Phillips-DeLoatch v. Sec'y of Health & Human Servs.
| Decision Date | 02 April 2012 |
| Docket Number | No. 09-171V,09-171V |
| Parties | ZENORIA PHILLIP S -DELOATCH, As Personal Representative of the Estate of MOSHELLA F. ROBERTS, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Vaccine case; Petition for mandamus to
review order by special master denying
discovery; Availability of mandamus to
review discovery orders; Petition denied.
ORDERAltom Michael Maglio, Maglio Christopher and Toale, Sarasota, FL, for petitioner.
Debra A. Filteau Begley, United States Department of Justice, Washington, D.C., with whom was Acting Assistant Attorney General Tony West, for respondent.
Dino S. Sangiamo, Venable, LLP, Baltimore, MD, for Merck & Co., Inc.
Petitioner, via this mandamus petition, seeks an order directing Special Master Christian Moran to allow her to subpoena information from the pharmaceutical company thatmanufactures the vaccine that allegedly killed the decedent in this case. For the reasons that follow, the court DENIES the mandamus petition.
The facts relevant to this petition are not in dispute.
Moshella Roberts was born in 1987. On April 1, 2008, she was administered a dose of the Gardasil HPV vaccine. On April 5, 2008, she was found dead. A subsequent autopsy failed to determine the cause of death.
On March 19, 2009, Zenoria Phillips Deloatch filed a petition as personal representative of Ms. Roberts' estate, seeking compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1-34 (2006) (the Vaccine Act). On May 26, 2009, petitioner filed a motion seeking authorization to subpoena Merck & Co. (Merck), which manufactures the Gardasil vaccine. In particular, she requested that the Special Master require Merck to produce documents relating to any sudden deaths temporally related to the vaccine or discussing a possible biological mechanism by which the vaccine could cause or trigger sudden death.
On June 30, 2009, Special Master Moran approved the issuance of the subpoena. On August 19, 2009, Merck filed a motion to vacate and quash the subpoena. Following briefing and oral argument, on April 27, 2010, the Special Master granted the requested relief, finding that petitioner had failed to show that the discovery was "reasonable and necessary," as required by the Vaccine Act.2 The Special Master afforded petitioner an opportunity to renew her discovery motion pursuant to this standard. On November 8, 2010, petitioner filed a renewed motion for subpoena. On September 20, 2011, the Special Master issued an order denying that motion.
On October 31, 2011, petitioner petitioned this court for a writ of mandamus directing the Special Master to authorize the subpoena of Merck. On January 31, 2012, Merck filed an opposition to the motion by leave of the court. Briefing by all parties is now complete. Argument is deemed unnecessary.
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), "all courts established by Act of Congress" have the authority to issue writs, such as mandamus, as "necessary or appropriate in aid of" its jurisdiction. Miss. Chem. Corp. v. Swift Agric. Chems. Corp., 717 F.2d 1374, 1379 (Fed. Cir. 1983). This court, of course, was established by an Act of Congress and thus may issue writs of mandamus in aid of its jurisdiction under the Vaccine Act. See Warfle ex rel. Guffey v. Sec'y of Health and Human Servs., 92 Fed. Cl. 361, 367 n.9 (2010); see also Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) (). None of the parties disputes this.
Nevertheless, the use of mandamus is limited to exceptional circumstances to correct a "clear abuse of discretion or 'usurpation of judicial power' by the trial court." Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953) (quoting DeBeers Consol. Mines v. United States, 325 U.S. 212, 217 (1945); see also Gulfstream Aerospace Corp v. Mayacamas Corp., 485 U.S. 271, 289 (1988); In re United States, 669 F.3d 1333, 1336 (Fed. Cir. 2012). The burden is on the petitioner to establish that her right to issuance of the writ is clear and indisputable, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980), and that there is no other adequate remedy to attain the desired relief, Mallard v. United States District Court, 490 U.S. 296, 309 (1989).
That burden is particularly difficult to meet when the decision under review involves a discovery matter. Indeed, the cases denying review of discovery orders by mandamus are legion. See 6 James Wm. Moore, § 26.37 (2011) (); 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3935.3 (2d ed. 2011). This is not surprising as decisions concerning the scope of discovery are generally committed to the ruling tribunal's discretion. See Am. Standard, Inc. v. Pfizer, Inc., 828 F.2d 734, 739 (Fed. Cir. 1987); Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984). "Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is 'clear and indisputable.'" Allied Chemical, 449 U.S. at 36. As a result, courts have expressed extreme reluctance to circumvent the salutary rule barring interlocutory review of discovery orders by use of mandamus, except perhaps in rare situations in which discovery would wrongfully expose privileged or confidential communications.3 The latter circumstance,of course, is wholly lacking where, as here, the order under consideration denies, rather than grants, discovery. See, e.g., In re Macphee, 36 Fed. Appx. 421, 422-23 (Fed. Cir. 2002) (); In re Anonymous Online Speakers, 661 F.3d 1168, 1178 (9th Cir. 2011) (); City of Cleveland v. Krupansky, 619 F.2d 572, 574-75 (6th Cir.), cert. denied, 449 U.S. 834 (1980) (); Donnelly v. Parker, 486 F.2d 402, 408-09 (D.C. Cir. 1973) ().
Petitioner has not shown, nor is the court able to perceive, anything that would set her case apart from those cited above. In particular, petitioner has cited no reason why she cannot obtain adequate and meaningful relief of the special master's discovery order on appeal, after a final decision. Although petitioner argues that she will be unable to present a proper record on appeal without this court's immediate intervention and that she wishes to avoid a piecemeal appeal, such arguments have been held insufficient to warrant mandamus relief. "That a petitioner may suffer hardship, inconvenience, or an unusually complex trial does not provide a basis for a court to grant mandamus." In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed. Cir. 2008); see also Bankers Life, 346 U.S. at 383; United States v. Watson, 603 F.2d 192, 196-97 (C.C.P.A. 1979). The simple fact remains that, should she ultimately lose, petitioner will still be able to argue about the propriety of the special master's discovery determinations on review of the decision. As petitioner has an adequate remedy, she has not met her burden to obtain a writ of mandamus.4
Based on the foregoing, the petition for mandamus is hereby DENIED.
IT IS SO ORDERED.5
________________
Francis M. Allegra
1. An unredacted version of this opinion was issued under seal on April 2, 2012. The parties were given an opportunity to propose redactions, but no such proposals were made. Nonetheless, the court has incorporated some minor changes into this opinion.
2.In so ruling, the Special Master found that petitioner had "fail[ed] to explain how the requested information would help meet her burden of proof with regard to any prong [of the causation test in] Althen [v. Sec'y of Health and Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)]." Deloatch ex rel. Estate of Roberts v. Sec'y of...
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