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Hazlehurst v. Centers For Disease Control

United States District Court, W.D. Tennessee, Eastern Division

July 18, 2017




         On February 10, 2017, Plaintiff Rolf Hazlehurst filed a complaint seeking judicial review of the final agency action of the Centers for Disease Control and Prevention (“CDC”), denying his request for permission to depose Dr. William Thompson, an employee of the CDC. (ECF No. 1.) The complaint was filed pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. Plaintiff contends that the denial of his request was arbitrary and capricious. Plaintiff seeks a judgment declaring that he may depose Dr. Thompson and an injunction prohibiting the CDC from stopping the deposition.[1]

         At a scheduling conference held on May 1, 2017, the parties agreed that the matter should be decided on the briefs, and a joint administrative track scheduling order was entered that same day. (ECF Nos. 25, 26.) On May 15, 2017, Defendant CDC filed a copy of the administrative record. (ECF No. 27.) Defendant has filed a motion for summary judgment (ECF No. 28), and, in response, Plaintiff filed a cross-motion for summary judgment. (ECF No. 30.) Defendant has filed its response to Plaintiff's cross-motion. (ECF No. 35.) Additionally, Plaintiff has filed a motion to supplement the administrative record. (ECF No. 29.) Defendant has filed a response opposing Plaintiff's motion to supplement.[2] (ECF No. 34.)

         For the reasons set forth below, Defendant's motion for summary judgment is GRANTED, Plaintiff's cross-motion for summary judgment is DENIED, and Plaintiff's motion to supplement the administrative record is DENIED.


         Pursuant to 5 U.S.C. § 301, a federal agency may enact procedures for responding to subpoenas and other requests for testimony. Agencies may “prescribe regulations of the government of [its] department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” Id. These regulations are known as Touhy regulations, and requests made under them are called Touhy requests. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (upholding agencies' authority to create such regulations). “When a litigant seeks to obtain documents from a non-party federal governmental agency, ” for use in a state court action, the “state-court litigant must request the documents from the federal agency pursuant to the agency's [Touhy] regulations . . . . If the agency refuses to produce the requested documents, the sole remedy for the state-court litigant is to file a collateral action in federal court under the APA.” Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir. 2012) (quoting Houston Bus. Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208, 1211-12 (D.C. Cir. 1996)).

         The Touhy regulations of the Department of Health and Human Services (“DHHS”) are found at 45 C.F.R. §§ 2.1-2.6.[3] Section 2.1 provides in pertinent part that the “availability of Department employees to testify in litigation not involving federal parties is governed by the Department's policy to maintain strict impartiality with respect to private litigants and to minimize the disruption of official duties.” 45 C.F.R. § 2.1(b). Additionally:

No employee or former employee of the DHHS may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the person's official relationship with the Department unless authorized by the Agency head pursuant to this part based on a determination by the Agency head, after consultation with the Office of the General Counsel, that compliance with the request would promote the objectives of the Department.

45 C.F.R. § 2.3. The procedures under which a party may request the testimony of a DHHS employee are set forth in Section 2.4(a):

All requests for testimony by an employee or former employee of the DHHS in his official capacity and not subject to the exceptions set forth in § 2.1(d) of this part must be addressed to the Agency head in writing and must state the nature of the requested testimony, why the information sought is unavailable by any other means, and the reasons why the testimony would be in the interest of the DHHS or the federal government.

45 C.F.R. § 2.4(a). Thus, a party requesting testimony from a current DHHS employee, such as Dr. Thompson, must state in writing: (1) the nature of the testimony sought; (2) why it is unavailable through other means; and (3) why the testimony would be in the interest of the DHHS or the federal government.

         On September 9, 2016, Plaintiff sought permission to depose Dr. Thompson, pursuant to the Touhy regulations of the DHHS. Plaintiff sought testimony from Dr. Thompson as part of his medical malpractice action against The Jackson Clinic Professional Association (“the Jackson Clinic”) and Dr. E. Carlton Hays pending in the Circuit Court of Madison County, Tennessee.[4]Plaintiff alleges that certain violations of the applicable standard of care by Dr. Hays and the Jackson Clinic in the administration of vaccines to his son caused his son to develop autism.

         As part of his duties as a CDC employee, Dr. Thompson co-authored a 2004 study entitled Age at First Measles-Mumps-Rubella Vaccination in Children with Autism and School-matched Control Subjects: A Population-Based Study in Metropolitan Atlanta (“the MMR Study”). Plaintiff contends that Dr. Thompson's deposition is necessary because the state court defendants are relying on the MMR Study to show that their alleged negligence was not a cause-in-fact of Plaintiff's son's autism. According to Plaintiff, Dr. Thompson's deposition testimony may cast doubt on the validity of the data used in the MMR Study and whether the assumptions and conclusions drawn from that data are reliable.

         Dr. Thompson had no involvement in the facts giving rise to the state court litigation and cannot be deposed as a fact witness. Neither Dr. Thompson nor the CDC is a party to the state court action.

         On September 22, 2016, CDC Director Thomas R. Frieden denied Plaintiff's Touhy request on the grounds that (1) the information Plaintiff seeks from deposing Dr. Thompson is available by other means; (2) Plaintiff's request failed to adequately explain how Dr. Thompson's deposition in private litigation would promote the objectives and interests of the DHHS or the CDC; and (3) compliance with Plaintiff's request would disrupt DHHS operations by requiring a current CDC employee to forego his official duties to participate in private litigation, which would hinder the CDC's ability to control the spread of infectious diseases and compromise its impartiality in future state court litigation, investigations, and lawsuits. Director Frieden consulted with the Office of the General Counsel prior to making his decision.

         Plaintiff filed this action on February 10, 2017, seeking review of ...

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