U.S. v. Westinghouse Elec. Corp.

• Decision Date: 21 October 1980
• Docket Number: No. 80-1269,80-1269
• Citation: 638 F.2d 570
• Parties: 8 O.S.H. Cas.(BNA) 2131, 1980 O.S.H.D. (CCH) P 24,879 UNITED STATES of America v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 570

638 F.2d 570

8 O.S.H. Cas.(BNA) 2131, 1980 O.S.H.D. (CCH) P 24,879

UNITED STATES of America v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant.

No. 80-1269.

United States Court of Appeals Third Circuit.

Argued June 11, 1980.

Decided Oct. 21, 1980.

Charles R. Volk (argued), Richard R. Riese, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellant; Stuart I. Saltman, Chief Labor Counsel, Westinghouse Elec. Corp., Pittsburgh, Pa., of counsel.

Alice Daniel, Asst. Atty. Gen., Robert J. Cindrich, U. S. Atty., Leonard Schaitman, Alfred Mollin (argued), Attys., Civil Division, Dept. of Justice, Washington, D. C., for appellee; Howard Walderman, Glen Drew, Attys., Dept. of Health, Ed. & Welfare, Rockville, Md., of counsel.

Before HUNTER, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

In this case, we attempt to reconcile the privacy interests of employees in their medical records with the significant public interest in research designed to improve occupational safety and health.

The National Institute for Occupational Safety and Health (hereinafter NIOSH) was established by the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq. (1976). NIOSH has the authority to "develop and establish recommended occupational safety and health standards," 29 U.S.C. § 671(c)(1), and to conduct research concerning occupational safety and health, 29 U.S.C. §§ 671(c)(2), 669. In particular, it has the authority to conduct a health hazard evaluation, which entails an investigation to

determine following a written request by any employer or authorized representative of employees, specifying with reasonable particularity the grounds on which the request is made, whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found.

29 U.S.C. § 669(a)(6).

On February 22, 1978, NIOSH received a written request for a health hazard evaluation from an officer of the International Union of Electrical Workers, Local 601, an authorized representative of the employees at Westinghouse Electric Corporation's plant in Trafford, Pennsylvania. The Trafford plant manufactures, inter alia, electric insulators by means of an epoxy mold process. The complaint concerned two areas in the Trafford plant, the "bushings aisle" or TC-72, and the "epoxy aisle" or TC-74, and alleged that workers were suffering allergic reactions as a result of exposure to methyl ethyl ketone. The Director of NIOSH initiated an investigation pursuant to his authority under 29 U.S.C. § 669(a)(6).

On April 21, 1978, an industrial hygienist and two physicians employed by NIOSH performed a walk-through inspection. They determined that the conditions which led to the complaint concerning TC-72 had been remedied and no further evaluation of that area was required. However, although methyl ethyl ketone was found not to be a potential health hazard, hexahydrophthalic anhydride, or HHPA, was used in significant quantities in TC-74, and the physicians suspected that it might be causing allergic reactions in some workers. The physicians therefore recommended that environmental and medical testing be done regarding the presence and effect of HHPA in the TC-74 area.

Dr. Thomas Wilcox, a Medical Project Officer in the Hazard Evaluation and Technical Assistance Branch of NIOSH, and G. Edward Burroughs, an industrial hygienist, visited the site and requested access to the company's medical records of potentially affected employees in the TC-74 area. A Westinghouse official replied that access would be difficult because the records were considered confidential. ¹

On December 28, Wilcox sent written notice to Westinghouse that the health hazard evaluation would be conducted in January, 1979. He requested a list of present TC-74 employees and of past TC-74 employees working elsewhere in the plant, access to the medical records of these employees and of other employees with intermittent exposure to the TC-74 area who were willing to participate in the evaluation, and an outline of the routine procedures for health monitoring of TC-74 employees. Westinghouse supplied a list of present TC-74 employees maintained that it could not supply a list of its present employees no longer working on that aisle, denied access to the medical records, and did not inform NIOSH concerning the health monitoring procedures.

