ltd., 210 F.R.D. 163, 167 (M.D.N.C. 2002). That right
`
`of public access “derives from two independent sources: the
`
`common law and the First Amendment.” Va. Dep’t of State Police v.
`
`Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004). But “the mere
`
`filing of a document with a court does not render the document
`
`judicial.” Hatch v. Demayo, No. 1:16cv925, 2020 WL 6161533, at *5
`
`(M.D.N.C. Oct. 21, 2020) (internal quotation marks omitted)
`
`(quoting In re Policy Mgmt. Sys. Corp., 67 F.3d 296 (table), Nos.
`
`94–2254 & 94-2341, 1995 WL 541623, *4 (4th Cir. 1995) ).
`
`- 10 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 10 of 40
`
`
`
`Rather, “documents filed with the court are ‘judicial
`
`records’ if they play a role in the adjudicative process, or
`
`adjudicate substantive rights.” In re. U.S. for an Order Pursuant
`
`to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th Cir. 2013).
`
`Applying that definition, court filings may be judicial records
`
`if “they were filed with the objective of obtaining judicial
`
`action or relief.” Id. at 291. Crucially, however, “courts in
`
`this circuit have found that documents filed to facilitate
`
`protective orders and other discovery motions do not qualify as
`
`judicial records.” United States ex rel. Thomas v. Duke Univ.,
`
`No. 1:17cv276, 2018 WL 4211375, at *4 (M.D.N.C. Sept. 4, 2018)
`
`(collecting cases). Fourth Circuit courts have ruled similarly
`
`regarding documents filed to facilitate motions to seal. E.g.,
`
`id. (concluding that “motions to seal concern procedural issues
`
`similar to those requesting protective orders [and thus] . . . do
`
`not qualify as ‘judicial documents’”) .
`
`Here, AII argues that the Northwell Document is a judicial
`
`record because it was attached to AII’s Opposition to Northwell
`
`Health’s Objections and Appeal and “has also been the subject of
`
`numerous motions.” (AII’s Br. (Doc. 369) at 12.) But that
`
`Opposition to Northwell’s Objections and Appeal and each of
`
`those motions were filed in relation to the protective order,
`
`discovery, or sealing requests. (See e.g., Docs. 168, 179, 331.)
`
`- 11 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 11 of 40
`
`
`
`Therefore, the Northwell Document does not qualify as a judicial
`
`record, and no presumptive right of public access attaches. See
`
`United States ex rel. Thomas, 2018 WL 4211375, at *4.
`
`Because no public right of access has presumptively
`
`attached, AII’s motion is not governed by the First Amendment or
`
`common law but rather the “good cause” standard from Federal
`
`Rule of Civil Procedure 26(c), the rule providing for protective
`
`orders. While the rule itself does not address modification of
`
`protective orders, “[a] district court has discretionary
`
`authority to modify a protective order it has previously entered
`
`‘for what it deems good cause shown.’” Schaefer v. Fam. Med.
`
`Ctrs. of S.C., LLC, C/A No. 3:18-cv-02775-MBS, 2019 WL 2135675,
`
`at *12 (D.S.C. May 16, 2019) (quoting United States v. (Under
`
`Seal), 794 F.2d 920, 928 n.6 (4th Cir. 1986)); accord In re
`
`Kolon Indus. Inc., 479 F. App’x 483, 485–86 (4th Cir. 2012). As
`
`in this case, “[a] final judgment . . . does not diminish the
`
`district court judge’s right to lift or to modify [protective]
`
`orders.” Factory Mut. Ins. v. Insteel Indus., Inc. , 212 F.R.D.
`
`301, 303 (M.D.N.C. 2002). Because the parties did not stipulate
`
`to a protective order, and instead Plaintiff moved for a
`
`protective order during discovery and that motion was granted—
`
`the finding of that good cause for the protective order was
`
`necessarily established, see Longman v. Food Lion, Inc., 186
`
`- 12 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 12 of 40
`
`
`
`F.R.D. 331, 333 (M.D.N.C. 1999)—“[t]he party seeking to modify a
`
`protective order bears the burden of showing good cause for the
`
`modification.” SmithKline Beecham, 210 F.R.D. at 166.
`
`In determining whether that party has shown good cause,
`
`courts consider four factors: “[1] the reason and purpose for a
`
`modification, [2] whether a party has alternative means
`
`available to acquire the information, [3] the type of protective
`
`order which is at issue, and [4] the type of materials or
`
`documents which are sought.” Id.; accord Am. Heartland Port,
`
`Inc. v. Am. Port Holdings, Inc., 53 F. Supp. 3d 871, 880–81
`
`(N.D.W. Va. 2014); Schaefer, 2019 WL 2135675, at *12. As will be
`
`discussed, the first factor weighs in AII’s favor, the second in
`
`Plaintiff’s favor, the third is neutral, and the fourth in AII’s
`
`favor. This court finds that because more factors weigh in favor
`
`of vacating the order than preserving it , AII has met its burden
`
`to show good cause, and the protective order will be vacated.
