In re: Avandia Marketing Sales Practices & Products Liability Litigation, No. 18-2259 (3d Cir. 2019)Annotate this Case
GSK's drug Avandia is indicated to treat Type II diabetes. Health insurance plans contend that GSK concealed evidence of Avandia’s cardiovascular risk, promoted Avandia as providing cardiovascular benefits, and reaped billions of dollars in profits. In 2007, an independent researcher published an article claiming that Avandia increased the risk of heart attack and cardiovascular disease. The FDA investigated, and the Senate Finance Committee released a report. Plaintiffs’ suits under the Racketeer Influenced and Corrupt Organizations Act (RICO) and state consumer protection laws became part of multi-district litigation (MDL). A protective order (PTO) covered discovery of confidential materials. GSK sought summary judgment on the consumer protection claims on preemption grounds and argued that the RICO claims should be dismissed for failing to identify a distinct RICO enterprise. The parties filed documents under seal pursuant to the PTO. Neither raised any issue as to the confidentiality of the sealed exhibits. The court granted GSK summary judgment. After the plans appealed, GSK sought to maintain the confidentiality of certain sealed documents that had been filed in connection with the summary judgment motion. The court unsealed its own summary judgment opinion but maintained the confidentiality of the remaining documents and directed GSK to file a redacted statement of undisputed material facts. The Third Circuit vacated and remanded. The district court failed to apply the presumption of public access and, instead, applied the Federal Rule of Civil Procedure 26 standard for a protective order.