Judge David S. Cunningham, Case Number: 23SMCV01293, Date: 2024-08-23 Tentative Ruling

Judge: David S. Cunningham, Case: 23SMCV01293, Date: 2024-08-23 Tentative Ruling

Opposing Party: International Medical Devices, Inc., et al. (collectively “Defendants”)

This is a product-defect case. The alleged product is a penis-enlargement device called Penuma. The complaint alleges that Plaintiffs underwent surgeries to implant the device. Plaintiffs claim the device did not perform as marketed and ended up injuring and disfiguring them.

On January 11, 2024, Plaintiffs filed a motion for protective order and leave to proceed under pseudonyms.

Here, Plaintiffs move to seal their declarations, which they filed in reply to the motion.

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(Cal. Rules of Court, rule 2.550(d).) “These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 9:418, emphasis in original.)

The parties’ agreement to seal documents is not enough to support a motion to seal. (Id. at ¶ 9:417.1 [“Parties sometimes operate under an informal arrangement pursuant to which documents are ‘deemed filed under seal’ unless an objection is made. Such an arrangement ‘is entirely inconsistent with the mandatory requirements of rules 2.550 and 2.551 and the constitutional values informing those requirements.’”].)

“Only the specific words of documents that constitute the sensitive material should be sealed; generally, it is not permissible to seal the entire document.” (Id. at ¶ 9:418.5.)

The Court finds that the motion to seal is moot and/or should be denied without prejudice because:

* Plaintiffs did not lodge unredacted versions of the declarations; they only submitted redacted versions. As a result, there is nothing before the Court to seal.

* Plaintiffs fail to show an overriding interest and prejudice. (See 8/23/24 Tentative Ruling Re: Motion for Protective Order and Leave to Use Pseudonyms Re: 23SMCV01293, pp. 4-6.) They have not met their burden to justify use of pseudonyms, so sealing their declarations and real names is unwarranted.

Plaintiffs’ assertion – that they lodged unredacted versions in the underlying cases prior to the cases being related and transferred to this Court – is unpersuasive and does not change the result. The Court reviewed eCourt. There is no notice of lodgment posted in any of the cases, including the lead case. Plaintiffs filed the redacted versions in the lead case on March 8, 2024. No notice of lodgment pertaining to unredacted versions is posted on that date or before or after that date, and, again, the Court does not have copies of the unredacted versions.

Last point. In case number 23SMCV02048, on July 7, 2023, Judge Mark Epstein granted John Doe 7’s motion to use a pseudonym. (See 7/7/23 Minute Order Re: 23SMCV02048, p. 1.) His ruling applied to a separate motion that predated Plaintiffs’ pending motion to use pseudonyms, and it appears that he intended the ruling to be temporary. (See ibid. [stating that “[t]he court believes that plaintiff has made that showing for now”], emphasis added.) By contrast, the record here is different and, currently, does not support use of pseudonyms by either John Doe 7 or any other Plaintiff. (See 8/23/24 Tentative Ruling Re: Motion for Protective Order and Leave to Use Pseudonyms Re: 23SMCV01293, pp. 4-6.)

Moving Party: International Medical Devices, Inc., et al. (collectively “Defendants”)

This is a product-defect case. The alleged product is a penis-enlargement device called Penuma. The complaint alleges that Plaintiffs[1] underwent surgeries to implant the device. Plaintiffs claim the device did not perform as marketed and ended up injuring and disfiguring them.

On January 11, 2024, Plaintiffs filed a motion for protective order and leave to proceed under pseudonyms.

Here, Defendants move to seal a portion of their opposition to Plaintiffs’ motion. The opposition reveals the name of one Plaintiff. Defendants seek to seal/redact the name.

The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

“Only the specific words of documents that constitute the sensitive material should be sealed; generally, it is not permissible to seal the entire document.” (Id. at ¶ 9:418.5.)

The Court finds that the motion to seal is moot and/or should be denied without prejudice. As explained in the tentative ruling on Plaintiffs’ motion, the request for leave to use pseudonyms is denied because Plaintiffs fail to demonstrate an overriding interest and prejudice. (See 8/23/24 Tentative Ruling Re: Motion for Protective Order and Leave to Use Pseudonyms, pp. 4-6.) Given the denial, there is no basis for sealing/redacting the name revealed in Defendants’ opposition. Also, the Plaintiff already disclosed his name online. (See Motion to Seal, p. 3; see also Opposition Re: Motion for Protective Order and Leave to Use Pseudonyms, pp. 15-16.) Consequently, rule 2.550(d) is unsatisfied, and the request to seal/redact is unjustified.

Tentative Ruling Re: Motion for Protective Order and Leave to Use Pseudonyms

Opposing Party: International Medical Devices, Inc., et al. (collectively “Defendants”)

* granted as to Plaintiffs’ addresses and contact information, Social Security numbers, and medical-related records, photos, and videos.

