Judge: doctor has no standing to sue over Pa. Oil and Gas Act involving alleged 'fracking gag'

By Jon Campisi | Nov 5, 2013

A physician specializing in the treatment of renal diseases, hypertension and advanced diabetes cannot bring suit against the commonwealth over the Pennsylvania Oil and Gas Act, a federal judge in Harrisburg has ruled.

Alfonso Rodriguez, who works as a nephrologist, has no standing to sue over what the doctor calls the “medical gag act,” an amendment to the Oil and Gas Act, officially known as Act 13, that he says prevents physicians from telling patients about the health dangers relating to hydraulic fracturing.

Also known as “fracking,” hydraulic fracturing is a process by which toxic chemicals are mixed with water and sent underground to break apart shale rock in order to extract natural gas.

Gas drilling is big business in Pennsylvania, especially the northeastern part of the state, which sits atop the Marcellus Shale natural rock formation.

Rodriguez, who says that direct contact with fracturing fluid and accompanying waste products can cause a wide variety of health problems, had claimed that his being prevented through legislation from informing members of the public about the dangers associated with fracking means he must violate the “principles of medical ethics,” which could lead to him being disciplined by the American Medical Association.

Rodriguez ended up filing suit in late July 2012 against Pennsylvania Department of Environmental Protection Secretary Michael Krancer, Public Utility Commission Chairman Robert Powelson, and Linda Kelly, who previously served as the acting state attorney general, alleging various constitutional rights violations.

The plaintiff sought to have the courts declare the Oil and Gas Act a violation of his rights under the First and Fourteenth Amendments of the U.S. Constitution.

He also sought to have a judge enjoin the defendants from enforcing the statute.

The three defendants subsequently filed motions to dismiss the litigation.

In an Oct. 23 memorandum and opinion, U.S. District Judge A. Richard Caputo, sitting in the Middle District of Pennsylvania, wrote that the plaintiff lacks standing to bring suit against the defendants.

Citing case law, Caputo said a plaintiff lacks standing if his injury stems from an “indefinite risk of future harms inflicted by unknown third parties.”

Caputo pointed to Reilly v. Ceridian Corp., in which the U.S. Third Circuit Court of Appeals affirmed a district court’s refusal to confer standing in cases where plaintiffs had “yet to suffer any harm, and their alleged increased risk of future injury [was] nothing more than speculation.”

The Third Circuit, Caputo noted, refused to confer standing where the “prospective damages, described by the [plaintiff-appellants] as certain, are, in reality, conjectural.”

The judge determined that like in Reilly, the plaintiff in the present case alleged an injury that is “too conjectural to satisfy the injury in fact requirement of Article III standing.”

Caputo said that Rodriguez “broadly asserts that the Act infringes on his First and Fourteenth Amendment rights by ‘abridging [his] freedom … to communicate with [his] patients, colleagues, medical researchers and the public regarding the [identity] and amount of chemicals’ obtained under the Act.

“Although Plaintiff alleges that he requires the kind of information contemplated under the Act for the treatment of his patients, he does not allege that he has been in a situation where he needed or attempted to obtain such information, despite the fact that he alleges that he has treated patients injured by hydraulic fracturing fluid in the past,” the judge wrote. “Similarly, 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.

“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.”

The doctor has also failed to allege that he has been forced to waive any of his fundamental constitutional rights, Caputo wrote.

Rodriguez had also attempted to satisfy the injury-in-fact requirement by claiming that he has been forced to pay legal fees to draft and copy a warning notice to patients informing them that he may be prevented from communicating vital information to them during the course of treatment.

But Caputo wrote that while the plaintiff did allege he suffered an economic injury, the doctor’s expenditures “were merely a prophylactic measure to ease his fears of potential future harm.

“Since Plaintiff has not yet obtained any information under the Act, he should be able to maintain an appropriate relationship with his patients under the Ethics Code,” Caputo wrote. “Furthermore, he has not sufficiently alleged that he will need to acquire such information because he asserts that he has already treated patients exposed to fracturing fluid without it. Therefore, the notice he drafted to his patients was not a require of Plaintiff’s adherence to Act; it was a voluntary exercise of caution.”

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