DOE v. LUKETICH

[[COURTLISTENER_SUBOPINION {"id":"10417466","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                        
           FOR THE WESTERN DISTRICT OF PENNSYLVANIA                      

UNITED STATES OF AMERICA,         )                                      
ex rel., JOHN DOE,                )    Civil Action No. 19-495           
                                  )                                      
                 Plaintiff,       )                                      
                                  )    Judge Cathy Bissoon               
       v.                         )                                      
                                  )                                      
DR. JAMES D. LUKETICH,            )                                      
UNIVERSITY OF PITTSBURGH          )                                      
MEDICAL CENTER, AND               )                                      
UNIVERSITY OF PITTSBURGH          )                                      
PHYSICIANS,                       )                                      
                                  )                                      

                                  )                                      
                 Defendants.                                             

                    MEMORANDUM AND ORDER                                 

                      I.  MEMORANDUM                                     
    On December 1, 2021, the Court directed Defendants to show cause as to why all the 
information in the Intervenor Complaint and the Omnibus Response in Opposition previously 
sealed or redacted should not be unsealed/unredacted under the Court of Appeals for the Third 
Circuit (“Third Circuit”)’s ruling in In re Avandia Marketing Sales Practices & Products 
Liability Litig.,
924 F.3d 662
(3d Cir. 2019), and whether the First Amendment right of public 
access attaches, and if so, whether the redactions survive under that standard.  UPMC and UPP 
Defendants (“UPMC Defendants”) responded as ordered on December 10, 2021.  UPMC 
Defendants’ Response to the Court’s Order to Show Cause (hereinafter, “Response”) (Doc. 
103).1  For the reasons below, the Court finds that UPMC Defendants have failed to show good 

1 The Court notes that while the Order to Show Cause was directed towards “Defendants,” the 
only defendants who were required to respond were the UPMC and UPP Defendants, as the 
materials in question were most relevant to them.  As such, the Court notes that Defendant 
Luketich need not have responded and indeed, did not respond.             
cause as to why all the information previously redacted/under seal should remain redacted/under 
seal.                                                                     
 A.  Legal Standard                                                      

    In order for information to be sealed in a civil case, where the information is a judicial 
record, the party seeking confidentiality must overcome the common law right of access, and if 
applicable, the First Amendment right of public access.  Under the framework set in In re 
Avandia Marketing Sales Practices & Products Liability Litigation, “[o]nce a document becomes 
a judicial record, a presumption of access attaches.”
924 F.3d at 672
(internal citations omitted).  
There is a presumptive right of public access to judicial records.
Id.
(internal quotations and 
citations omitted).  The party seeking to seal information bears the burden of overcoming this 
presumption and show “that the material is the kind of information that courts will protect and 
that disclosure will work a clearly defined and serious injury to the party seeking closure.”
Id.
(internal citations omitted).  When finding that judicial records should be closed from the public, 

the Court must articulate “the compelling, countervailing interests to be protected,” “make 
specific findings on the record concerning the effects of disclosure” and “provide an opportunity 
for interested third parties to be heard” in order to overcome the common law right of access.
Id. 
at 672-73
(internal quotations and citations omitted).  To make such a finding, “specificity is 
essential” and “[b]road allegations of harm, bereft of specific examples or articulated reasoning, 
are insufficient.”
Id.
B.  UPMC Defendants’ Arguments                                          
    At present, UPMC Defendants concede that paragraphs 129, 135, 144 of the Intervenor 
Complaint (Doc. 66) should be unsealed/unredacted, along with the corresponding references in 

the Omnibus Response (Doc. 94).  Response at 10-11.  The Court agrees and orders that these 
redactions be removed.                                                    
    As to the remaining redactions, UPMC Defendants argue that paragraphs 139-142 must 
remain redacted and sealed because these allegations derive from peer review protected materials   
Response at 4-10.  Peer review is “the procedure for evaluation by professional health care 

providers of the quality and efficiency of services ordered or performed by other professional 
health care providers” and the confidentiality in that process is protected in Pennsylvania under 
the Peer Review Protection Act (“PRPA”).  63 Pa. Stat. Ann. § 425.1 et. seq.  This statute 
protects the confidentiality of the proceedings and records of a review committee.  63 Pa. Stat. 
Ann. §425.4; Response at 4-5.  UPMC Defendants aver that this protection exists to encourage 
candor in the peer review process, which in turn helps maintain high professional standards in 
the medical field to provide safe and effective medical care to the general public.  Response at 5.  
The Pennsylvania Supreme Court recently held hospital committees that perform a “peer-review 
function” deserve PRPA confidentiality protections and reaffirmed the importance of the 
protections of the PRPA and the candor necessary to that process.  Leadbitter v. Keystone 

