Coronavirus testing lawsuit inches toward trial, as Utah company tries to block it

Nebraska judge rules an expert may review documents to determine if they contain “trade secrets”

(Trent Nelson | The Salt Lake Tribune) COVID-19 testing at a TestUtah site in Salt Lake City on Sept. 9. Nomi Health, which is fighting release of documents in Nebraska, Iowa and Utah, administers the TestUtah program.

A coronavirus-related lawsuit filed in Nebraska that hinges on trade secrets and involves two Utah companies at the center of Utah’s response to the pandemic will proceed.

The public records lawsuit seeks information that validated a diagnostic test provided by Orem’s Nomi Health for Nebraska’s multimillion-dollar COVID-19 testing program.

The lawsuit, filed on behalf of Salt Lake Tribune board chair Paul Huntsman, seeks an unredacted copy of the validation report maintained by Nebraska Department of Health and Human Services. The report affirms the test’s process and technical aspects.

A Nebraska district judge ruled Thursday an expert witness can review the report and determine if it includes trade secrets.

Salt Lake City-based Co-Diagnostics, which is not a named party in the lawsuit, supplied the test.

Nomi Health, which partnered with Co-Diagnostics to provide the tests and is listed as an interested party in the litigation, has argued the lawsuit should be dismissed because the requested information contains trade secrets.

The lawsuit was filed against State Epidemiologist Dr. Matthew Donahue and maintains Nebraska, which released a copy of the report that was largely blacked out, has not provided proof of trade secrets that would justify redactions. At trial, which is set for Oct. 19, Nebraska state officials must prove the report includes trade secrets.

Huntsman’s team has filed similar lawsuits in Utah and Iowa.

In Utah, Gov. Spencer Cox is blocking the release of pandemic-related records, according to the complaint. The litigation in Iowa is centered on communication among state officials and their counterparts in Nebraska, Tennessee and Utah.

In his order, Nebraska District Court Judge Kevin R. McManaman said an expert witness may be called to review the validation report to determine if it includes trade secrets.

The lawsuit, which is funded by a limited liability corporation called Jittai that Huntsman started in March 2021 to obtain public records, stems from questions around Co-Diagnostics’ test results.

The tests were part of a tech-driven, publicly funded partnership between industry and government to expand testing and, eventually, vaccinations, that is known as TestUtah. Nomi received millions of dollars in taxpayer-funded contracts to run the Utah program, which was then replicated in Nebraska, Iowa and Tennessee.

The test’s accuracy has been contested since shortly after the Food and Drug Administration granted the test an emergency use authorization in April 2020. Co-Diagnostics has attracted the attention of federal authorities.

Utah state officials stopped using Co-Diagnostics’ test last summer, but Nomi is now running almost all of the TestUtah sites throughout the state, which is struggling to keep up with testing demand as the delta variant continues to surge here.

Suzette Rasmussen, a former staff attorney and chief records officer for then-Gov. Gary Herbert who is representing Jittai through her firm All Utah Law, said in an email that the lawsuit in Nebraska and other states have a common theme.

“As the COVID pandemic swept across the country, we placed trust in our elected leaders to make decisions that protected our health and safeguarded public funds,” she said. “We fear that, too often, those elected leaders instead made decisions that enriched private partners, and that those private companies fell short in delivering the products or services they promised. The hard truth is that without record access, the details of these public–private deals will never come to light.

“Even after record-access litigation is filed, companies who welcomed public funds often fight to hide the details of the deals they secured. The public should not be forced to rely on those companies’ own representations about the nature of the information they’ve kept secret.”

Robin Felder, a pathology professor at the University of Virginia, will review the validation report.

David Lopez, an attorney representing Nomi Health, said the lifesaving reliability and validity of Nomi Health’s COVID testing platforms have been confirmed numerous times. Attorneys for Nomi Health have argued that release of the report serves no public purpose.

“While the out-of-state backers of this litigation claim to be interested in the reliability of public COVID testing platforms, their lawsuit is nothing more than an attempt to misappropriate trade secrets under the guise of a public records request,” Lopez wrote via email. “Any coverage that conflates trade secret protections with accurate COVID testing would be misleading and wrong, at a time when Utahns need those tests more than ever before.”

Through a spokeswoman, the Nebraska Attorney General’s Office had no comment. Co-Diagnostics did not respond to a request for comment.

In a written statement, Huntsman, who is funding the multistate effort to release records related to the pandemic, said the court’s decision to allow an expert to inspect information that has been withheld from public view strengthens Jittai’s dedication to shed light on sensitive decisions made by elected officials and their private partners.

“Members of our communities have the right to understand how political decisions affect public health,” he said, “and taxpayers have the right to understand how public funds are spent.”

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