PA Doctor’s Act 13 Lawsuit Tossed Out, Judge Says No “Standing” by Law360, October 28, 2013, Marcellus Drilling News
U.S. District Judge A. Richard Caputo dismissed the lawsuit after concluding that damages alleged by Dr. Alfonso Rodriguez — including infringement of his First Amendment rights by preventing him from sharing information about the contents of fracking fluid with colleagues — were too speculative to allow his case to proceed. “Plaintiff does not allege that he has been in a position where he was required to agree to any sort of confidentiality agreement under the act,” Judge Caputo ruled. “Therefore, to the extent that plaintiff’s alleged injury-in-fact is an inability to exercise his First Amendment rights, he has not yet indicated that he has been prevented from engaging in any sort of communication as a result of the act. Similarly, plaintiff has failed to indicate that he has been forced to waive any of his fundamental constitutional rights.”
Rodriguez sued the head of the state’s Department of Environmental Protection and a handful of other state officials in July 2012 challenging the so-called medical gag order provision of new statewide regulations on gas drilling known as Act 13. Rodriguez — who, according to his attorney, is the go-to doctor for workers who have been exposed to fracking chemicals — claims that a provision in the law preventing him from revealing the identity of chemicals used in the fracking process violates his First and 14th amendment rights. Rodriguez said this his sworn duty as a doctor obligated him to communicate data and information gathered in the course of his practice to other physicians as a means of advancing medical science and suggested that keeping the contents of fracking fluid secret would violate his professional code of ethics. Rodriguez said that he’d treated several workers following well blowouts in the region, including one whose symptoms included low platelets, anemia, rash and acute renal failure that required extensive hemodialysis and exposure to chemotherapeutic agents. The state, however, asked Judge Caputo to dismiss the suit on arguments that the law had not prevented Rodriguez from providing medical care to any of his patients. The court agreed, finding that Rodriguez had not alleged any acceptable injury-in-fact to warrant standing in the case.
Judge Caputo also rejected claims that Rodriguez would have to take significant compliance measures under the law and that the measure created a fear of criminal prosecution. The judge found that, again, Rodriguez would have to have made a request for information under the law to be at risk of falling out of compliance. “Plaintiff would have to request information under the act to” risk civil enforcement, the judge said. “Instead, if he maintains the status quo he is not required to implement substantial and costly compliance measures, and he is not at risk of incurring civil penalties.”
Paul Rossi, an attorney representing Rodriguez, told Law360 on Thursday that Judge Caputo had ignored clear facts that established his client’s standing to challenge that law. He added that the state had no compelling interest in enacting a law protecting drilling companies from disclosing the contents of fluids used for fracking. He said he would appeal the decision to the Third Circuit. [Emphasis added]