Moore v. Armour Pharmaceutical Co.

• Decision Date: 02 April 1991
• Docket Number: No. 90-8422,90-8422
• Citation: 927 F.2d 1194
• Parties: Jackie MOORE, individually, and as the natural guardian of Christopher Case; Johnny Ray Kellar; Margie Kellar, individually, and as the natural guardians of Johnny Travis Kellar; Clifford Ray; Louise Ray, individually, and as the natural guardians of Randy Ray, Robert Ray, Richard Ray, Plaintiffs-Appellants, v. ARMOUR PHARMACEUTICAL CO.; Cutter Laboratories, a Division of Miles Laboratories, Inc., Defendants, Center for Disease Control; Bruce L. Evatt, Dr., Movants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1194

927 F.2d 1194

19 Fed.R.Serv.3d 207

Jackie MOORE, individually, and as the natural guardian of

Christopher Case; Johnny Ray Kellar; Margie Kellar,

individually, and as the natural guardians of Johnny Travis

Kellar; Clifford Ray; Louise Ray, individually, and as the

natural guardians of Randy Ray, Robert Ray, Richard Ray, Plaintiffs-Appellants, v. ARMOUR PHARMACEUTICAL CO.;

Cutter Laboratories, a Division of

Miles Laboratories, Inc., Defendants,

Center for Disease Control; Bruce L. Evatt, Dr., Movants-Appellees.

No. 90-8422.

United States Court of Appeals, Eleventh Circuit.

April 2, 1991.

Elizabeth Koebel Russo, Robert L. Parks, Anderson, Moss, Parks & Russo, P.A., Miami, Fla., for plaintiffs-appellants.

Nina L. Hunt, Asst. U.S. Atty., Atlanta, Ga., Scott R. McIntosh, Dept. of Justice, Civ. Div., Appellate Staff, Washington, D.C., for movants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and DUBINA, Circuit Judges and HILL, Senior Circuit Judge.

DUBINA, Circuit Judge:

Appellants Jackie Moore, individually and as the natural guardian of her minor child, Christopher Case; Marge Kellar, individually and as the natural guardian of Johnny Travis Kellar; and Clifford Ray and Louise Ray, individually and as the natural guardians of Randy Ray, Robert Ray, and Richard Ray, (hereinafter collectively referred to as "the plaintiffs"), appeal the district court's order quashing deposition subpoenas seeking the testimony of Dr. Bruce Evatt, an employee of the Center for Disease Control ("CDC") in Atlanta, Georgia. We find that the plaintiffs' subpoena was too broad, and, accordingly, affirm the district court's order. 129 F.R.D. 551.

I. BACKGROUND

This action arose out of three private product liability actions filed by the plaintiffs in federal district courts in Florida. The plaintiffs are parents whose children are hemophiliacs infected with the Human Immunodeficiency Virus ("HIV"). ¹ The parents alleged in their complaints that their children were exposed to HIV through tainted transfusions of Factor VIII, a blood-clotting agent derived from donated human blood plasma. The defendants in the Florida litigation are Armour Pharmaceutical Company ("Armour") and Cutter Laboratories, a division of Miles Laboratories, Inc. ("Cutter"). Armour and Cutter are members of the blood industry who allegedly supplied the "infected" blood to the plaintiffs' children. The plaintiffs alleged that Armour and Cutter failed to adequately screen the donated plasma and the Factor VIII manufactured from the plasma for HIV or associated biological markers. The thrust of their lawsuits is that Armour and Cutter failed to warn them of the risk of contracting HIV from the blood that was supplied to their children.

During the course of the litigation, the plaintiffs sought, by subpoena, testimony from two physicians who work for the CDC, Dr. Evatt and Dr. Donald Francis. The case before us involves only the subpoenas regarding Dr. Evatt. Both Dr. Evatt and Dr. Francis are involved in research developing methods for detecting HIV in donor blood. The plaintiffs sought testimony regarding the developing position of the CDC as to the evolution of the AIDS epidemic and the technology available at specific points in time for screening blood and blood products, the steps taken by the CDC physicians to safeguard the public, and notifications made to plasma and fractionating manufacturers, blood banks, and others regarding the ongoing seriousness of the unknown transmissible virus subsequently identified as AIDS.

The CDC, with the help of doctors, regularly compiles publications that represent its position on advancements in AIDS research. Input from many different physicians and researchers is printed in these publications. The publications do not necessarily represent the opinions of all the different researchers; rather, the CDC will formulate what it feels is the most accurate position, then publish it. Drs. Francis and Evatt took some positions as to the proper procedures for detecting HIV and warning the public of certain risks that were not immediately included in the various publications. The two doctors also made some recommendations or representations to Armour and Cutter in the underlying litigation, either directly or indirectly, vis-a-vis public discussions on the subject, concerning the risks and advancements in the subject area. These representations were not implemented by Armour and Cutter, nor were Dr. Francis and Dr. Evatt's representations endorsed by the CDC.

The CDC and Drs. Francis and Evatt are under the authority of the Secretary for Health and Human Services ("HHS"). The HHS denied permission to the plaintiffs to depose Dr. Evatt because the agency had received so many requests relating to AIDS litigation that it simply could not grant all the requests and simultaneously carry on its governmental functions. Other reasons cited by HHS for refusing to allow the depositions included the government's policy of remaining strictly neutral in private litigation and the government's concern that allowing its employees to get into the conflict of private litigation would harm frank, free, and full exchanges within the scientific community.

On August 1, 1989, the plaintiffs' counsel served a subpoena upon Dr. Evatt to testify at a deposition to be taken on August 3, 1989. Counsel had attempted to give Dr. Evatt more notice, but Dr. Evatt was out of the country until the first of the month. By agreement of counsel, Dr. Evatt's deposition was continued until a later date to allow HHS and the plaintiffs an opportunity to obtain court review regarding the propriety of the deposition of a CDC employee. HHS then filed a motion to quash, or alternatively, for a protective order on behalf or Dr. Evatt and the CDC. The district court granted HHS's motion to quash.

II. DISCUSSION

Title 5 U.S.C. Sec. 301 authorizes the head of an executive department to place limits on how employees can disseminate information gained in the performance of their official duties. ² Pursuant to 5 U.S.C. Sec. 301, HHS promulgated regulations restricting employee testimony in private litigation. The regulations read in part:

No Department of Health and Human Services employee may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the employee's official relationship with the Department of Health and Human Services unless authorized by the agency head pursuant to this part based on a determination by the agency head, after consultation with the Office of the General Counsel, that compliance with the request would promote the objectives of the Department of Health and Human Services.

45 C.F.R. Sec. 2.3(a) (1990).

The authority allowing department heads to promulgate regulations restricting employee testimony in private litigation was upheld by the Supreme Court in U.S. ex rel. Touhy...