`
`Each factor will now be addressed in turn.
`
`1.
`
`Reason for Modification
`
`AII seeks to vacate the protective order to allow for
`
`“public access to data that undermines claims that plaintiffs’
`
`experts and counsel continue to present to courts and fact-
`
`finders.” (AII’s Br. (Doc. 369) at 13.) AII explains that the
`
`purpose of its motion is “to prevent Moline and others from
`
`- 13 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 13 of 40
`
`
`
`misrepresenting to courts, juries, and the public the truth
`
`about a study supposedly showing that cosmetic talc causes
`
`mesothelioma.” (Id. at 14.) AII argues that if the order
`
`protecting the Northwell Document is lifted , then it will be
`
`able to debunk “the false narrative that the only plausible
`
`asbestos exposures in the 33 cases were from contaminated
`
`cosmetic talc” because it will be able to show that at least one
`
`of the individuals the article studied , Mrs. Bell, “had
`
`alternative exposures to asbestos at her job sites.” (Id. at 14,
`
`16.) AII explains that it “and other defendants continue to be
`
`confronted with Moline’s [a]rticle in litigation, and other
`
`plaintiffs’ experts rely on it as support for their opinions.”
`
`(Id. at 17.) AII asserts that plaintiffs in these other cases
`
`are using the protective order from this case “as a shield
`
`against cross-examination” to prevent the discrediting of the
`
`article. (Id. at 16.)
`
`Plaintiff disagrees that the Northwell Document undermines
`
`the article’s claims. (See Pl.’s Resp. (Doc. 377) at 15–16.)
`
`Plaintiff insists that the workers’ compensation claims do not
`
`establish that Mrs. Bell in fact had alternative exposure to
`
`asbestos at the textile workplaces; rather, those claims are
`
`merely unsupported allegations. (Id.) Moreover, Plaintiff and
`
`Northwell argue that “Defendants may effectively cross-examine
`
`- 14 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 14 of 40
`
`
`
`Dr. Moline on the exact issue they have with the Moline Study
`
`without disclosing . . . Mrs. Bell’s identity.” (Id. at 16; see
`
`also Northwell’s Resp. (Doc. 392) at 11.) Plaintiff points to
`
`trial testimony in a California state court case as an example.
`
`(Id.)
`
`In essence, AII seeks to vacate the protective order so the
`
`Northwell Document can be used in other litigation. This is “the
`
`most forceful” grounds for modifying a protective order and
`
`“builds on a long line of cases recognizing the propriety of
`
`access to the fruits of one litigation to facilitate the
`
`preparation of other cases.” 8A Charles A. Wright & Arthur R.
`
`Miller, Federal Practice and Procedure § 2044.1 (3d ed. Apr.
`
`2022 update) But nevertheless “[a] court should be hesitant to
`
`modify protective orders for matters unrelated to the litigation
`
`in front of it because . . . modifying protective orders for
`
`other litigation involves re-litigation over issues that that
`
`have nothing to do with the lawsuit in front of the court . . .
`
`[and can] burden[] both the court and the parties.” SmithKline
`
`Beecham, 210 F.R.D. at 166 (internal citation omitted).
`
`Moreover, “[s]uch modifications [risk] involv[ing] the court in
`
`a controversy with which it is not familiar and over which it
`
`lacks control.” Id.
`
`- 15 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 15 of 40
`
`
`
`AII’s reason for seeking to vacate the protective order
`
`seems to outweigh those concerns. While this court is hesitant
`
`to justify a modification of its own protective order solely in
`
`light of collateral cases, it also recognizes that the issues
`
`and controversies in those collateral cases intimately intersect
`
`with those litigated in this case. Further, although this court
`
`agrees with Plaintiff that the mere existence of the
`
`unsuccessful workers’ compensation claims does not definitively
`
`establish that Mrs. Bell was in fact exposed to asbestos at the
`
`textile workplaces, Mrs. Bell nonetheless made statements to the
`
`Industrial Commission, while represented by counsel, that she
`
`had sustained an occupational disease ca used by exposure to
`
`asbestos during employment with Hoechst Celanese Corporation and
`
`Pillowtex Corporation. (Doc. 322-2 at 2.) The alleged
`
`occupational disease was mesothelioma. (Doc. 322 -3 at 2.) As
`
`Mrs. Bell’s counsel explained, “[s]he made a [workers’
`
`compensation] claim because she thought she might have been
`
`exposed.” (Doc. 322-7 at 6.) Mrs. Bell’s employment history, as
`
`well as her belief that she may have been exposed to asbestos
`
`during her textile employment, undermines the weight of Dr.