* denied without prejudice as to Plaintiffs’ employment-related identifying information – e.g., job positions.

Here, Plaintiffs request a protective order and leave to use pseudonyms in place of their real names.

Plaintiffs’ request for a protective order is granted in part and denied without prejudice in part.

The request is granted as to Plaintiffs’ addresses and contact information, Social Security numbers, and medical-related records, photos, and videos. It is routine to protect these kinds of information from public disclosure.

The request is denied without prejudice as to Plaintiffs’ real names. Plaintiffs fail to show exceptional circumstances and an overriding interest warranting pseudonyms.

The request is denied without prejudice as to Plaintiffs’ employment-related identifying information – e.g., job positions. Some Plaintiffs suggest that they have security clearances and work in jobs that necessitate confidentiality. (See, e.g., Doe 1 Decl., ¶¶ 5 “I am employed as a - redacted - for the - redacted - in the - redacted – Office”], 6 [“I hold a - redacted - clearance and must maintain a low profile with respect to any public exposure”]; see also, e.g., Doe 2 Decl., ¶¶ 5 [“I am considered - redacted- within a private contractor serving both -redacted- and - redacted-“], 6 [“The nature of operational security and eligibility (clearances) in my field of work dictates I must keep my name out of the public arena for both operational and practical reasons as well as the safety of my family and myself”], 7 [“It is not possible for me to continue my role - redacted if I develop any sort of public exposure due to this litigation”], 8 [“In particular, I am currently in consideration for a role as a - redacted - - redacted - which mandates that I maintain the utmost discretion and avoid public exposure”].) The current record, which only consists of redacted versions of the declarations, fails to support a protective order at this time.

“Filing a complaint as a ‘Doe’ impairs the public’s right of access to court records [citations]. It also violates the statutory requirement that a complaint include ‘names of all the parties’ [citation]. Therefore, plaintiffs are not permitted to use fictitious names (e.g., ‘John Doe’ or ‘Jane Doe’) absent ‘exceptional circumstances.’ [Citations.]” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 2:136.5.)

“A court may permit [a] plaintiff to proceed under a fictitious name when exceptional circumstances justify protecting [the] plaintiff's true identity[.]” (Id. at ¶ 2:136.6, emphasis in original.) Examples of exceptional circumstances include:

* “matters of a highly sensitive and personal nature (e.g., prior criminal history, HIV-positive status, victim of sexual assault) [citation]” (ibid.); or

* “a real danger of physical or mental harm to plaintiff or others” (ibid.); or

* “where the injury sought to be avoided by the complaint (e.g., invasion of plaintiff’s privacy) would be incurred by disclosure of plaintiff’s identity. [Citation.]” (Ibid.)

“The test for whether a party can be permitted to use a pseudonym has also been termed the ‘overriding interest test’ – the same used for sealing requests[.]” (Ibid.). “A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.” (Department of Fair Employment and Housing v. Superior Court (2022) 82 Cal.App.5^th 105, 111.)

“In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’” (Id. at 111-112.)[1]

Plaintiffs do not cite a statute permitting anonymity for claims arising from elective medical procedures; nevertheless, they contend the motion should be granted. Plaintiffs state:

This litigation will require the disclosure of intensely personal and stigmatizing sexual information about Plaintiffs’ penises, including the horrible deformations and injuries inflicted by Defendants’ product. Even if the highly sensitive photographs of Plaintiffs’ penises and the medical records of their numerous surgeries are sealed, absent pseudonyms, Plaintiffs will still be identified publicly as men who desired larger penises, had a device surgically implanted to achieve this, and whose penises were severely damaged as a result. Plaintiffs reasonably fear embarrassment, humiliation, and stigma merely from having these facts be publicly known. Anyone – a friend, relative, neighbor, coworker, or boss – could learn these things about a Plaintiff at any time. Plaintiffs’ personal and professional prospects could be permanently diminished by this information becoming widely disseminated. Their mental and emotional health could suffer as a result. This is precisely the sort of exceptional, “highly sensitive and personal” matter California courts envision for allowing fictitious names.

(Motion, p. 10; see also Reply [claiming Plaintiffs fear retaliation and “will suffer [p]sychological and [p]rofessional harm”], emphasis deleted.)

In response, Defendants assert that Plaintiffs failed to submit – and cite – supporting evidence (see Opposition, pp. 10-11), elective-implant claims do not satisfy the exceptional-circumstances requirement (see id. at pp. 11-14), and embarrassment is insufficient to meet Plaintiffs’ burden of proof. (See id. at pp. 14-15.)