Anesthesia Consultants, Ltd.,
256 A.3d 1164
(Pa. 2021).  In its decision, it also highlighted the 
purpose of the PRPA: “[t]he enactment stems from the dual observations that: the practice of 
medicine is highly complex and, as such, the medical profession is in the best position to police 
itself… and, the profession’s self-regulation is accomplished, at least in part, through a peer-
review mechanism undertaken to determine whether a particular physician should be given 
clinical privileges to perform a certain type of medical activity at a hospital.”
Id. at 1164
, 1168–
69 (internal citations omitted).                                          
    UPMC Defendants explain the relevant peer review procedures and processes implicated 
in the information it seeks to protect, supporting these assertions through the Declaration of 
Chatón T. Turner, Esq., Senior Associate Counsel and Vice President of Risk 
Management/Disabilities Services (“Declaration”) (Doc. 103-1).  One such process is the 
Professional Practice Evaluation Committee (“PPEC”), which evaluates care provided by 
practitioners to provide “constructive feedback, education and performance improvement 

assistance” with respect to its “quality, appropriateness, and safety.”  Response at 6-7; 
Declaration at ¶ 8.  The Professional Practice Evaluation Policy (“Policy”) guides the PPEC, and 
also contemplates other committees, including “specialist committees, division and section 
committees,” among others.  Declaration at ¶ 9.  UPMC Defendants aver that “participants in a 
peer review process expect that the hospital where they have privileges and/or their employer 
will maintain the confidentiality of their participation in that process.”  Response at 7; 
Declaration at ¶ 11.  The expectation of confidentiality encourages candid participation by the 
review committee.
Id.
UPMC Defendants aver that without an expectation of confidentiality, 
the review process would not work as designed, and thereby harm the quality of health care 
provided.
Id.
UPMC Defendants also aver that public disclosure would “threaten stakeholder 

confidence, including patients and their families, in UPMC-affiliated hospitals’ peer review 
process, and damage UPMC and UPP’s standing among current and prospective employees who 
rely on UPMC and UPP to protect the confidentiality of such processes.”  Response at 7; 
Declaration at ¶ 12.                                                      
    UPMC Defendants also have provided arguments, redaction by redaction, as necessitated 
by Avandia.
924 F.3d 662 at 677, 680
.                                    
     i.  Paragraphs 139-140 of the Intervenor Complaint (excerpts from UPMC-
        CIDEm_00012790-12796)                                            
    UPMC Defendants have provided UPMC-CIDEm_00012790-12796 to the Court for in 
camera review.  Response at 8.  UPMC Defendants aver that this email thread addresses how to 
remediate “a potential patient safety concern,” and that the participants in the email, including 
the redacted portions, were members of the Hospital Quality Patient Care, UPMC Quality Patient 
Care, and Patient Safety Committees during the relevant period.
Id.
UPMC Defendants have 

indicated that “[p]eer review takes many forms and is not limited to a time or place,” and that 
due to busy physical schedules, peer review discussions may “be decentralized,” and “occur by 
e-mail or telephone.”  Declaration at ¶ 6.  UPMC Defendants argue that maintaining the 
confidentiality of this exchange is integral to the peer review process.  Response at 9.  Moreover, 
UPMC Defendants indicate that this information is best kept protected because “public 
disclosure would subject the peer review process to critique by non-medical professionals, 
compromising the ability of health care providers to best determine how to ameliorate any 
practice concern,” and argue that the statements quoted by the Government in the Intervenor 
Complaint in Paragraphs 139-140 are “wholly unnecessary to the Government’s attempt to state 
a claim for billing fraud” and “will not advance the public’s ability to understand that claim.”
Id.
Last, UPMC Defendants notes that the Government has the document and may use it to pursue 
its claims, and thus keeping the quoted portions of this document under seal is sufficiently 
tailored to protect UPMC’s peer review process.
Id.
ii.  Paragraphs 141-142 of the Intervenor Complaint (excerpts from UPMC-CID-
        Em_00011313 and UPMC-CIDEm_00011337)                             
    UPMC Defendants have provided UPMC-CID-Em_00011313 and UPMC-         
CIDEm_00011337 to the Court for in camera review.  Response at 10.  In Paragraph 141, the 
Government quotes from a summary of a Risk Master incident report prepared by the PPEC, a 
review committee, and documented in draft and final recommendation letters prepared in 
connection with its review of the incident, which are the two documents identified above.  
Response at 9-10.  In Paragraph 142, the Government quotes from these draft and final letters.  
Response at 10.  UPMC Defendants argue that these paragraphs contain the records of the 
PPEC’s peer review protected proceedings, which are protected under the PRPA.
Id.
The 

