JOHN
DOE, a
SEPTA employee, Appellee, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA), and JUDITH PIERCE, individually and in her official capacity, Appellants.
No. 95-1559
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
72 F.3d 1133;
1995 U.S. App. LEXIS 36983;
11 BNA IER CAS 417;
19 E.B.C. 2721
October 11, 1995, Argued
December 28, 1995, Filed
PRIOR HISTORY:
[**1] Appeal from the Orders of the United States Court for the Eastern District of
Pennsylvania. D.C. No. 93-cv-5988.
COUNSEL: Clifford A. Boardman (argued), Two Penn Center, Suite 1920, Philadelphia, PA
19102, Yolanda Lollis, AIDS Law Project of Pennsylvania, 1211 Chestnut St. 12th
Floor, Philadelphia, PA 19107, Counsel for Appellee.
J. Freedley Hunsicker, Jr. (argued), Drinker, Biddle
& Reath, 1345 Chestnut Street, Philadelphia, PA 19107-3496, Counsel for
Appellants.
JUDGES: Before: Greenberg, Lewis and Rosenn, Circuit Judges.
OPINIONBY: ROSENN
OPINION:
[*1134] OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal requires that we probe the depth and breadth of an employee's
conditional
right to privacy in his
prescription drug records. John
Doe, an employee of the Southeastern Pennsylvania Transportation Authority (SEPTA) n1, initiated this action under
42 U.S.C. § 1983 against his
self-insured
[*1135] employer, alleging that the defendants violated his
right to privacy. Plaintiff claims that, in
monitoring the
prescription drug program put in place by
SEPTA for fraud, drug abuse and excessive costs, the Chief Administrative Officer,
Judith Pierce, and the Director of Benefits, Jacob Aufschauer,
[**2] learned that John
Doe had contracted Acquired Immunodeficiency Syndrome (AIDS). This, he alleges,
invaded his
right to privacy.
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n1
SEPTA is a public transportation authority operating mass transportation facilities
in the five-county Philadelphia metropolitan area. It operates
subways, railroads, buses, and trackless trolleys and maintains stations,
depots, and other installations. See
Transport Workers' Local 234 v. SEPTA, 863 F.2d 1110, 1113 (3d Cir. 1989).
SEPTA receives much of its operating funds from state and federal subsidies. It is
an agency of the Commonwealth of Pennsylvania.
Id., at 1113. The parties agree that all actions taken by Pierce relevant to this matter
were part of her job as a policy-maker at
SEPTA. Therefore, Doe's suit is proper under Section 1983.
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A jury found for the plaintiff and awarded him $ 125,000 in compensatory
damages for his emotional distress. The trial court denied defendants' motion
under Rule 50 for judgment as a
matter of law, or alternatively for a new trial. The
[**3] court also denied defendants' motion for a reduction in damages. The
defendants timely appealed. We reverse.
I.
We set forth the facts as the jury could have found them in support of its
verdict. Accordingly, all evidence and inferences therefrom must be taken in
the light most
favorable to the verdict winner. See
Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993)(as amended on petition for rehearing). In 1990, Judith Pierce became the Chief
Administrative Officer for
SEPTA. Her responsibilities included containing the costs of
SEPTA's
self-insured health program. In 1992, a collective bargaining agreement with Local Union
234 required
SEPTA to provide, inter alia,
prescription drugs for the employees.
SEPTA entered into a contract with Rite-Aid Drug Store to be the sole provider for
all of
SEPTA's
prescription drug programs. As part of this contract, Rite-Aid
provided
SEPTA with an estimate of the yearly costs of this program. If, at the end of the
year, the actual cost to Rite-Aid amounted to over 115% of that estimate,
SEPTA would have to pay substantial penalties; however, if the actual cost was 90%
or less of that estimate,
SEPTA would be entitled
[**4] to rebates. Pierce was responsible for
monitoring those costs.
John
Doe is a
SEPTA employee. At all times relevant to this appeal,
Doe was HIV-positive, and had contracted AIDS by the time of trial. In 1991,
Doe began to take Retrovir for his condition. Retrovir is a
prescription drug used solely to treat HIV. Before filling his
prescription,
Doe asked Dr. Richard Press, the head of
SEPTA's Medical Department and
Doe's direct supervisor, if he or anyone else reviewed employee names in association
with the drugs the employees were taking.
Doe wished to keep his condition a secret from his
co-workers. Dr. Press
assured
Doe that he had only been asked to review names on
prescriptions in cases of suspected narcotics abuse and knew of no other review that
included names. After receiving this information,
Doe filled his
prescription through the employer's health insurance. He continued to do so after
SEPTA switched to Rite-Aid; he was never informed that this change might alter his
confidentiality status.
In November of 1992, Pierce requested and received
utilization reports from Rite-Aid. These reports were part of the contract between
Rite-Aid and
SEPTA. Pierce did not request the names
[**5] of
SEPTA employees in the reports, and Rite-Aid sent the reports in their standard
format. They included statistics on the number of employees with five or more
prescriptions dispensed in a one-month period, the top 25% by cost of drugs bought by
SEPTA employees, and the report at issue here. This report listed employees who were
filling
prescriptions at a cost of $ 100 or more per employee in the past month. Each line of the
report included the name of an employee or dependent, a code to identify the
prescribing doctor, the dispense date of the
prescription, the name of the drug, the number of days supplied, and the total cost. Pierce
called Aufschauer into her office, and the two of them reviewed the report. It
was immediately apparent to Pierce that the reports would reveal employees'
medications; however, she reviewed them in the
format as submitted. She did not at that time request Rite-Aid to redesign
SEPTA's reports to encode employees' names.
