B. v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-902V
(not to be published)
K.B., Chief Special Master Corcoran
Petitioner, Filed: December 17, 2020
v.
Motion to Redact; Special
SECRETARY OF HEALTH AND Processing Unit (SPU); Tetanus
HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap);
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
ORDER GRANTING MOTION TO REDACT AND AMENDING CASE CAPTION 1
On June 20, 2019, K.B. filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine
Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration as a result of the tetanus, diphtheria, and acellular pertussis vaccine
administered to her on December 1, 2017. Petition at 1.
I issued a Ruling on Entitlement on October 16, 2020. ECF No. 33. Petitioner has
now timely requested, pursuant to Vaccine Rule 18(b), that I redact her name to her initials
1
Because this unpublished order contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 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 light of
my conclusion below, however, I intend to post this Order with a redacted caption. To the extent
Petitioner would seek further redaction, 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
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
throughout the Ruling on Entitlement, including her case caption. ECF No. 35. For the
reasons stated below, I hereby grant Petitioner’s motion.
Procedural Background
Petitioner filed the present motion on October 21, 2020, requesting that her name
be redacted from the Ruling on Entitlement. ECF No. 35. Petitioner argues that an internet
search of her name will retrieve the Ruling on Entitlement in this case. Id. at 3-4. Her
request for redaction stems from the fact that she is a physician working as a pediatrician
in both an urgent care setting and at a family medicine clinic. Id. at 4. As a result, she “is
concerned that she may be perceived as ‘anti-vaccine’ if her name appears in the context
of a Vaccine Program proceeding, which could adversely impact her medical practice and
professional relationships with her patients and colleagues.” Id.
Respondent filed a brief in reaction to Petitioner’s motion. ECF No. 36. Respondent
took no position as to whether redaction was appropriate or not, deferring resolution of
the matter to my judgment. Id. at 4-5. Respondent did, however, discuss the standards to
be applied in weighing redaction requests based on two decisions addressing the matter
at length. See generally W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440, 456-
60 (Fed. Cl. 2011), aff’d, 704 F.3d 1352 (Fed. Cir. 2013); Langland v. Sec’y of Health &
Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3, 2011), mot.
for rev. denied on non-relevant grounds, 109 Fed. Cl. 421 (2013); ECF No. 36 at 2-4.
Petitioner did not file a reply. The matter is now ripe for resolution.
Analysis
I have previously discussed in other decisions the Vaccine Act’s treatment of
requests to redact Program decisions and rulings. See generally K.L. v. Sec’y of Health
& Human Servs., No. 12-312V, 2015 WL 11387761, at *2-4 (Fed. Cl. Spec. Mstr. Feb.
27, 2015), mot. for review den’d,123 Fed. Cl. 497 (2015); § 12(d)(4)(B); Vaccine Rule
18(b). The Act provides for redaction from published decisions of certain categories of
information – “medical files and similar files” – but only if the disclosure of such information
would constitute a “clearly unwarranted invasion of privacy.” Section 12(d)(4)(B).
Although the Vaccine Rules allow for the redaction of a minor’s name, adult petitioners’
names (which are not similarly protected automatically) may also be redacted if the
movant establishes proper grounds for so doing. See generally W.C.,100 Fed. Cl. at 460-
61 (analogizing Vaccine Act’s privacy concerns to treatment of similar issues under the
Freedom of Information Act, claimant’s name was properly subject to redaction from
decision); A.K. v. Sec’y of Health & Human Servs., No. 09-605V, 2013 WL 322918, at *2
(Fed. Cl. Spec. Mstr. Jan. 17, 2013) (same); but see Langland, 2011 WL 802695, at *7-8
2
(petitioners not entitled to redaction of names from decision where they failed to establish
compelling grounds for so doing).
As I have previously observed, W.C. and Langland stand as two
somewhat-opposed interpretations of how strict the standard for obtaining redaction
should be. Langland adopts a more stringent approach, while W.C. emphasizes a
balancing test that weighs a petitioner’s privacy interests against “the public purpose of
the Vaccine Act.” W.C., 100 Fed. Cl. at 460-61; K.L., 2015 WL 11387761, at *2-3. In either
case, however, a petitioner needs to make some showing to justify the relief of redaction;
redaction is not available simply at a petitioner’s beck and call. W.C., 100 Fed. Cl. at 460
(balancing of interests favors redaction “where an objection [to disclosure] is made on
reasonable grounds”) (emphasis added). I have permitted redaction in cases where such
a specialized showing was made without reconciling these two competing standards or
choosing one over the other. See, e.g., K.L. v. Sec’y of Health & Human Servs., No.
12-312V, 2015 WL 11882259 (Fed. Cl. Spec. Mstr. Oct. 30, 2015) (granting petitioner’s
motion for redaction because disclosure of her injuries would cause her harm in the
employment context).
Here, I find that it is appropriate to grant the redactions proposed by Petitioner,
because she has met her burden. Specifically, she has established reasonable grounds
related to her professional life for requesting redaction. See K.L., 2015 WL 11882259;
N.W. v. Sec’y of Health & Human Servs., No. 07-93V, 2018 WL 5851061 (Fed. Cl. Spec.
Mstr. Jul. 13, 2018) (granting Petitioner’s motion for redaction finding that Petitioner’s
particular professional and educational concerns outweighed the competing interest in
disclosure). In addition, the scope of the request is reasonable, as Petitioner asks only
that her name be redacted to her initials, rather than seeking to redact information such
as references to her medical condition, or the vaccine claimed to have caused her injury. 3
Accordingly, I will grant Petitioner’s motion to redact her name to her initials.
CONCLUSION
For the reasons set forth above, I hereby determine that Petitioner has established
grounds for redaction of her name in the Ruling on Entitlement, and I therefore GRANT
her motion. The Clerk of this Court is hereby instructed to change the caption of
this case to the caption above.
3
In any event, such information would not be appropriate for redaction under the Vaccine Act given the
public’s interest in disclosure of possible vaccine-related injuries and their causes. See W.C., 100 Fed. Cl.
at 461.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4