UPMC Defendants argue that maintaining the confidentiality of this exchange is integral to the 
peer review process, and that the excerpts in question should be protected under the standards set 
forth in Avandia, for the same reasons given for the protection of Paragraphs 139-140.
Id.
In sum, the UPMC Defendants have attempted to show that, for each of the four 
remaining subjects of redaction, there is another countervailing interest that overcomes the 
common law presumption of access to judicial records.2  That countervailing public interest is 
the importance of protecting confidentiality in the peer review process, which is designed to 
encourage candor specifically to ensure quality patient care and physician practices, essential to 
the protection of the general public.  Response at 7.  UPMC Defendants also argue that public 
disclosure of peer review materials will harm them—that it will “threaten stakeholder 

confidence, including patients and their families, in UPMC-affiliated hospitals’ peer review 
process, and damage UPMC and UPP’s standing among current and prospective employees who 
rely on UPMC and UPP to protect the confidentiality of such processes” and “compris[e] their 
ability to monitor patient care and evaluate and manage physicians.”
Id.
2 The UPMC Defendants have also made arguments regarding the First Amendment right of 
public access.  Because the Court will find that the common law right is sufficient to permit 
access to judicial records in this case, it will not address the First Amendment right.  See 
Avandia,
924 F.3d at 680
(“Although the constitutional issue is an interesting one, we again 
decline to define the parameters of the First Amendment right in a case where the common law 
right affords sufficient protection.”).                                   
 C.  UPMC Defendants’ Arguments Do Not Overcome the Presumption of Access 
    The Court finds that UPMC Defendants’ arguments are not compelling.  The main 
countervailing interest identified is protection of the peer review process.  Yet, it is precisely 
when mechanisms within the medical field fail (as alleged here) that outside evaluation of the 

peer review process is needed.  Moreover, the Court is not convinced that the peer review 
process writ large is harmed by the limited disclosure at issue here, where peer review is a part of 
the judicial record and the object of public scrutiny in a case such as this one.  To the extent 
UPMC Defendants have reputational concerns due to the public airing of selected portions of 
their peer review process, mere harm to reputation broadly speaking is not enough to outweigh 
the strong presumption in favor of access to judicial records.            
    Based on the Court’s research, the Court recognizes that the Third Circuit has not yet 
considered the issue of access to judicial records vis-à-vis information potentially protected by 
peer review privilege.  Perhaps because of this, UPMC Defendants’ arguments regarding the 
importance of the peer review process essentially revolve around the fact that under 

Pennsylvania law, peer review privilege is recognized under the PRPA.  And insofar as the Court 
can follow, is using that as evidence to attempt to show that peer review materials are the type of 
information that courts should protect under seal.  However, there are serious gaps in this 
reasoning.  Not only is Pennsylvania law not applicable here, but privilege is also largely 
irrelevant.  Issues of privilege relate to discovery and the production of documents, not the 
sealing of judicial records.  As such, whether or not a privilege exists or applies is not the 
relevant inquiry.                                                         
    To the extent UPMC Defendants are attempting to argue that privilege law may be 
applicable for analogy purposes, to illustrate the potential importance of confidentiality in this 
context, that argument also fails.  In matters of discovery, federal privilege law is used for cases 
involving mixed federal and state law claims before a federal court, not state law.  Pearson v. 
Miller,
211 F.3d 57
(3d Cir. 2000).  There is no federal statute concerning peer review privilege, 
and courts in this Circuit do not recognize peer review privilege.  See Weiss ex rel. Est. of Weiss 

v. Cty. of Chester,
231 F.R.D. 202, 205
(E.D. Pa. 2005) (peer review privilege does not exist in 
federal common law); n.12 (rejecting argument that the Health Care Quality Improvement Act of 
1986 creates a peer review privilege); Crawford v. Corizon Health, Inc.,
2018 WL 1863022
, at 
*1 (W.D. Pa. Apr. 18, 2018) (discussing Weiss: “the Court declined to extend the state statutory 
Peer Review privilege into federal common law, finding that the Third Circuit disfavors 
privilege, and that the U.S. Congress has considered, but declined to extend, a similar peer-
review privilege to federal courts.”); In re Grand Jury,
103 F.3d 1140, 1157
(3d Cir. 1997) (“In 
short, if a new privilege is deemed worthy of recognition, the wiser course in our opinion is to 
leave the adoption of such a privilege to Congress.”).  To extrapolate more broadly—though 
UPMC Defendants have not raised this argument—the Court notes that the Third Circuit also has 