The Court agrees with Defendants’ first point. Plaintiffs did not submit – or cite – evidence in support of their moving brief. Plaintiffs filed the motion on January 11, 2024. Defendants filed their opposition on February 27^th. Plaintiffs did not submit their declarations until March 8^th when they filed their reply and motion to seal. It is inappropriate to file evidence for the first time in reply.

Defendants’ second point is persuasive. Plaintiffs fail to cite a case upholding use of pseudonyms in a penis-enlargement case. By contrast, Defendants represent that the federal class actions “regarding these same Penuma implants are proceeding” with the complainants’ true names and that prior actions involving penile implants were litigated without pseudonyms. (Id. at pp. 13-14; see also Grimaldi Decl., Exs. 2, 3 [attaching complaints].) Moreover, the Court’s own research turned up a federal opinion where a district court prohibited anonymity in a breast-implant case. (See In re Allergan BIOCELL Textured Breast Implant Products Liability Litigation (D. N.J. Aug. 13, 2020, No. 19-MD-2921 (BRM) (JAD)) 2020 WL 4745558; see also Opposition, p. 13 [citing two Los Angeles Superior Court breast-implant actions filed under the plaintiffs’ real names].) Breast implants and penile implants are analogous. Another analogous case is Doe v. Fedcap Rehabilitation Services, Inc. (S.D.N.Y. Apr. 27, 2018, No. 17-CV-8220 (JPO)) 2018 WL 2021588. There, a transgender person sued a former employer for gender discrimination and harassment. The district court found that the case could not be litigated under a pseudonym despite the highly personal nature of the plaintiff’s transgender identity and the risk of future discrimination and trauma. (See Doe, supra, 2018 WL 2021588, at *2-*3.)[2] All of these factors tip the scale to Defendants’ side.

And Plaintiffs’ cases fail to change the result. Those courts considered distinguishable plaintiffs, facts, and issues. Indeed, most of the courts did not analyze the pseudonym question. (See Jane Doe 8015 v. Superior Court (2007) 148Cal.App.4^th 489 [whether petitioners in a coordinated action, which included an HIV plaintiff, could file a peremptory challenge after a successful challenge to summary judgment on appeal]; see also Johnson v. Superior Court (2000) 80 Cal.App.4^th 1050 [whether an anonymous sperm donor with kidney disease could be compelled to sit for a deposition]; Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4^th 556 [whether an adult who had been sexually abused as a minor could rely on equitable estoppel to file a late tort claim against the defendant school district]; Doe v. City of Los Angeles (2007) 42 Cal.4^th 531 [whether victims of childhood sexual assault by a police officer alleged facts sufficient to satisfy Code of Civil Procedure section 340.1’s extended statute of limitations]; Doe v. Saenz (2006) 140 Cal.App.4^th 960 [whether felons convicted of occupied burglary could seek an exemption to work in a licensed community-care facility]; Hooper v. Deukmejian (1981) 122 Cal.App.3d 987 [whether legislation that barred further punishment following completed sentences for marijuana-related offenses applied to people convicted of maintaining places for use or sale of narcotics]; Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4^th 758 [whether defendants waived the right to contest the plaintiff’s pseudonym in light of their failure to brief the issue]; Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4^th 1436 [whether defendant improperly asked job applicants to disclose marijuana convictions that were more than two years old].)[3]

Defendants’ third point is also persuasive. Plastic surgery is common in Los Angeles County. It is always possible that a botched surgery could cause the patient to be embarrassed. The Court agrees with Defendants that, if Plaintiffs’ position were accepted, the general rule against pseudonyms would be swallowed in virtually all botched-surgery actions. The better approach is to find embarrassment and uncomfortableness inadequate. They are not enough in breast-implant and trans-identity cases, so they should not be enough in this case as well.

For these reasons, the Court finds that Plaintiffs fail to establish an overriding interest.

Also, because Plaintiffs fail to establish an overriding interest, the Court does not need to decide whether the overriding interest would be prejudiced.

