M. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: November 17, 2021

* * * * * * * * * * * * * * * E.M., * UNPUBLISHED

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Petitioner, * No. 18-1153V v. *

* Special Master Dorsey SECRETARY OF HEALTH * AND HUMAN SERVICES, * Motion for Redaction.

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Respondent. *

* * * * * * * * * * * * * * * Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Catherine Elizabeth Stolar, US Department of Justice, Washington, DC, for respondent.

ORDER GRANTING PETITIONER’S MOTION FOR REDACTION 1 On November 8, 2021, petitioner filed a motion to redact the undersigned’s October 26, 2021 Decision Based on Stipulation. Petitioner’s Motion for Redaction (“Pet. Mot.”), filed Nov. 8, 2021 (ECF No. 92). For the foregoing reasons, petitioner’s motion is GRANTED. I. RELEVANT PROCEDURAL HISTORY

On August 8, 2018, E.M. (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program. 2 Petitioner alleged that as a result of an influenza (“flu”) vaccine on October 13, 2016, she developed an allergic reaction and related sequelae, including but not limited to hypersensitivity dermatographism, fatigue, myalgia, ocular itching and swelling, exertional dyspnea, anxiety, and parethesias. Amended (“Am.”) Petition at 1, 1 n.2 (ECF No. 56).

On October 26, 2021, the undersigned issued a decision based on stipulation. Decision Based on Stipulation dated Oct. 26, 2021 (ECF No. 91). On November 8, 2021, petitioner filed a motion to redact her name to initials in the decision. Pet. Mot. at 1. In support of this request, petitioner states her “financial information is extremely personal, and she requests that this financial information remain private.” Id. at 3. “Petitioner further worries that disclosure of her name, coupled with the financial details of her settlement agreement, could attract unwanted attention to her home and identity.” Id. at 3-4. She explains that she “has a family member who has engaged in a pattern of online harassment since 2009,” which “has caused her great emotional distress over the years, and she is careful to keep her online presence as private as possible.” Id. at 4.

Respondent filed a response on November 9, 2021, outlining the standards for a motion for redaction and “defer[ring] to the sound discretion of the special master to determine what remedy strikes the appropriate balance between the public and private interests in this instance. Respondent’s Response to Pet. Mot. (“Resp. Response”), filed Nov. 9, 2021, at 4 (ECF No. 93). Petitioner did not file a reply.

This matter is now ripe for adjudication.

II. DISCUSSION

A motion for redaction is governed by section 12(d)(4)(B) of the Vaccine Act. See § 12(d)(4)(B). That section provides that information concerning “medical files and similar files” may be redacted if its disclosure “would constitute a clearly unwarranted invasion of privacy.” Id. What constitutes a “clearly unwarranted invasion of privacy” requires balancing petitioner’s “right of privacy against the public purpose of the Vaccine Act.” W.C. v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 440, 460 (2011), aff’d, 704 F.3d 1352 (Fed. Cir. 2013). While a petitioner has an interest in keeping sensitive medical or other embarrassing information private, the public has an interest in disclosure, so as to increase public awareness of vaccines and the medical conditions they may or may not cause. Id. at 461. In other words, sensitive information is often the subject of the litigation, and “in cases where sensitive information is the subject of the dispute, that information is routinely disclosed in decisions, to enable the reader to follow and understand the decision maker’s rationale.” Castagna v. Sec’y of Health & Hum. Servs., No. 99-411V, 2011 WL 4348135, at *13 (Fed. Cl. Spec. Mstr. Aug. 25, 2011).

Although the Vaccine Rules make mandatory the redaction of a minor’s name, adult petitioner’s names, which are not similarly protected automatically, may also be redacted if the petitioner establishes proper grounds for redaction. See R.V. v. Sec’y of Health & Hum. Servs., No. 08-504V, 2016 WL 3776888, at *2 (Fed. Cl. Spec. Mstr. May 10, 2016) (“[A] petitioner needs to make some showing to justify the relief of redaction; redaction is not available simply at a petitioner’s beck and call.”). The undersigned will permit redaction in cases, such as this, where a specialized showing is made.

The facts and circumstances of this case warrant redaction of petitioner’s name to initials. Petitioner made an adequate showing for redaction. Accordingly, petitioner’s motion for redaction of her name in the decision to initials is GRANTED.

Thus, the public version of the decision based on stipulation shall be redacted to include only petitioner’s initials, E.M. Moreover, the undersigned further directs the clerk to amend the case caption 3 to the following: * * * * * * * * * * * * * * * E.M., *

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Petitioner, *

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v. *

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

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IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master