In Non-precedential Case, Third Circuit Affirms Fracking Trade Secrets Trump Physician’s Right to Know, Absent Actual Harm

April 13, 2015

Author: Kathleen D. Wilkinson

Fracking in Pennsylvania continues to create work for the courts. On March 16, 2015, in a non-precedential opinion in Rodriguez v. Secretary of Pennsylvania Environmental Protection of PA et al., the Third Circuit issued a ruling concerning whether a Pennsylvania doctor had standing to challenge the provisions of Act 13, a major overhaul of Pennsylvania's oil and gas law, which governs activities of those involved in fracking in Pennsylvania. Dr. Alfonso Rodriguez sued the Pennsylvania Attorney General and the Secretary of the Pennsylvania Department of Environmental Protection, challenging the constitutionality of section 3222 of the Act. This section provided two ways health professionals could learn proprietary information about chemicals used in fracking: (1) in a specific medical emergency or (2) if a health official signs a confidentiality agreement and provides a written statement of need for the information to diagnose or treat.

Dr. Rodriguez’s lawsuit attacks sections 3222.1(b)(10) and (11) of Pennsylvania’s Act 13, which governs multiple aspects of oil and gas activities under Pennsylvania law. Those provisions provide a means for the medical community to receive from participants in the oil and gas industry certain proprietary information when needed for medical treatment. Specifically, under this statute, in the event of a medical emergency involving fracking fluid, a vendor, operator or service company, must disclose the chemicals present in those materials to a patient’s doctor to assist with treatment, even if they would otherwise be protected trade secrets, so long as the physician will agree to a confidentiality order, if requested.

NOTE: The specific provisions of Act 13 state:
A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:(i) The information is needed for the purpose of diagnosis or treatment of an individual.(ii) The individual being diagnosed or treated may have been exposed to a hazardous chemical.(iii) Knowledge of information will assist in the diagnosis or treatment of an individual. 58 Pa. Cons. Stat. Ann. Section 3222.1(b)(10).

Lower Court Decision
Dr. Rodriguez, a nephrologist in an area of Pennsylvania in which fracking occurs and wastewater ponds of fracking fluids are located, alleged that direct or indirect contact with fracking fluid can cause negative medical conditions. Therefore, to provide proper treatment, Rodriguez alleged that he needed to have this information, wanted to publicize any threat to public health and safety derived from this information, and therefore would not sign any confidentiality agreement required by Act 13. The district court dismissed the initial complaint and an amended complaint.

Third Circuit Decision
The Third Circuit affirmed the district court’s decision because there was no allegation of an injury in fact and therefore Rodriquez lacked standing. The Third Circuit rejected as insufficient the plaintiff’s intention to prove standing through expert witness testimony that he would be unable to properly treat his patients and faced a threat of civil liability as a result.

The Third Circuit also dealt with the plaintiff’s reliance on the Pennsylvania Supreme Court decision in Robinson Township v. Commonwealth of Pennsylvania, 83 A.3D 902 (Pa. 2013). The plaintiff argued based on Robinson that a doctor had standing to challenge Act 13. The Third Circuit stated that while the Robinson court did hold a doctor has standing to challenge Act 13, the case was distinguishable because it applied state law standing principles. The Third Circuit quoting from Robinson observed: “In contrast to the federal approach, notions of case or controversy and justiciability in Pennsylvania have no constitutional predicate, do not involve a court’s jurisdiction, and are regarded instead as prudential concerns implicating courts’ self-imposed limitations.” 83 A.3rd at 917. Therefore, the Third Circuit found Rodriguez’s reliance on Pennsylvania law misplaced.

While this case is of no precedential value, it leaves the door open to future challenges by those in the health care industry who are actually affected or whose patients are at actual or imminent risk of harm or have actually been harmed by fracking activities. There is also an interesting issue that remains to be addressed: Under what circumstances does a confidentiality agreement interfere with the health care industry’s ability to practice medicine or have First Amendment rights?

These and other issues concerning Act 13 will no doubt be the subject of future litigation.

Wilson Elser will continue to monitor and report on any decisions in such cases.

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