Lamare v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-312V
(Not to be Published)
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KATIE LAMARE, *
* Filed: February 27, 2015
Petitioner, *
* Special Master Corcoran
v. *
*
SECRETARY OF HEALTH AND * Motion for Redaction;
HUMAN SERVICES, * Interim Fee Award; Human
* Papillomavirus (“HPV”) Vaccine
Respondent. *
*
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Paul Dannenberg, Huntington, VT, for Petitioner.
Lynn Ricciardella, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ORDER DENYING MOTION TO REDACT1
On May 11, 2012, Katie Lamare filed this action seeking compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”2). Pet., dated May 11, 2012 (ECF
No. 1); Amended Pet., dated Mar. 11, 2013 (ECF No. 24).3 Petitioner alleges that she suffered a
1
Because this order contains a reasoned explanation for my 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, Pub. L. No. 107-347, § 205,
116 Stat. 2899, 2913 (codified as amended, 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the published order’s inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has fourteen (14) days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance
and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole order will be available
to the public. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758 (codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2006)) [hereinafter “Vaccine Act” or “the Act”].
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2006).
3
The original Petition that Ms. Lamare filed merely alleged that she was injured as a result of her receipt of the
HPV/Gardasil vaccinations. Pet. (ECF No. 1) at 2. Petitioner subsequently filed an Amended Petition (as per Special
Master Moran’s December 11, 2012 order (ECF No. 15)) specifying the injuries that she alleges were caused by her
receipt of vaccinations in question. Amended Pet. (ECF No. 24) at 1.
variety of injuries (including partial onset epilepsy, seizures, and migraine headaches) as a result
of the human papillomavirus (“HPV”) vaccinations she received between May 2009 and February
2010. Amended Pet. at 1.
This past fall, Ms. Lamare petitioned for an interim fee award on behalf of her attorney,
Paul Dannenberg, but I denied the fee petition by a decision dated December 8, 2014 (ECF No.
63) (“Interim Fee Decision”). Petitioner has now requested, pursuant to Vaccine Rule 18(b), that
I redact portions of the Interim Fee Decision including Petitioner’s name and/or descriptions of
her alleged illnesses. Mot. for Redaction (ECF No. 64). For the reasons stated below, I deny
Petitioner’s motion.
Procedural Background
Ms. Lamare’s claim alleges that she “received HPV/Gardasil vaccinations on May 18,
2009, August 18, 2009, and February 9, 2010,” and that she “was injured as a result of receiving
these vaccinations.” Amended Pet. at 1. In particular, Petitioner asserts that she was “diagnosed
with seizure disorder with profound and prolonged post ictal state” and “suffered the residual
effects of such injury for more than six months after administration of the vaccines.” Id. at 1-2.
After initiating this action in May 2012, Ms. Lamare began filing medical records in
support of her claim, completing the process approximately one year later. Respondent’s Rule 4(c)
Report was filed in June of 2013. ECF No. 30. Thereafter, the special master previously presiding
over this action ordered Petitioner to file a damages affidavit in July, followed by a status report
in August identifying an expert and proposing a date for filing of an expert report. See Scheduling
Order, dated June 17, 2013 (ECF No. 31). Petitioner subsequently requested numerous extensions
of time to file that report, accomplishing the task by mid-June of 2014. ECF No. 54.
Ms. Lamare then filed some additional medical records and medical literature (ECF No.’s
55-56) before filing an interim fee petition on September 24, 2014 (ECF No. 57). Respondent filed
an opposition to the fee petition to which Ms. Lamare replied. ECF No.’s 60-61. I subsequently
issued the Interim Fee Decision, in which (in the exercise of my discretion) I determined that an
interim fee award was not justified under the circumstances of this case. ECF No. 63.
Petitioner thereafter filed the present Motion for Redaction on December 22, 2014 (ECF
No. 64) (“Redaction Motion”), arguing that (applying the analysis for deciding redaction requests
set forth by Judge Lettow of the Court of Federal Claims in W.C. v. Sec’y of Health & Human
Servs., 10 Fed. Cl. 440 (2011), aff’d on other grounds, 704 F.3d 1352 (Fed. Cir. 2013)) under
Vaccine Rule 18(b), redaction of her name and/or certain information pertaining to her alleged
illnesses is appropriate because their disclosure would constitute an unwarranted invasion of
privacy. Respondent filed a response to the Redaction Motion on January 6, 2015 (ECF No. 66).
