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Andrew Speaker vs. CDC: Speaker’s Lawsuit Dismissed …. Again

posted on Thu, Mar 22 2012 9:29 am by Denise Chrysler

This is round three of Andrew Speaker’s lawsuit against the Centers for Disease Control and Prevention (CDC). Speaker, who got worldwide attention in 2007 after flying overseas while knowing he had tuberculosis, sued the CDC in Federal District Court for violating the federal Privacy Act by disclosing his identity and confidential medical information relating to the treatment of his tuberculosis. Speaker claimed that CDC had directly disclosed his identity. Alternatively, he claimed that even if CDC had not identified him directly, it did so indirectly by providing sufficient details about him that the media was able to use – along with its other sources – to publicly identify him. These CDC disclosures included details of his medical history and his alleged medical condition (including a detailed timeline of his medical treatment), details of his profession and residence, details of the purpose of his trip (to Greece to get married) and details of his flights.

Round 1: On November 23, 2009 the District Court dismissed Speaker’s lawsuit for failure to state a cause of action. [Speaker vs. HHS and CDC, 680 F.Supp.2d 1359, 1369-70 (N.D.Ga.2009)]. In this regard, the court found that Speaker alleged no specific facts establishing that a CDC employee or agent revealed Speaker’s identity. If a news agency identified Speaker, it was because it discovered Speaker’s identity using other information sources. For example, Speaker’s identity could have been revealed by state or local public health agencies, law enforcement, health care providers or others who knew it. The District Court also rejected Speaker’s claim that CDC violated the Privacy Act by releasing detailed information about him. The court held that information provided by CDC had a public health purpose, that it was not identifying and that CDC did not violate its responsibility to protect privacy just because the press was able to use information that it obtained from multiple sources to publish Speaker’s identity. The court observed: “If releases at issue here were to constitute a Privacy Act violation as Speaker alleges, it would severely inhibit the reasonable and appropriate conduct of public health officials responding to possible public health emergencies.”

Round 2: Speaker appealed, and the United States Court of Appeals, Eleventh Circuit, reversed in an opinion issued on October 22, 2010. The Court of Appeals ruled that Speaker sufficiently alleged in his amended complaint that CDC itself made the disclosure of his identity. Thus, Speaker was entitled to discovery and an opportunity to try to prove his claim. The court did not reach the legal issues “of whether the CDC disclosed enough, or the requisite type of, identifying particulars to constitute a Privacy Act violation, which in turn caused the press to identify him.” There had been no discovery and the court concluded that those issues are better addressed once the parties have had a chance to develop the record. The Court of Appeals remanded the case to the District Court for further proceedings.

Round 3: On March 14, 2012, in a 60 page opinion, the District Court once again dismissed Speaker’s lawsuit. Instead of general allegations, Speaker claimed that his name was disclosed by a specific CDC employee within the CDC’s media relations office. However, after discovery, Speaker was unable to present evidence that supported his claim. In fact, there was evidence that Speaker had identified himself to the press prior to the publication of his name in the media. Thus, the court granted summary judgment to CDC based on Speaker’s failure to show a genuine dispute of material facts to support his claim. Speaker abandoned his previous claim that CDC’s disclosure of information other than his identity “enabled the media to ascertain his name” so the court did not address this issue. During the course of the litigation the CDC employee who had allegedly disclosed Speaker’s identity deleted emails that included those from the time in question, even though CDC employees had been notified that they must preserve all information related to the lawsuit. These emails were deleted in response to repeated warnings from technology support that the employee’s email account had exceeded its storage capacity. Ultimately, the court ruled that Speaker failed to offer any proof that relevant evidence existed that was subsequently destroyed. However, this is a lesson to harried workers who are short on resources and storage capacity to pay attention lest they jeopardize their case or suffer sanctions. Finally, the court rejected Speaker’s claim that the CDC violated the Privacy Act by maintaining and disseminating inaccurate, irrelevant or unnecessary information about him to increase funding for its TB programs by publicizing the public health threat that TB posed.

Round 4: Unknown. Speaker has the right to appeal the March 14 decision to the federal Court of Appeals. Stay tuned.

This information was developed by Denise Chrysler, director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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