Back in 2013, I blogged on a Pennsylvania federal court’s dismissal of a doctor’s complaint challenging the state’s so called “Medical Gag Act,” which aimed to prohibit the disclosure of the chemicals and fluids used by oil and gas companies during fracking operations. Specifically, the renal doctor, Dr. Rodriquez, argued that the state’s Medical Gag rules interfered with his ability to properly diagnose and treat his patients and restricted the free exchange of information required of him under the ethical obligations imposed by the medical profession.

As set forth in my previous post, in October 2013, the District Court dismissed the doctor’s complaint for lack of standing. There, the court explained that to satisfy Article III’s standing requirements, Dr. Rodriquez was required to show: 1) he suffered an injury-in-fact that was a) concrete and particularized and b) actual and imminent; 2) the injury was fairly traceable to the challenged action of the Defendants; and 3) it was likely, as opposed to merely speculative, that the injury would be redressed by a favorable decision. The District Court found that Dr. Rodriquez’s injury was “too conjectural” and “hypothetical” to meet the injury-in-fact element for standing. The Court explained that he failed to assert he had been in a situation where he needed the information or even attempted to obtain the information when treating his patients. Furthermore, he did not claim that he was forced to sign a confidentiality agreement under the Act. As a result of that dismissal, Dr. Rodriquez amended his complaint, which was again dismissed in late June 2014 for lack of standing.

Dr. Rodriquez appealed to the Third Circuit, arguing that the District Court erred in finding he did not have standing to proceed. Dr. Rodriquez emphasized that expert testimony at trial would establish that the Act interfered with his ability to diagnose and treat his patients and would also establish that he is ethically prohibited from signing any confidentiality agreements imposed by the Medical Gag rules. Just recently, the Third Circuit issued a decision affirming the District Court’s finding that Dr. Rodriquez had failed to show an injury-in-fact required for standing. Notably, the Third Circuit found it insufficient to allege, as Dr. Rodriquez had, that expert testimony would substantiate his claims later at trial. Furthermore, while Dr. Rodriquez relied on a Pennsylvania state case finding that doctors have standing to challenge the Act, the Third Circuit emphasized that such reliance was misplaced where the issue was federal – not state – standing requirements.

As always, we will continue to monitor and report on notable fracking related issues.