`
`Moline’s finding that each of the “33 cases . . . had no known
`
`exposure to asbestos other than prolonged use of talcum powder.”
`
`(Doc. 274-1 at 5.) The fact is that at least one study
`
`- 16 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 16 of 40
`
`
`
`participant reported to a state agency that she did have another
`
`known asbestos exposure, at least one known to the study
`
`participant. Given the groundbreaking nature of the article and
`
`its express premise that all individuals studied had no known
`
`alternative asbestos exposures, the fact that one of the
`
`individuals claimed otherwise has direct bearing on the study’s
`
`credibility. This court expressed concern about this seeming
`
`contradiction before, (Doc. 350 at 7 n.2), and does so again.
`
`This court’s concern is magnified considering the influence
`
`the article has had on cosmetic talc litiga tion nationwide. For
`
`example, Dr. Moline gave testimony discussing her article in a
`
`California state court cosmetic talc trial . (See Doc. 369-1.)
`
`The plaintiff’s counsel relied on Dr. Moline’s article in his
`
`closing argument to connect cosmetic talc exposure to asbestos:
`
`“Gosh, does cosmetic talc really cause mesothelioma? Well,
`
`Dr. Moline, she published a paper on this.” (Doc. 369-2 at 6–7.)
`
`Dr. Moline has given testimony in many other cosmetic talc
`
`cases. (See Doc. 197-1 at 19.) Moreover, other expert witnesses
`
`have begun relying on the article for the basis of their
`
`opinions. (see, e.g., Doc. 331-13 at 4; Doc. 331-14 at 3; Doc.
`
`331-15 at 3.) [O]ne [expert] describe[ed] it as “the only peer-
`
`reviewed paper that [he] know[s]” to support the conclusion that
`
`cosmetic talc use by hairdressers releases material amounts of
`
`- 17 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 17 of 40
`
`
`
`asbestos into the air. (Doc. 188-14 at 6–7.)5 When entering
`
`bankruptcy because of cosmetic talc liabilities, one prominent
`
`cosmetic talc seller specifically discussed the article’s
`
`integral role in supporting the plaintiffs’ claims. (Doc. 380-1
`
`at 98–99.)
`
`This court finds that with the protective order in place
`
`defense counsel in cosmetic talc cases across the country are
`
`stymied from effectively cross-examining plaintiff expert
`
`witnesses on the article’s foundation. The following exchange
`
`from Dr. Moline’s cross-examination in the California state
`
`trial is illustrative:
`
`Q . . . Other than cosmetic talc, you eliminate d
`anybody from your study who might have had other
`asbestos exposures; is that correct?
`
` To the best of my knowledge, yes.
`
` A
`
` Q
`
` Okay. And after you published the paper and
`testified in Congress about the paper, did you come to
`learn that some of the information regarding one or
`more of the people in your study was incorrect as
`published?
`
` A
`
` There was a question about one particular individual
`that I was presented with information about, but I --
`based on the information that I had, there was -- it
`wasn’t determined that they had the -- any additional
`exposure. I’m not sure of any others.
`
` . . .
`
` .
`
`
`5 Evidently, at least one similar peer-review paper was
`published in the months after the Moline article was released.
`(See Doc. 282-5.)
`
`- 18 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 18 of 40
`
`
`
`Q Did you publish an errata with regard to your paper
`after you found out that this one plaintiff that was
`provided to you had other alleged exposures?
`
` A
`
` As I said just a minute ago, there was an allegation
`or there was a -- a comment, but it was shown to be
`without evidence, so I did not publish an errata based
`on that one individual.
`
`(Doc. 377-1 at 6.)
`
`
`
`Dr. Moline offered no basis for her statement that an
`
`errata was unnecessary because the allegation of alternative
`
`exposure “was shown to be without evidence. ” (Id.) Indeed, she
`
`did not have to because the protective order effectively
`
`shielded the assertion from cross-examination. (See id.) If the
`
`order was not in place, then defense counsel in that case—and
`
`defense counsel in similar cosmetic talc cases—would be able to
`
`establish that Mrs. Bell was one of the individuals the article
`
`studied and then challenge Dr. Moline with Mrs. Bell and
`
`Plaintiff’s workers’ compensation claims asserting, under
`
`criminal penalty for false statements, that Mrs. Bell was
`
`exposed to asbestos at textile job sites. Defense counsel could
`
`show that those workers’ compensation claims were not
`
`adjudicated on the merits, rather the y were dismissed without
`
`prejudice, (Docs. 333-3, 333-11), weakening the credibility of
`
`Dr. Moline’s statement that the allegation of alternative
`
`exposure “was shown to be without evidence.”