In it, she discussed W.C. along with a special master’s decision relevant to the topic of redaction,
2
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). Respondent
did not, however, take a position on the merits of the Redaction Motion, but instead left the matter
to my discretion.
Analysis
I. Law Governing Requests to Redact Decisions and Rulings
In the Vaccine Program, the records and pleadings filed in connection with a petitioner’s
claim are treated as confidential. See, e.g., Vaccine Rule 18(a); 42 U.S.C. § 300aa-12(d)(4)(A)
(“information submitted to a special master or the court in a proceeding on a petition may not be
disclosed to a person who is not a party to the proceeding without the express written consent of
the person who submitted the information”). Until such time as an entitlement decision (or any
other reasoned decision or ruling that might disclose arguably confidential information) issues, all
court filings may be viewed only by the parties, the judge or special master to whom the case is
assigned, or other special masters. 42 U.S.C. § 300aa-12(d)(4)(A); see also Mostovoy v. Sec’y of
Health & Human Servs., No. 02-10V, 2012 WL 4450835, at *2 (Fed. Cl. Spec. Mstr. June 25,
2012).
Once a special master issues a written decision or ruling, information related to the case
will foreseeably be disclosed therein. Nevertheless (and as explicitly recognized in the first
footnote of this order), the parties are afforded the opportunity to object to the disclosure of
information they consider private or confidential by requesting redaction of such information. 42
U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule 18(b). Those categories of information include
“medical files and similar files” (Vaccine Rule 18(b)(2)), although decisions by other special
masters, as well as the Court of Federal Claims, have also construed a petitioner’s name to be
properly subject to redaction in some circumstances. 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 (“FOIA”), 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 (petitioners not entitled to
redact their names from decision where they failed to establish compelling grounds for so doing).
As Respondent’s brief indicates, W.C. and Langland stand as two somewhat-opposed
interpretations of how strict the standard for obtaining redaction should be. Applying the Langland
standard, special masters have held that a petitioner seeking redaction of a ruling or decision must
establish a “compelling reason, tailored to meet the individual interest it serves” – a general
preference for privacy is not enough. Anderson v. Sec’y of Health & Human Servs., No. 08-0396V,
2014 WL 3294656, at *5 (Fed. Cl. Spec. Mstr. June 4, 2014) (quoting Langland, 2011 WL 802695,
at *7-8). Based on the language of the Vaccine Act itself, and the provisions in it discussing
redaction, “a petitioner requesting redaction of a decision must [] make an affirmative, factual
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showing that redaction is proper” to prevail. See Castagna v. Sec’y of Health & Human Servs., No.
99-411V, 2011 WL 4348135, at *10 (Fed. Cl. Spec. Mstr. Aug. 25, 2011).
W.C., by contrast, emphasizes that a petitioner’s privacy interests should be balanced
against “the public purpose of the Vaccine Act” in the same manner as such interests are balanced
under the FOIA (given the similarities of its privacy provisions). W.C., 100 Fed. Cl. at 460-61. In
so doing, “unwarranted” or “significant” invasions of privacy occasioned by disclosure of sensitive
information weigh in favor of redaction. Id. The standard W.C. applies to redaction requests is thus
somewhat more lenient, as it asserts that the “right to access public records in civil cases” that
counsels in favor of the disclosure of names and other sensitive information need not be as
carefully guarded in Vaccine Program cases, which are statutorily intended to be more summary
and less adversarial in nature. Id. at 460. As W.C. reasons, because Vaccine Program decisions
serve the purpose of disseminating information about possibly adverse vaccine reactions,
disclosure of a petitioner’s name or information about her illness is not always necessary to
effectuate that purpose. Id.
