EI du Pont de Nemours & Co. v. Finklea

• Decision Date: 20 December 1977
• Docket Number: Civ. A. No. 77-2059-CH.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: E. I. du PONT de NEMOURS AND COMPANY, a corporation, Petitioner, v. John F. FINKLEA, Director of the National Institute of Occupational Safety and Health, and Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, Respondents.

442 F. Supp. 821

E. I. du PONT de NEMOURS AND COMPANY, a corporation, Petitioner, v. John F. FINKLEA, Director of the National Institute of Occupational Safety and Health, and Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, Respondents.

Civ. A. No. 77-2059-CH.

United States District Court, S. D. West Virginia, Charleston Division.

December 20, 1977.

George G. Guthrie, Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., for petitioner.

John A. Field, III, U. S. Atty., Charleston, W. Va., for respondents.

MEMORANDUM OPINION

KNAPP, Chief Judge.

Petitioner, E. I. du Pont de Nemours and Company (du Pont), commenced this declaratory judgment action pursuant to the provisions of 28 U.S.C. § 2201, et seq., and Rule 57, Federal Rules of Civil Procedure, against respondents, John F. Finklea, Director of the National Institute for Occupational Safety and Health (NIOSH), and Joseph A. Califano, Secretary of Health, Education and Welfare (Secretary), asking this Court to declare certain subpoenas duces tecum served on du Pont by NIOSH invalid and unenforceable.

Certain facts relevant to this action have been stipulated to by the parties. Additional facts germane to the disposition of this action are not in serious dispute.

On May 26, 1976, du Pont was advised by representatives of NIOSH that NIOSH had been requested by an authorized representative of du Pont's employees to make a research investigation at du Pont's Belle, West Virginia, plant to determine whether any substance normally found at that plant had potentially toxic effects in such concentrations as used or found.

Prior to January 14, 1977, representatives of NIOSH, with the assistance and consent of du Pont, made several inspections at the Belle plant and interviewed numerous employees in connection with the research investigation. These inspections revealed that of the 147 different chemicals used or found at the Belle plant, 13 were suspected of being carcinogens. NIOSH thus concluded that an investigation should be conducted to determine whether there is a high incidence of cancer among the employees at the Belle plant, and if so, whether such incidence is job related.

On January 14, 1977, NIOSH, acting pursuant to the provisions of Section 8(b) of the Occupational Safety and Health Act (the Act), 29 U.S.C. § 657(b), issued to du Pont an administrative subpoena duces tecum requiring Fred Winterkamp, in his capacity as manager of the Belle plant, to produce in connection with the research investigation the medical and employee records of 34 named individuals, together with the medical and employee records of some 200 individuals whose names appeared on a list taken from du Pont's Tumor Registry, which list du Pont had furnished NIOSH on August 20, 1976.

On February 3, 1977, NIOSH, again acting pursuant to the provisions of 29 U.S.C. § 657(b), issued a second administrative subpoena duces tecum requiring Mr. Winterkamp to produce in connection with the investigation the personnel and medical records, including any death certificates, of all former and current employees of du Pont at the Belle plant. This subpoena was served on du Pont on February 7, 1977.

The relevancy of the information sought by NIOSH contained in the subpoenaed records is explained by Dr. Finklea in his affidavit of April 18, 1977, to-wit:

"11. The procedures for identifying causal factors in industrial disease differ. For dermatologic and most neurologic conditions, the interval between exposure and manifestation of disease symptoms is relatively brief. The disease process in cancer is lengthy, often approaching decades between exposure and diagnosis or death. Because of this difference, medical examinations of the current work force alone for possible cancers is inadequate for the research investigation at the Belle plant. The inadequacy of this approach to carcinogenesis is further complicated by changes in a given employer's work force resulting from either routine job mobility or the sensitivity of certain individuals to occupational exposures. Recent epidemiologic studies have demonstrated that it is often the terminated employees who are dying of cancer at even higher rates than the current work force. Therefore, to carry out an effective occupational health investigation in this case, it is necessary for NIOSH to conduct a methodologically correct study of the cancer incidence among not only present employees but also among all past employees of the du Pont Belle Plant.

12. To study the cancer incidence and evaluate the cancer risk in the workplace, it is first necessary to reconstruct as complete a list as possible for each individual who is or has ever been employed at Belle according to the individual's name, date of birth, social security number, employment dates, and job categories. NIOSH then would seek to determine the vital status of each individual and the cause of death in the case of deceased individuals and the health status of living individuals. Towards these ends, all employment and medical records of current and former Belle employees are relevant and necessary. A death certificate for each deceased employee would also be obtained and coded in accordance with standard disease classification procedures."

Dr. Finklea goes on to state that this information will assist NIOSH in determining whether a statistical basis is present to conclude that the rate of cancer among du Pont's past and present employees is job related.

Prior to the February 7, 1977, service of the second subpoena duces tecum, and apparently in anticipation thereof, du Pont on February 4, 1977, corresponded by letter with approximately 3,000 of its past and present Belle employees, requesting each to indicate on an enclosed waiver form whether or not that employee consented to the disclosure of his respective medical records. Of the employees who responded, 1,717 gave their consent to the proposed disclosure, while 631 refused.

Du Pont declined to comply with those portions of the subpoenas which would require du Pont to unilaterally disclose to NIOSH the medical records of the 631 past and present employees who refused to consent to such disclosure.

This action was therefore instituted on February 8, 1977, with the original petition asking this Court to declare whether du Pont was required to comply with the subpoenas duces tecum. The amended petition additionally asked the Court to declare that the subpoenas duces tecum were invalid and unenforceable.

This action is presently before the Court on cross-motions for summary judgment for a determination of the respective rights and duties of the opposing parties.

Read in pari materia, the provisions of 29 U.S.C. §§ 657 and 669 give to the Secretary, and accordingly NIOSH, the authority to issue the instant subpoenas duces tecum to procure from du Pont the records du Pont was requested to produce. When such authority exists, an administrative agency, including NIOSH, may seek enforcement of an administrative subpoena duces tecum in the district court. In the district court, enforcement may be sought if (1) the inquiry is within the scope of authority of the agency; (2) the demand is not too indefinite; and (3) the information sought is reasonably relevant to the authorized inquiry. United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). The record reflects that these criteria have been satisfied.

Section 20(a)(6) of the Act, 29 U.S.C. § 669(a), authorizes the Secretary to determine, following a written request by an employer or authorized representative of any employee specifying with reasonable particularity the grounds on which the request is made, whether any substance normally found in a place of employment has potentially toxic effects in such concentration as was found. The request in the instant case centered around allegations that there is an unusually high incidence of cancer among the employees at the Belle plant. Without belaboring the obvious, we conclude that an investigation made pursuant to such allegations is well within the authority of NIOSH, and du Pont does not seriously contend otherwise. That being the case, the Court would conclude, a fortiori, that the...