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COA panel to consider public access

January 1, 2008
A three-judge Indiana Court of Appeals panel wants to know why parties have not submitted what it calls "a meaningful public access set of briefs" related to product-liability claims against Indianapolis-based Guidant Corp.

The state's second highest appellate court has a public hearing scheduled for 11 a.m. March 25 in Allianz Insurance Co., et al. v. Guidant Corp., et al., No. 49A05-0704-CV-216, where judges will consider the balance of public interest for access with the need for restricting access relating to the Marion County case.

According to one of the attorneys representing Guidant, the case goes back to product-liability claims on an implantable device to treat life-threatening abdominal aortic aneurysms. The appellate court last year consolidated more than one issue into this appeal and ordered the parties to submit two sets of briefs: a public access set and another confidential set that would remain sealed and only accessible to the judges and the attorneys involved.

A trial judge had granted partial summary judgment for Guidant relating to the duty to defend, and that is the main issue on appeal, attorney George Plews said. He said when insurers first filed briefs in the case, briefs lacked any substantive information and did not include much more than a table of contents and applicable caselaw. Guidant followed suit when filing its own briefs, he said. The parties were complying with a protective order issued by the trial judge against releasing certain information in the product-liability case, Plews said.

But the motion panel's July 17, 2007, order wasn't followed concerning the public briefs, and now the parties must show cause as to why sanctions shouldn't be imposed for failing to comply. The court is also now directing the parties to the Indiana Supreme Court ruling in Palmer v. Comprehensive Neurologic Services, P.C., et al., No 32A01-0512-CV-553, from June 27, 2007, which states "as a general proposition, court records are accessible to the public unless excluded from public access by a provision of Rule 9(g)(2)."

Plews said they didn't intend to make the court unhappy and were complying with instructions from the court. Attorneys listed for Allianz in the case - Brian Paul in Indianapolis and Lazar Raynal in Chicago - could not be reached for comment today.

The panel hearing Tuesday's arguments is Chief Judge John Baker, and Judges Patricia Riley and Melissa May. Arguments will be in the Indiana Supreme Court courtroom.
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