Clark v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-813V
Filed: July 1, 2022
PUBLISHED
Special Master Horner
JAMES CLARK,
Petitioner, Shoulder Injury Related to
v. Vaccine Administration
(“SIRVA”); Motion to Redact
SECRETARY OF HEALTH AND Decision
HUMAN SERVICES,
Respondent.
Caryn Fennell, Caryn S. Fennell P.C., Woodstock GA, for petitioner.
Nancy Tinch, U.S. Department of Justice, Washington, DC, for respondent.
ORDER ON MOTION TO REDACT 1
On June 8, 2018, petitioner, James Clark, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), 2 alleging that his receipt
of a Hepatitis B vaccination on February 17, 2017, caused a left shoulder injury. (ECF
No. 1.) On February 7, 2022, a decision issued dismissing the petition. (ECF No. 61.)
Petitioner now moves to redact that decision. For the reasons discussed below,
petitioner’s motion is DENIED.
I. Legal Standard
Vaccine Rule 18(b) effectuates the opportunity for objection contemplated by
Section 12(d)(4) of the Vaccine Act, which provides in relevant part that “[a] decision of
a special master or the court in a proceeding shall be disclosed, except that if the
1
Because this order contains a reasoned explanation for the special master’s action in this case, it will be
posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act
of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the order will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2
All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa-
10-34.
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decision is to include information . . . (ii) which are medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of privacy, and if the
person who submitted such information objects to such information in the decision, the
decision shall be disclosed without such information. 42 U.S.C. § 300aa-12(d)(4)(B).
The U.S. Court of Appeals for the Federal Circuit has not had occasion to interpret this
section of the Vaccine Act. There are, instead, two competing methods of interpretation
endorsed by different decisions in the lower courts. See Langland v. Sec’y of Health &
Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3, 2011); W.C.
v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440 (2011).
In Langland, the Chief Special Master examined a redaction request pursuant to
Section 12(d)(4)(B) in the context of the common law traditions regarding redaction and
public access, the E-Government Act, and other provisions of the Vaccine Act favoring
public disclosure. 2011 WL 802695, at *6-8. The Chief Special Master concluded that
“the party seeking to seal a document faces a burden to show particularized harm
outweighing the public interest in disclosure. This common law background informs the
correct construction of the language in section 12(d)(4)(B)(ii), and militates against
routine redaction of all sensitive medical information from special masters' decisions.”
Id. at *8. Upon review of the redaction request at issue, the Chief Special Master
concluded that the request was unsupported and only a redaction of the petitioner’s
minor child’s name to initials and redaction of the child’s birthdate was appropriate. Id.
at * 11.
However, the Chief Special Master also observed that:
One may readily conceive of medical information in a vaccine case that
might be redacted by a special master, upon receiving a proper motion in
accordance with Vaccine Rule 18(b), as meeting the “clearly unwarranted”
criterion. Facts involving sexual misconduct or dysfunction, family medical
history not pertinent to the vaccinee's claim, unrelated mental illness, or
medical conditions inherently likely to bring opprobrium upon the sufferer,
might well be redacted upon a proper motion. Such redaction decisions can
only be reached on a case-by-case basis.
Id. at *9.
Subsequently, in W.C., the Court of Federal Claims reviewed a redaction request
in the context of the Freedom of Information Act (FOIA), which the court observed to
employ language similar to Section 12(d)(4)(B) of the Vaccine Act. 100 Fed. Cl. 440.
The court focused on the idea that petitioner’s request “must be weighed against the
government's interest in public disclosure.” Id. at 461. Focusing specifically on the
identity of the petitioner, the court observed that it is petitioner’s medical history and
adverse vaccine reaction, and not petitioner’s own specific identify, that the public has
an interest in seeing disclosed. Id. W.C. has been interpreted as providing a more
lenient standard for redaction as compared to Langland. See, e.g., K.L. v. Sec’y of
Health & Human Servs.,123 Fed. Cl. 497, 507 (2015) (noting that the Special Master
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below “argued that even when a Special Master follows the lenient standard for
redaction set forth in W.C., requests for redaction have been denied because they failed
to substantiate the basis for the request.”). Nonetheless, special masters do not abuse
their discretion by requiring petitioners to affirmatively demonstrate that redaction is
justified. (Id. at 507-08 (finding that the special master’s requirement that petitioner
provide “sufficient cause to justify redaction” is not contrary to the Vaccine Act or prior
precedent and explaining that “[e]ach Special Master must review every case and
exercise his or her discretion, given the specific facts presented in that particular case.”)
II. Party Contentions
In his motion, petitioner provided no discussion of the relevant legal standard.
