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Wisniewski v. Frommer

United States District Court, M.D. Pennsylvania

April 19, 2018

JAMES FROMMER, D.O., et al., Defendants

          Judge Kane


          Martin C. Carlson United States Magistrate Judge

         I. Factual Background

         In the normal course of litigation, the process of unsealing exhibits so that they may be accessible to an appellate court reviewing a trial court decision would seem to be a simple matter, readily achieved by the agreement of the parties. This simple task should never be a subject that encompasses months of litigation, multiple pleadings, hundreds of pages of filings, and motions to re-consider an order which simply promotes transparency and fairness in litigation by unsealing both parties' exhibits.

         Regrettably, this is not a normal case.

         This is a lawsuit filed by Thomas Wisniewski, an inmate in the custody of the Pennsylvania Department of Corrections, housed at the State Correctional Institution at Smithfield. Wisniewski initiated this lawsuit in the Court of Common Pleas of Huntingdon County on August 17, 2015, by filing a complaint and an emergency action for a temporary restraining order. The basis for the action was specific: Wisniewski was challenging a decision by Correct Care Solutions, LLC (“CCS”) -- the private company contracted to provide medical services for inmates at SCI-Smithfield - and two of its physicians, as well as employees of the DOC, discontinuing a particular dosage of Ultram, also called Tramadol, that the plaintiff claims he needs to manage his chronic back pain, as well as related decisions regarding the course of his therapeutic and palliative care for back pain.

         As originally filed, the plaintiff's claims sought relief for alleged violations of Pennsylvania state law, or for breaches of contract, medical malpractice and other tortious conduct. In July 2016, the plaintiff amended the complaint to include claims alleging that the defendants' decision to prohibit or otherwise restrict the plaintiff's use of Tramadol also constituted a violation of the Eighth Amendment to the United States Constitution. On the basis of this allegation, CCS removed the action from state court to federal court under its federal question jurisdiction pursuant to 28 U.S.C. §§ 1441 and 1446.

         On August 23, 2016, the Court held an evidentiary hearing on Wisniewski's request for injunctive relief on his claims. In connection with that hearing, mindful of the plaintiff's concerns regarding medical privacy, the Court directed that the parties' respective hearing exhibits (Docs. 18, 19) be filed under seal. On October 12, 2016, the undersigned issued a Report and Recommendation recommending that the plaintiff's request for injunctive relief be denied. (Doc. 35.) The District Court adopted this recommendation by Order issued on July 24, 2017. (Doc. 55.)

         On July 28, 2017, the undersigned recommended that the defendants' motion to dismiss the complaint be granted with respect to Wisniewski's Eighth Amendment claims, and that the District Court decline to exercise supplemental jurisdiction over the remaining state-law claims. (Doc. 56.) By Order issued on August 31, 2017, the District Court adopted the Report and Recommendation, dismissed the plaintiff's federal claims with prejudice, and remanded the state-law claims to the Court of Common Pleas for Huntingdon County. (Doc. 61.)

         On September 29, 2017, the plaintiff filed a Notice of Appeal, seeking review of the District Court's denial of his request for injunctive relief, and the dismissal of his federal claims. (Doc. 67.) The plaintiff's appeal is currently pending before the Third Circuit Court of Appeals at Wisniewski v. Frommer, App. Dkt. No. 17-3164.

         On December 5, 2017, the plaintiff filed a motion to unseal the documents that he had submitted in connection with the evidentiary hearing on his motion for injunctive relief. The defendants did not oppose that motion, and it was granted by Order entered on December 7, 2017. (Doc. 70.)

         On February 19, 2018, the defendants moved to unseal exhibits that they had submitted in connection with the same hearing for purposes of facilitating the briefing on the appeal that the plaintiff had filed with the Third Circuit. (Doc. 71.) Purportedly because the deadline for filing the Appendix with the Court of Appeals had already passed, the plaintiff refused to concur in this motion.

         Rather than file a brief opposing the motion, on February 19, 2018 the plaintiff filed a motion requesting an additional two weeks to prepare an opposition. (Doc. 72.) In support of that motion, the plaintiff's counsel represented that her other litigation responsibilities were too great to allow her to review the plaintiff's own medical documents that comprised the defendants' under seal exhibits. She also repeated her contention that the motion was simply untimely, as the window for amending the parties' Joint Appendix with the Third Circuit had already run. The plaintiff also expressed concern about his medical information being made part of the appellate record. (Id.) The defendants opposed this motion, maintaining that this is a straightforward matter that should never have been contested, and noting that the records in question are the plaintiff's medical records that pertain to his own medical care which is the central issue in the litigation that he elected to bring, and which he has continued to litigate on appeal. (Doc. 73.) The defendants further noted that they originally did not intend to include the exhibits as part of the Joint Appendix before the Court of Appeals, but concluded that they needed to do so in order to address “misrepresentations of fact regarding Plaintiff's treatment” that appear in the plaintiff's appeal brief. (Id.) Finally, the defendants represent that simultaneous to filing their brief, their counsel furnished plaintiff's counsel with a copy of the exhibits that the defendants intend to use on appeal, but counsel responded that she was too busy to review them at that time. (Id. at p. 2 n.1.)

         With the parties seemingly unable to resolve this issue among themselves, and cognizant of the common law presumption of public access to judicial proceedings and records, In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001), we ordered these documents unsealed. (Doc. 74.) We also endeavored to explain for all concerned ...

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