Thereafter, the Director of NIOSH issued a subpoena duces tecum to Westinghouse's custodian of records at the Trafford plant, requiring the production of "(m)edical records of all employees presently employed in the TC-74 area and the medical records of all employees who formerly worked in the TC-74 area and who now work elsewhere in the plant." Westinghouse refused to honor the subpoena.

Meanwhile, Wilcox performed blood tests and pulmonary function tests and conducted medical interviews with a majority of the present TC-74 employees. He found detectable levels of HHPA antibodies in 12 out of 28 employees tested. Several of these employees complained of allergic symptoms while in or near the TC-74 area. Some employees' lung capacity was less than that which would be expected for persons of their age, height, sex and race. A summary of Wilcox's preliminary findings was distributed to Westinghouse and to TC-74 employees in March 1979. Each employee participating in the study also received his or her own laboratory results and a personal letter from Wilcox explaining their medical significance.

Wilcox repeated his request for the employees' medical records maintained by Westinghouse. In reply, Westinghouse informed NIOSH that it would supply those records (1) if the employees provided "written informed consent" authorizing Westinghouse to supply the records and (2) if Westinghouse was "provided with written assurance by the United States Government that the contents of these records will not be disclosed to third parties."

NIOSH then filed this action in the district court seeking an order to enforce its subpoena. Following a hearing, the district court granted NIOSH's petition and ordered full enforcement of the subpoena. United States v. Westinghouse Electric Corp., 483 F.Supp. 1265 (W.D.Pa.1980). The court found that the subpoena therefore met all the requirements for enforcement of an administrative subpoena outlined in United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). The court rejected Westinghouse's claim that the information was protected from disclosure, holding that even if Westinghouse had asserted a physician-patient privilege it would have been to no avail because "(n)o physician-patient privilege exists as a matter of federal common law" and Pennsylvania's physician-patient privilege was too narrow to cover this material since it applied only to communications which would blacken the patient's reputation. The court relied instead on Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and E. I. duPont de Nemours & Co. v. Finklea, 442 F.Supp. 821 (S.D.W.Va.1977), which upheld an agency's authority to view medical records needed in the public interest. The court also found that Westinghouse had not demonstrated that individually identifiable medical records would be improperly disclosed, and that NIOSH's procedures of safekeeping the records and of removing the names and addresses of the individuals in its compilation of published data provided sufficiently adequate assurance of non-disclosure. Westinghouse filed this appeal, and enforcement of the order was stayed pending disposition of the appeal.

II.

Although the government does not challenge Westinghouse's standing to assert its employees' privacy interests before us, ² we raise that issue sua sponte.

The modern law of standing was the subject of a comprehensive review in our recent decision in Americans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252 (3d Cir. 1980). There, we noted that no more is required "than an allegation that the challenged official action has caused the plaintiff 'injury in fact, economic or otherwise.' " Id. at 256. This requirement is based on the necessity that the plaintiff have such a "personal stake in the outcome" of the controversy to assure " 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for elimination of difficult ... questions.' " Id., quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Without intimating any general rule about an employer's ability to vindicate the rights of its employees in other situations, ³ under the circumstances of this case Westinghouse has the necessary concrete adverseness to present the issues. The subpoena at issue is directed to Westinghouse and requires production of documents in its possession. Failure to comply with the subpoena will subject it to the penalty of a contempt sanction. Furthermore, it has an ongoing relationship with its employees and it asserts that an adverse decision on the merits of the constitutional claim regarding employee privacy may adversely affect the flow of medical information which it needs from them. ⁴ As a practical matter, the absence of any notice to the employees of the subpoena means that no person other than Westinghouse would be likely to raise the privacy claim. Indeed, this claim may be effectively lost if we do not hear it now.

We see no basis for concern here that Westinghouse will make anything less than a vigorous defense of the right to privacy with the necessary degree of adverseness to the government's position. See Baker v. Carr, supra. Since the underlying prudential bars to standing are absent, we conclude that Westinghouse has demonstrated sufficient interest in the litigation to have standing to be heard on the merits of its arguments concerning both the validity of the subpoena and whether its employees have any...