(ECF No. 62.) However, citing Vaccine Rule 18(b), petitioner requested the following
redactions:
• Redaction of petitioner’s name within the caption to initials to protect his
own identify; and
• Redaction of petitioner’s wife’s name within the body of the decision to
protect her identity; and
• Redaction of “any mentions of any genetic testing, degenerative genetic
condition, or diagnoses related to genetic conditions.” Petitioner requests
this redaction for his own privacy as well as his children’s, given that they
may also be at risk of the same genetic condition.
(Id. at 1-2.)
Petitioner asserts without further explanation that release of this information
“would constitute an unwarranted invasion of privacy and would reveal information
about other medical conditions of the Petitioner that would be harmful to him or his
family.” (Id. at 2.) Accompanying petitioner’s motion is a copy of the decision dismissing
this case demonstrating his proposed redactions with blacked out text. (ECF No. 62-1.)
In response to petitioner’s motion, respondent provided a recitation of the
relevant case law, namely a comparison of the above-discussed Langland and W.C.
cases. (ECF No. 63, pp. 1-4.) However, citing the language of the Vaccine Act
indicating that decision of special masters “shall be disclosed” (42 U.S.C. § 300aa-
12(d)(4)(B)), respondent stresses that “when petitioners file petitions requesting
compensation under the Act, they do so with knowledge that the Act calls for decisions
addressing the merits of the petitions, which will necessarily contain their medical
information and will be made available to the public.” (Id. at 4.) Respondent continues:
Congress’s requirement that decisions of special masters “shall be
disclosed” is evidence that Congress recognized the public’s interest in
understanding the bases for the special masters’ adjudication of the merits
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of these claims. Respondent likewise acknowledges that there is a privacy
interest inherent in all medical information. Yet, the Vaccine Act’s use of the
term “clearly unwarranted invasion of privacy” to define which information is
suitable for redaction requires a petitioner to show some additional privacy
interest to justify redaction of a decision. Without such a showing, redaction
is not appropriate.
(Id.)
Nonetheless, respondent “defers to the sound discretion of the Special Master to
determine which remedy strikes the appropriate balance between the public and private
interests in this instance.” (Id. at 5.) “Respondent does not believe it is appropriate to
advocate in favor of disclosure of petitioner’s information in any particular case,
including this one, but rather defers to the Special Master’s judgment as to whether
petitioner’s Motion should be granted . . .” (Id.) Respondent does contend, however,
that “[t]here is also a significant Program interest in not having every case caption
reduced to initials. This would make the administration of the Program unmanageable,
because the parties and Court rely on citing precedent that is readily accessible and
suitably differentiated from other cases in briefing and arguments.” (Id.)
Petitioner filed no reply.
III. Discussion
The decision petitioner wishes to redact dismisses his claim that he suffered a
left shoulder injury related to vaccine administration or “SIRVA.” (ECF No. 61.) In
order to resolve the question of entitlement, the decision examined both the Table Injury
of SIRVA and an additional cause-in-fact claim asserted in the alternative. With regard
to the Table SIRVA claim, the decision examined the four criteria set forth in the
Qualifications and Aids to Interpretation (“QAI”). Pertinent to this motion, the decision
resolved that petitioner could not demonstrate the fourth QAI Table SIRVA criterion,
because he suffered other conditions that could explain his symptoms. Specifically, the
decision concluded that petitioner suffered ankylosing spondylitis, complications from a
prior shoulder replacement, and cervical spine degeneration. (Id. at 31-33.) A specific
genetic neuromuscular condition identified in petitioner’s medical history was also part
of the expert opinions in the case but was not explicitly addressed in the analysis
resolving the case. 3 However, petitioner’s requested redactions encompass both the
fact of the genetic test results as well as references to spinal degeneration that do not
explicitly implicate the genetic condition. (See ECF No. 62-1, passim.)
3
It should be noted that although respondent and his expert proposed that the condition may have
relevance, petitioner contended that his genetic testing only showed him to be susceptible to the condition
and that the condition never actually did manifest in petitioner. Ultimately, the decision does not
definitively resolve whether petitioner actually suffers the condition.
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To the extent petitioner requests redaction of his and his wife’s names to protect
their respective identities, he has failed to articulate why such protection is necessary.
Petitioner’s identity does not in itself constitute the type of medical information that may
be redacted pursuant to Vaccine Rule 18(b). (In fact, petitioner’s wife has not even had
any of her own medical information disclosed.) Moreover, as respondent explains,
petitioner knowingly placed his health at issue by bringing this petition and knew or
should have known that resolution of his claim was likely to result in disclosure of at
least some medical information. Thus, the fact that his identity is linked to a decision
discussing the merits of this case does not justify redaction without more. However,
there is no suggestion in petitioner’s motion that the type of condition alleged – a left
shoulder injury – is sensitive as a general matter or that petitioner’s own circumstances
would render it a sensitive issue for him personally. Moreover, respondent is correct to
observe that the Court has some interest in maintaining unredacted case captions.