not recognized a self-critical analysis privilege.  See Alaska Elec. Pension Fund v. Pharmacia 
Corp.,
554 F.3d 342 n.12
(3d Cir. 2009) (“The self-critical analysis privilege has never been 
recognized by this Circuit and we see no reason to recognize it now.”).  Self-critical analysis 
privilege is the protection of an organization’s own efforts to evaluate its performance for self-
improvement purposes—of which peer review privilege could be considered a subset.   
     Critically, the Court also fails to see how Pennsylvania’s privilege law is directly 
relevant under the Avandia standard—if anything, privilege may come into play in terms of 
courts evaluating and adopting protective orders, but the Third Circuit has made clear in Avandia 
that when it comes to analyzing the sealing of judicial records, the standard for protective orders 
is not the appropriate standard.
924 F.3d at 676
(“Unlike the Rule 26 standard, the common law 
right of access begins with a thumb on the scale in favor of openness—the strong presumption of 
public access”).  As such, any reliance on the parties’ confidentiality agreement also is beside the 
point.  Response at 9.                                                    

    Turning to UPMC Defendants’ public policy arguments, UPMC Defendants focus on a 
possible chilling effect to the candor necessary to the peer review process as a countervailing 
interest necessitating the sealing of peer review documents.  Response at 6-7.  UPMC 
Defendants cite two cases in support of the proposition that peer review materials are the kind of 
information that is routinely protected by courts because confidentiality is important to the peer 
review process, but the cases cited are not binding on this Court and do not coexist with the 
Third Circuit’s decision in Avandia.  Id. at 6.                           
    UPMC Defendants argue also that the exposure of the peer review process would shake 
stakeholder trust in the UPMC’s peer review process.  Id. at 7.  However, in Avandia, the Third 
Circuit rejected purported harm to a company’s competitive standing as a valid reason for 

sealing, when the harm was essentially mere embarrassment.
924 F.3d 662 at 679
.  Companies 
and individuals are sued in federal court every day.  Many of those claims and the discovery 
underlying those claims necessarily tarnish the reputations of those entities.  Such is the nature of 
litigation.                                                               
    Simply put, UPMC Defendants’ arguments fail to outweigh the public’s right of access, 
beyond broad conclusory allegations of harm.  See Avandia,
924 F.3d at 673
(“Broad allegations 
of harm, bereft of specific examples or articulated reasoning, are insufficient.”) (internal citations 
omitted).  The disclosure of the four redactions does not destroy the confidentiality of their peer 
review process as a whole, because as UPMC Defendants point out, peer review is still well-
protected by state law for most actions that would otherwise expose peer review materials.   
    If that were not enough, the Court is skeptical that the information UPMC attempts to 
shield from the public is even of the kind protected by Pennsylvania law.  Paragraphs 139-140 
discuss individuals’ ideas and perceptions regarding managing Dr. Luketich, rather than a candid 

evaluation of the care he is providing.  Paragraph 141 relays factual information regarding a 
particular incident report regarding simultaneous surgeries where Dr. Luketich was not able to be 
located.3  Paragraph 142 discusses a plan created in an attempt to monitor Dr. Luketich.  These 
redactions are akin to wholly discoverable communications regarding the performance of an 
employee that could happen in any field, for any job—that Dr. Luketich is medical provider does 
not magically transform the nature of the content.                        
    In sum, despite UPMC Defendants’ arguments to the contrary, they have not offered a 
compelling interest for these redactions, and they have failed to overcome the presumption of 
public access to judicial records.                                        











3 To be clear, to the extent disclosure of any information would implicate privacy or HIPAA 
concerns of third parties or patients, the Court will take these considerations seriously.  This does 
not implicate such concerns.                                              
                           II.  ORDER                                    
    Consistent with the foregoing, the Court finds that the UPMC Defendants have not shown 
good cause as to why its proposed redactions should remain under seal, namely Paragraphs 139-
142 of the Intervenor Complaint.   The Court also orders that the other redactions originally 
applied which UPMC Defendants concede should no longer be redacted, namely Paragraphs 129, 

135, and 144, be removed.                                                 
    The Government shall refile versions of previously redacted documents filed (namely, the 
redated versions of the Intervenor Complaint (Doc. 66) and the Omnibus Response (Doc. 94)) 
with redactions removed consistent with the Court’s findings on or before March 14, 2022.   
    IT IS SO ORDERED.                                                    

March 7, 2022                      s\Cathy Bissoon                        
                                  Cathy Bissoon                          
                                  United States District Judge           


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