As a matter of guidance, though, the Court notes that Plaintiffs do not demonstrate prejudice. Again, they did not submit evidence with the moving brief, and their declarations cannot be submitted for the first time in reply. Regardless, the declarations are conclusory and speculative. Plaintiffs did not lodge unredacted versions of the declarations; they only submitted redacted versions. The redacted versions are nearly identical, lack details, and mostly state conclusions. (See Doe 1 Decl., ¶ 4 [“Public disclosure of my identity in this proceeding would likely result in serious and credible danger to me as well as the embarrassment, humiliation, and derogatory comments and views resulting from disclosure of such highly personal information”]; see also Doe 2 Decl., ¶ 4 [“Public disclosure of my identity in this proceeding would likely result in my inability to continue the path of serving in my profession”]; Doe 3 Decl., ¶¶ 8 [“Public disclosure of my identity in this proceeding would likely result in embarrassment, humiliation, and stigma given the nature of this sensitive and highly personal information”], 11 [“[P]ublic disclosure of my identity in this proceeding would have a damaging effect upon my family well-being”]; Doe 4 Decl., ¶ 9 [“Public disclosure of my identity in this proceeding would likely result in embarrassment, humiliation, and stigma given the nature of this sensitive and highly personal information”]; Doe 5 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to my professional career as well as the embarrassment, humiliation, and derogatory comments and views resulting from disclosure of such highly personal and sensitive information”]; Doe 6 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me as well as the embarrassment, humiliation, and derogatory comments and views resulting from disclosure of such highly personal and sensitive information”]; Doe 7 Decl., ¶¶ 6 [“Protecting my identity from being connected publicly through the internet, court website, or otherwise, to this litigation is critically important to me given the deeply personal and confidential nature of this medical information”], 7 [“Public disclosure of my identity in this proceeding would likely result in embarrassment, humiliation, and serious emotional injury beyond that which I am currently experiencing from the failed and defective Penuma implant”]; Doe 8 Decl., ¶¶ 6 [“I am the primary custodial parent to (REDACTED) and it would be terrifying to me to think that they, their friends, or others could access such information about me on the internet or through a court website”], 7 [“Moreover, in my professional career I am involved in the marketing of (REDACTED) enhancement products and it would be very disturbing and damaging to my career for my experience with the Penuma product to be available online”], 8 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to my family and my professional career”]; Doe 9 Decl., ¶¶ 6 [“Public disclosure of my identity in conjunction with this lawsuit along with the highly sensitive and personal medical records and photographs would be very embarrassing, disturbing, and damaging to my professional career”], 9 [“Losing my anonymity would have a tremendously damaging impact on my career and reputation as a (redacted) which I have developed since I started working in the industry in (redacted)”], 10 [“As a result of my very visible professional career over the past decades, the damage that public disclosure of my identity as part of this action would bring is far more devastating than the embarrassment, humiliation, and derogatory comments that might typically be expected from disclosure of such highly personal and sensitive information”]; Doe 10 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as the embarrassment, humiliation, and derogatory comments and views resulting from disclosure of such highly personal and sensitive information”]; Doe 11 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as embarrassment, humiliation, and derogatory comments and views resulting from the disclosure of such highly personal and sensitive information[,]” and “I fear public disclosure could also result in retaliatory action from the doctor who performed my surgery”]; Doe 12 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as embarrassment, humiliation, and derogatory comments and views resulting from the disclosure of such highly personal and sensitive information”]; Doe 13 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as embarrassment, humiliation, and derogatory comments and views resulting from the disclosure of such highly personal and sensitive information”]; Doe 14 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as embarrassment, humiliation, and derogatory comments and views resulting from the disclosure of such highly personal and sensitive information”]; Doe 15 Decl., ¶ 5 [“Public disclosure of my identity in this proceeding would likely result in serious and credible damage to me and my family as well as embarrassment, humiliation, and derogatory comments and views resulting from the disclosure of such highly personal and sensitive information”].)

Consequently, the Court denies Plaintiffs’ request to utilize pseudonyms. The denial is without prejudice.

[1] The Ninth Circuit instructs district courts to evaluate the following factors:

(1) the severity of the threatened harm [citation]; (2) the reasonableness of the anonymous partys fears [citation]; and (3) the anonymous party’s vulnerability to such retaliation [citations]. The court must also determine the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice. [Citation.] Finally, the court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities. [Citation.]

(Does 1 thru XXIII v. Advanced Textile Corp. (9^th Cir. 2000) 214 F.3d 1058, 1068-1069; see also id. at 1068 [noting that federal courts “permit[] plaintiffs to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm [citations]; (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature” [citations]; and (3) when the anonymous party is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution” [citations].)

[2] Plaintiffs might try to claim Doe is distinguishable since the plaintiff’s real name had previously appeared in a news story in which the plaintiff disclosed being genderqueer. (See id. at *3.) The Court disagrees. The news story did not disclose the separate fact that the plaintiff also identified as trans-masculine. While the judge factored the consensual genderqueer disclosure into his analysis, he still had to determine whether a pseudonym should be allowed to prevent the additional, nonconsensual disclosure of the plaintiff’s trans-masculine identity. The determination involved accounting for the inevitability that numerous sensitive details would be disclosed in the lawsuit that were not disclosed in the news story. Ultimately, the judge found the discomfort and risks to the plaintiff insufficient. (See id. at *2-*3.)

[3] Plaintiffs’ citation to Civil Code section 1708.85 pertaining to revenge-porn scenarios is unavailing. Plaintiffs’ claims are product-defect claims. There is no revenge-porn allegation, nor is there evidence of a credible threat.