Pennsylvania Attorney General Linda Kelly on Tuesday filed a motion to dismiss a lawsuit alleging that Act 13, the state’s omnibus Marcellus Shale law, has a medical “gag rule” that violates a doctor’s constitutional rights to communicate with his patients.
Alfonso Rodriguez, a kidney specialist from Luzerne County’s Dallas Township, filed the lawsuit July 27 in U.S. District Court for the Middle District of Pennsylvania. The defendants include Kelly, Department of Environmental Protection (DEP) Secretary Michael Krancer and Public Utility Commission (PUC) Chairman Robert Powelson.
“We have filed a motion to dismiss,” Nils Hagen-Frederiksen a spokesman for Kelly’s office, told NGI’s Shale Daily on Thursday. “Briefs regarding the motion to dismiss, which will have a more detailed argument, will be filed within 14 days.”
In his complaint, Rodriguez said he has treated patients that have been exposed to fluids used in hydraulic fracturing (fracking), from oil and natural gas operations in Luzerne County.
“Exposure to fracking fluid, even at very diluted concentrations, is very dangerous,” Rodriguez’s attorney, Paul Rossi, told the Luzerne Citizens Voice. “It just is. I don’t think anyone disputes that. A blowout is the worst situation because you’re coming in contact with pure fracking fluid.
“They don’t want people to know what they’re putting into the ground. That’s why this medical gag rule is in there. It has nothing to do with proprietary information. None of this is secret to the people in the industry. It’s a secret to the people potentially affected by this toxic brew. It’s to prevent a wider political debate.”
Lawmakers have accused fracking opponents of waging a misinformation campaign over Act 13. In April, Pennsylvania House Speaker Sam Smith (R-Punxsutawney) called opponents’ claims that there was a gag order “outrageous” (see Shale Daily, April 16). Other groups that backed the law include the Chesapeake Bay Foundation, Pennsylvania Environmental Council and the Marcellus Shale Coalition.
At issue are portions of Section 3222 of Act 13 that list the circumstances where disclosure of the fracking chemicals is required and not required.
The law states that “if a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential.
“The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.”
On Sept. 10, Judge Richard Caputo granted Kelly’s request for an extension of time to respond to the lawsuit until Tuesday. The case is Rodriguez v. Krancer et al (Docket No. 3:12-CV-1458).
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