`
`- 19 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 19 of 40
`
`
`
`
`
`Perhaps more significant than this example of a hamstrung
`
`cross-examination is the Daubert v. Merrell Dow Pharms., Inc. ,
`
`509 U.S. 579 (1993) issue created by concealment of Mrs. Bell’s
`
`possible exposure. Dr. Moline testified that “based on the
`
`information . . . it wasn’t determined that [the research
`
`subjects] had . . . any additional exposure.” (Doc. 377-1 at 6.)
`
`Federal Rule of Evidence 702 requires that expert testimony be
`
`“based on sufficient facts or data” and be “the product of
`
`reliable principles and methods.” Relatedly, Daubert imposes a
`
`list of factors a court should consider in assessing the
`
`reliability of expert testimony, including “the known or
`
`potential rate of error and the existence and maintenance of
`
`standards controlling the technique ’s operation.” 509 U.S. at
`
`594 (internal citations omitted). Mrs. Bell’s assertion that she
`
`may have been exposed to asbestos through the textile industry
`
`and Dr. Moline’s possible rejection of that potential fact are
`
`important pieces of information to aid in the assessment of the
`
`potential rate of error of the study’s assertion that the
`
`thirty-three participants had no asbestos exposure other than
`
`talcum powder. Similarly, Dr. Moline’s possible rejection of
`
`evidence of additional exposure goes directly to the issue of
`
`standards controlling her study’s ope ration.
`
`- 20 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 20 of 40
`
`
`
`
`
`Plaintiff quotes Mrs. Bell’s diagnosing pathologist who
`
`asserted “these requests go far beyond . . . appropriate
`
`investigation into scientific merit or arguments that are made
`
`in the scientific literature.” (Pl.’s Resp. (Doc. 377) at 14
`
`(quoting Doc. 179-8 at 11).) But Plaintiff fails to recite what
`
`this doctor considers “appropriate investigation into scientific
`
`merit.” (Id.)
`
`
`
`From this court’s perspective, inquiry into the accuracy of
`
`facts and assumptions underlying scientific merit is not only an
`
`appropriate inquiry, but also necessary and required. “The
`
`inquiry envisioned by [Federal] Rule [of Evidence] 702 is
`
`. . . a flexible one. Its overarching subject is the scientific
`
`validity and thus the evidentiary relevance and reliability—of
`
`the principles that underlie a proposed submission.” Daubert,
`
`509 U.S. at 594–95. Even if reliability is examined by a court
`
`and deemed sufficient to support admissibility, relevant cross-
`
`examination of an expert includes “factual underpinnings [which]
`
`. . . affect the weight and credibility of the witness’
`
`assessment.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195
`
`(4th Cir. 2017) (internal quotation mark omitted) (quoting
`
`Structural Polymer Grp. v. Zoltek Corp., 543 F.3d 987, 997 (8th
`
`Cir. 2008)).
`
`- 21 -
`
`Case 1:17-cv-00111-WO-JEP Document 398 Filed 09/13/22 Page 21 of 40
`
`
`
`
`
`In this case, a principal factual underpinning of the
`
`article is that in all thirty-three cases studied “no identified
`
`source apart from the talcum powder” was identified. (Doc. 274-1
`
`at 2.) The absence of any specific information on the identities
`
`of the individuals studied precludes inquiry into the basis of
`
`the factual underpinning of no known exposure to asbestos other
`
`than talcum powder.
`
`This is the reason why AII seeks to vacate the protective
`
`order: to be able to challenge the article’s fundamental premise
`
`that none of the thirty-three individuals had any known
`
`alternative asbestos exposures. This is a valid purpose,
`
`especially given the groundbreaking nature and widespread
`
`influence of the article. Mrs. Bell’s workers’ compensation
`
`claims, and her employment at the textile facilities, is clearly
`
`relevant to the article’s findings. If presented with
`
`Mrs. Bell’s workers’ compensation claims, Dr. Moline and other
`
`expert witnesses for cosmetic talc plaintiffs may be able to
`
`persuasively explain that they do not constitute known
`
`alternative exposures because the claims never amounted to more
`
`than unproven allegations. But at a minimum, defendants in
`
`cosmetic talc cases deserve a fair opportunity to explore the
`
`weight to be assigned to Dr. Moline’s facts and conclusions—an
`
`opportunity not previously available due to the absence of
`
`- 22 -
`
`Case 1:17-cv-00111-W
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