Of course, petitioner has also raised the issue that the decision dismissing this
case discussed a genetic condition. Again, however, petitioner provides no further
explanation seeking to justify how disclosure of this condition constitutes a “clearly
unwarranted invasion of privacy.” 42 U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule 18(b).
The fact that the condition petitioner wishes concealed is genetic is not in itself
meaningful. The prior Langland case is persuasive in describing the type of condition
that might be redacted as involving, for example, “sexual misconduct or dysfunction,
family medical history not pertinent to the vaccinee's claim, unrelated mental illness, or
medical conditions inherently likely to bring opprobrium upon the sufferer.” Langland,
2011 WL 802695, at *9. Without treating this as an exhaustive list, these are examples
of conditions that have socially sensitive implications (e.g. sexual or mental health)
and/or are incidental to the decision issued.
Here, however, the genetic condition at issue is a neuromuscular disorder that
was affirmatively raised by the opining experts in assessing the root cause(s) of the
shoulder condition that petitioner placed at issue in the case. Without doubting that a
neuromuscular condition can have a significant effect on a person’s life, it is not
inherently sensitive in the same manner as the conditions discussed in Langland, i.e.
likely to bring embarrassment or opprobrium. If the fact of petitioner’s possible
neuromuscular disorder alone sufficed to warrant redaction, then given the nature of
proceedings in this program it seems likely that virtually every decision issued in this
program would involve subject matter sensitive enough to be redacted. That would not
be consistent with the public disclosure interest that both Langland and W.C. identify.
Petitioner’s further concern regarding his children is also speculative as he has made no
assertion that his children have actually inherited the condition at issue.
Additionally, petitioner’s actual proposed redactions are extensive and would
hinder the ability of subsequent readers to understand the decision. Petitioner proposes
substantial and substantive redactions in the following sections of the decision: the
recitation of petitioner’s medical records, the description of respondent’s expert’s initial
report, the description of petitioner’s own expert’s second report, the description of
petitioner’s own motion for a ruling on the record, and the description of respondent’s
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response to the motion. As noted above, these requested redactions are not limited to
references to the specific genetic condition, but also encompass requests to redact
many references to spinal disc degeneration more broadly. The fact that I found
respondent’s expert persuasive in opining that petitioner’s shoulder condition was partly
explained by his preexisting cervical spine degeneration was a factor in concluding
petitioner had not preponderantly established the fourth SIRVA QIA criterion.
Accordingly, if permitted, petitioner’s proposed redactions would obscure the basis for
respondent’s expert’s opinion, leaving it unclear why that opinion was ultimately
persuasive.
Yet, despite being extensive, petitioner’s proposed redactions are also
incomplete. For example, petitioner requests multiple redactions from his medical
history of MRI findings of spinal disc degeneration (e.g. ECF No. 61-1, pp. 11-12), but
leaves largely intact a complete paragraph within the undersigned’s analysis discussing
why respondent’s expert was persuasive in opining that petitioner’s condition is due to
significant cervical spine degeneration (Id. at 32-33). Thus, in order to actually
effectuate a redaction of all references to degenerative findings, a substantial portion of
the undersigned’s analysis would also need to be excised beyond what has been
specifically requested. Otherwise, the analysis would still reveal the presence of a
degenerative spinal condition even if the specific redactions proposed were permitted.
Because petitioner has not articulated any underlying explanation for his requested
redactions, it is difficult to understand how the requested redactions within the medical
history could be protective of petitioner’s privacy while the decision still reveals the fact
of spinal degeneration in the analysis. This leaves only two possibilities, either the
requested redactions will be ineffective relative to spinal degeneration or they are
overbroad relative to identification of the specific the genetic condition. Neither
explanation is favorable to petitioner’s motion.
IV. Conclusion
There can be no question that publication of the decision at issue constitutes
some intrusion into petitioner’s privacy. The question to be resolved, however, is
whether that necessary intrusion is “clearly unwarranted.” In that regard, petitioner’s
spartan motion has completely failed to provide any reasonable justification for
redaction consistent with the above-discussed legal standard. While I sympathize with
petitioner’s desire for privacy and do not doubt that he has personal reasons for
preferring not to disclose his prior genetic testing, he has failed to substantiate that a
balancing of the relevant considerations militates in favor of any redactions to the
decision dismissing his petition.
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In light of all of the above, petitioner’s motion is DENIED. Publication of the
decision at issue will be held until the time for the filing of any motion for review has
passed.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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