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UNITED STATES v. WESTINGHOUSE ELEC. CORP.

January 31, 1980

UNITED STATES of America
v.
WESTINGHOUSE ELECTRIC CORPORATION.



The opinion of the court was delivered by: ROSENBERG

The petitioner, United States of America, moves for an order under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(b) *fn1" directing the respondent, Westinghouse Electric Corporation, to produce certain documents in accordance with a subpoena duces tecum *fn2" issued by the Director of the National Institute for Occupational Safety and Health (NIOSH), a division of the Department of Health, Education and Welfare.

The respondent, Westinghouse Electric Corporation, resists compliance with the subpoena duces tecum for the production of personnel records of employees requested by the petitioner on the basis that the employer would be compelled to intrude upon the personal privilege of the employees by divulging such medical records.

 The matter came on for hearing before the court without a jury, during which both parties introduced evidence on the issues presented by both parties. Thereupon, briefs were presented by the parties on the issues of law, and after examination of the record and consideration of the evidence presented, I make the following findings of fact thereon.

 On February 22, 1978, NIOSH received a written request for a Health Hazard Evaluation from an authorized representative of the employees of the respondent, Westinghouse, at the Trafford, Pennsylvania plant complaining that there was exposure to methyl ethyl ketone and other harmful substances among workers in the "TC-72" and "TC-74" areas. In response, the NIOSH Director, pursuant to 29 U.S.C. § 669(a)(6) *fn3" , commenced an inquiry to determine whether any substance normally found in the specified, complained places of employment had potentially toxic effects in such concentration, as used, upon any employees and accordingly arranged for a site visit.

 On April 21, some physicians performed a walkthrough and after their inspection, pursuant to the Standard Health Hazard Evaluation request submitted by the employees' authorized representative, the physicians reported that there were only two areas that were requested to be evaluated, where there was a potential for respiratory problems the bushing area, TC-72 and the epoxy area, TC-74. They recommended that the exposed people in the TC-74 area undergo further testing, as was essentially performed later by Dr. Thomas Wilcox, a medical officer in the Hazard Evaluation and Technical Assistance Branch of NIOSH. These were the providing of tests for the presence of antibody in the blood to the substance hexahydrophthalic anhydride (referred to as HHPA).

 It is necessary that the experts making the study make findings in the HHPA potential causes with allergic reactions in a certain number of individuals exposed to it, which in some individuals caused a condition of asthma, possible occupational asthma induced by chemical exposure received at work. Also, this study would be required to determine whether other chemicals caused occupational asthma snydromes accelerating decrease in a person's ability to breathe. While the effects may be variable from slight to serious, individuals who are allergic to HHPA may gradually develop the snydrome and over a period of time develop breathing difficulties affecting them in their everyday life.

 On October 19, Dr. Wilcox and G. Edward Burroughs, an industrial hygienist employed by NIOSH, visited the Westinghouse facility and informed the respondent's Director of Accident Prevention, Gerald Brady, that access would be needed to complete medical records of potentially affected employees working in the complained of areas. While the respondent's representative questioned its right to present NIOSH with the records of the potentially affected employees, certain employees examined during the Health Hazard Evaluation, before and after their work days, indicated that pulmonary function and blood tests had been performed on workers in the TC-74 area.

 The employee representative complained of exposure to methyl ethyl ketone and other harmful substances in the specified employment areas. The inquiry by NIOSH's Director was more broadly instituted and was intended to inquire whether any substance normally found in the specified place of employment had potentially toxic effects in such concentration as used in the employment areas as to affect such employees. Thus, while the employees mentioned methyl ethyl ketone, the investigation, must of necessity, have included "other harmful substances."

 Methyl ethyl ketone is a "flammable liquid compound CH 3COC 2H 5 resembling acetone made usually by dehydrogenation of secondary butyl alcohol and used chiefly as a solvent . . ." Webster's New Third International Dictionary, Unabridged, 1971, at page 1423.

 There are evidently twelve ketones, *fn4" some of which have a wide and varied use in industry, "(Criteria) for a recommended standard . . . Occupational Exposure to Ketones", U.S. Department of Health, Education and Welfare, National Institution for Occupational Safety and Health, document for sale by Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402.

 It is with the medical records of those employees who were, may now, or in the future be affected and who are, in a sense, clues and facts required by the petitioner to accomplish its study for the purposes which Congress has imposed on it and for such study.

 As relates to the personal medical records, the respondent admits that it refused to supply these to the petitioner, without (1) individual employee authorization for such a release, and (2) written government assurance that these records will not be disclosed to third parties conditions to which the petitioner would not agree. The respondent argues that the subpoena is presently unenforceable because disclosure of such personally identified medical records breaches the constitutionally protected right to privacy of the employees in the absence of employee consent and adequate prohibitions upon further dissemination of the information received. The respondent asserts that NIOSH has not demonstrated authority for the issuance of the subpoena and has not defined its demand with requisite specificity, nor that it has proven that its request for the entire medical records of the potentially affected employees is relevant and not overbroad. Finally, the respondent claims that NIOSH has violated its own regulations governing the conduct of Health Hazard Evaluations by seeking to compel the production of the medical records.

 The common law recognizes no physician-patient privilege, nor do the federal courts as a general evidentiary principle. In re Grand Jury Subpoena, 460 F. Supp. 150 (W.D.Mo.1978); Mariner v. Great Lakes Dredge & Dock Co., 202 F. Supp. 430 (N.D.Ohio, 1962). If the respondent is to prevail in its objections to the petitioner's subpoena duces tecum, it must do so on pertinent authority of Pennsylvania law, or upon specific holdings by the federal courts. The Pennsylvania statute which relates to the doctor-patient privilege is contained in 28 Purdon's Penn.Stats. § 328. *fn5" However, that statute relates directly to communications made by a ...


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