Utah company says report on validity of COVID-19 tests should remain blocked from public

Open records lawsuits related to Nomi Health’s coronavirus response have also been filed in Utah and Iowa

A PDF of the first page of a lawsuit filed against Nebraska and Nomi Health.

An Orem company that received millions from taxpayer-funded contracts in Utah and four other states is fighting a lawsuit filed in Nebraska that seeks information that validated a diagnostic test at the core of the state’s coronavirus testing program, court records show.

A public records lawsuit filed in Nebraska on behalf of Salt Lake Tribune board chair Paul Huntsman seeks an unredacted copy of the validation report maintained by the Nebraska Department of Health and Human Services.

Nomi Health says such a release would reveal trade secrets.

The lawsuit, which names Dr. Matthew Donahue, the acting state epidemiologist, as the respondent and Nomi as an interested party, states Nebraska has provided no proof trade secrets are included in the report, while blacking out most of the material “including any information which would support, contradict, or otherwise explain its conclusions.”

The accuracy of tests used by TestUtah has been debated since the early days of the pandemic, when medical experts in Utah raised questions about the program’s reported positivity rates, which precipitated a change in the testing provider and lab.

Nomi formally responded to the lawsuit by saying release of the full validation report would disclose “proprietary or commercial information, which if released, would give advantage to business competitors and serve no public purpose.”

David Lopez, an attorney for Nomi, declined to comment.

In March 2021, Huntsman created the limited liability corporation Jittai, which has also filed public records lawsuits related to the coronavirus response in Utah and Iowa.

The Utah lawsuit alleges Gov. Spencer Cox is holding up the release of records related to COVID-19. A spokesperson for the Cox administration previously declined to comment, citing a policy of not speaking out on pending litigation.

In Iowa, Jittai has sought emails between state officials and their counterparts in Utah, Nebraska and Tennessee.

Nomi procured its first coronavirus contract in early April 2020 for TestUtah, a collaborative originally pitched as a tech-driven, public-minded pairing of industry and government to expand testing and, later, vaccinations. Several of Utah’s Silicon Slopes companies joined the state’s public coronavirus response.

The program was soon replicated in Iowa, Tennessee and Nebraska. Tennessee later canceled its contract amid concerns about the validity of the diagnostic tests. The tests were provided through Nomi by another Utah company, Co-Diagnostics, which has come under federal scrutiny. Co-Diagnostics did not respond to requests for comment.

Some elements of the program were also adopted in Florida, where Nomi has won more than $46.5 million in testing and vaccination contracts awarded through the governor’s office, records show.

Suzette Rasmussen, a former staff attorney and chief records officer for then-Utah Gov. Gary Herbert, is representing Huntsman’s Jittai corporation. She filed the records requests and subsequent lawsuit in Nebraska, as well as in Utah and Iowa. Andre Barry, an attorney in Lincoln, is representing Rasmussen in the Nebraska lawsuit and declined to comment.

Attorneys for Nomi Health allege that Rasmussen “represents one or more persons or entities with interests adverse to those of Nomi Health …” and that her effort to obtain the full report “is solely to serve these private interests, not for any cognizable public purpose.”

Huntsman, who is funding the multistate effort to pry loose records related to officials’ responses to the pandemic, said in an email he has no financial interest in any of the companies involved in the various states’ pandemic response, nor does The Tribune.

Amid a surging delta variant, he said, the public should have access to records that will answer significant questions about the initial coronavirus response.

Utah recently experienced its highest daily count of new cases since February, and intensive care unit beds at hospitals are again filling up.

“The public relied on and trusted government leaders to protect the public health and to lead us through this pandemic,” Huntsman said. “Release all the records, let them be scrutinized and have experts determine if Nomi and its partners were really the most qualified — as they have asserted — people to address such a serious public health crisis.”