II. Appropriateness of Redactions Requested in Petitioner’s Motion
Ms. Lamare asserts in conclusory fashion that disclosure in the Interim Fee Decision of her
name and/or information about the illnesses she alleges she has experienced after receipt of the
HPV vaccine would constitute an unwarranted invasion of privacy and “could result in a negative
impact on any future attempt at employment.” Mot. for Redaction (ECF No. 64) at 2. She does
not, however, back up these assertions with any particularized showing that her personal
circumstances or employment would cause the disclosure of such information to be more invasive
or harmful to her than to other Vaccine Program petitioners.
In support of her motion, Petitioner primarily cites W.C. That case, while well-reasoned,
does not control the outcome of the present motion. Hanlon v. Sec’y of Health & Human Servs.,
40 Fed. Cl. 625, 630 (1998), aff'd, 191 F.3d 1344 (Fed. Cir. 1999) (decisions by the Court of
Federal Claims are guiding but non-binding to the decisions of special masters (except in the same
case on remand)).4 Langland is equally persuasive, and has been followed by other special masters.
See, e.g., Anderson, 2014 WL 3294656, at *4 n.l4 (citing other consistent cases). Special masters
have also questioned W.C.’s assumptions that FOIA’s privacy provisions should be read
congruently with those in the Vaccine Act and its promulgating rules, noting distinctions between
the two statutory schemes. Id. at *7.
I need not, however, harmonize these two competing authorities, or conclusively adopt one
or the other in ruling on Ms. Lamare’s motion – for I find that under either approach, Petitioner
4
By contrast, Federal Circuit decisions are binding on special masters. Guillory v. Sec’y of Health & Human Servs.,
59 Fed. Cl. 121, 124 (2003), aff’d, 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human
Servs., No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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has failed to make a proper showing that the requested information should be redacted. Rather,
Ms. Lamare seems to operate from the assumption that she automatically is entitled to redaction
once she requests it. This is not the case. Anderson, 2014 WL 3294656, at *4 (citing Langland,
2011 WL 802695, at *5); see also Pearson v. Sec’y of Health & Human Servs., No. 03-2751V,
2011 WL 4863717, at *5 (Fed. Cl. Spec. Mstr. Sept. 22, 2011) (“[p]etitioner’s preference to keep
his damages award private is not a sufficient reason to . . . justify redaction”). Rather (and even
under W.C.) Vaccine Program petitioners seeking redaction must always make some kind of
showing as to why disclosure would be harmful to the petitioner. W.C., 100 Fed. Cl. at 460 (noting
that balancing of interests favors redaction “where an objection [to disclosure] is made on
reasonable grounds”) (emphasis added). The petitioner in W.C. made this showing by offering an
affidavit in which he explained that his work at a federal governmental department required him
to testify frequently for the government in cases “involving criminal and administrative violations
of immigration and nationality laws,” and therefore the release of his name and details about the
medical conditions stemming from his flu vaccination would potentially harm him professionally
by impacting his credibility. Id. at 447.
In this case, Ms. Lamare has not substantiated her concern that disclosure of her name or
her illnesses would be harmful to her personally or professionally. Even in cases following W.C.
(explicitly or implicitly), petitioners’ redaction requests have been denied where they failed to
substantiate the basis for the request. See, e.g., Eisler v. Sec’y of Health & Human Servs., No. 10-
786V, 2013 WL 221522, at *4 (Fed. Cl. Spec. Mstr. Jan. 11, 2013) (petitioner’s request for
redaction not comparable to facts in W.C., where petitioner had not established that her
professional circumstances would be negatively impacted by disclosure of her disease, and thus
alleged privacy concerns occasioned by disclosure were too speculative), reconsidered on
remand.5
CONCLUSION
For the reasons set forth above, I hereby determine that Petitioner has not established
grounds for redaction of my interim fee decision, and I therefore DENY the motion.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
5
The special master subsequently reconsidered her denial of the petitioner’s request for redaction after the petitioner
provided evidence that she had received a telephone call (on her unlisted line) from a stranger wishing to discuss her
damages settlement, finding “that petitioner’s fright concerning the unwelcome telephone contact as sufficiently
impressive so as to justify redacting her name to her initials.” Eisler v. Sec’y of Health & Human Servs., Order on
Remand (Apr. 3, 2013). I similarly am prepared to reconsider this order once there has been a substantive decision or
ruling in this case, if Petitioner requests redaction at that time, and/or if Petitioner substantiates any future request.
5