Pierce stated that her purpose in reviewing the reports with Aufschauer was
several-fold. First, she wanted to look for signs of fraud and drug abuse. She
testified that in the past, some employees would purchase
[*1136]
prescription drugs under
[**6] the
SEPTA health plan in order to give them to an ill friend or relative who was not
covered by
SEPTA's
benefit package. Second, Pierce wanted to determine if Rite-Aid was fulfilling
its promise to use generic rather than brand name drugs whenever possible.
Third, although they were both covered in the Rite-Aid contract, Pierce wanted
to determine the cost to
SEPTA of fertility drugs and
medications to help employees stop smoking, such as nicotine patches. Finally, Pierce
wanted to determine whether the reports were in a summary form and whether they
would permit an
audit. Her review, however, focused almost entirely on the current report, which
included employees' names. She also testified that people who had seen this
report, she, Aufschauer, and Dr. Press
"were very careful to maintain the confidentiality of the people."
Pierce and Aufschauer scanned the reports. When they came across a drug name
neither one recognized, they would look it up in a Physician's Desk Reference
(PDR) that Pierce had. Pierce then called Dr. Louis Van de Beek, a
SEPTA staff physician, and inquired about the drugs not listed in the PDR. She asked
the doctor for what Retrovir was used. When Dr. Van de Beek
[**7] told her it was used in the treatment of AIDS, she inquired whether there was
any other use for it. He told her no. She then asked about the three other
medications that
Doe was taking, and was informed that they were all AIDS
medications as well. Pierce discreetly never mentioned
Doe by name; however, Dr. Van de Beek was aware of
Doe's condition and
Doe's
medications because
Doe himself had disclosed this information to him. Therefore, Dr. Van de Beek
deduced that Pierce was asking about
Doe. He told her that if she were trying to diagnose employees' conditions through
prescriptions, he felt this was improper and possibly illegal. Pierce immediately ended the
conversation and told him not to speak of the conversation to anyone.
Pierce then took the report to Dr. Press. She asked him if he would be able to
perform an
audit using the
information in the report. Press noted that Pierce had
highlighted certain lines on the report, including employees' names and the drugs that
each of those
highlighted employees were taking. Press testified that the drugs
highlighted were all HIV or AIDS-related. Pierce asked Press if he knew whether any of the
people whose names were
highlighted were
[**8] HIV-positive. Press said that he was aware of
Doe's condition. He then told Pierce that he was uncomfortable with the presence of
the names on the report. He also told her that he had neither the expertise nor
the resources to perform an
audit.
Dr. Press then approached James Kilcur, the General Counsel of
SEPTA, and expressed his concern about the names on the report. Kilcur called Pierce
and asked her whether the names were necessary for her purposes. She replied
that they were not and then destroyed the report.
SEPTA then instructed Rite Aid to submit all future reports without names.
Dr. Van de Beek informed
Doe of Pierce's questions. He told
Doe that Pierce had likely found out that
Doe was HIV-positive.
Doe claims he became upset at this news. He avers that he became more upset upon
discovering from Dr. Press that Pierce had his name
highlighted on a list because he didn't know who had access to or had seen this
"AIDS list" and only a few
SEPTA employees knew of his HIV-status. He had told Press and Van de Beek, as well
as his acting supervisor and the administrative assistant of his department
that he had AIDS. He testified that these were all people he trusted to keep
this
[**9] information
confidential, and he wanted to explain to them his need for periodic leaves of absence. He
did not want Pierce to know of his condition.
After these incidents,
Doe remained at
SEPTA in his current position. He makes no claim of personal discrimination or of
any economic deprivation. He later received a salary upgrade and promotion.
However, he testified that he felt as though he were being treated differently.
A proposal he had made for an in-house employee assistance program met with
scant interest; he felt that this was because of his HIV condition. In
addition, an administrator who reported to Pierce did not call on
Doe to assist in the same way that
[*1137] he had called on
Doe earlier.
Doe testified that he felt as though there was less social chitchat,
co-workers ate less of the baked goods he brought to the office to share, and that his
work space seemed more lonely than before. He also became fearful of Pierce,
who never told
Doe that she knew of his
illness.
Doe alleges that he became depressed and requested a
prescription for Zoloft, an antidepressant, from his physician. Later, another
antidepressant called Elavil was added to the
medications
Doe was taking.
Doe filed
[**10] suit in the United States District Court n2 against Pierce in both her
individual and official capacities, and against
SEPTA. Defendants moved for summary judgment on the grounds that
Doe had no
right to privacy in the information
contained in the Rite Aid report; that if he did have such a right it had not
been violated because no
disclosure had occurred; and that any interest
Doe might have in the
privacy of these records was outweighed by their legitimate interests in the
information. These arguments were rejected by the district court, which denied
their motion.
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n2
Doe also filed a related suit against Rite-Aid and its employees in a Philadelphia
Court of Common Pleas. That case was settled late in 1994, when Rite-Aid agreed
to modify its billing procedures in the state of Pennsylvania in order to
prevent these
disclosures in the future. See 22 BNA Pension and Benefits Reporter 33 (Jan. 2, 1995).
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After a jury trial, defendants moved under Rule 50 for judgment as a
matter of law, or, alternatively, for
[**11] a new trial under
Rule 59. They also moved for a reduction in damages on the grounds that
Doe had not proved emotional distress as a result of defendants' actions. The
judge granted their motion as to plaintiff's failure to train claim n3, but in
all other respects rejected the defendants' motions.
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n3 This ruling is not before us, as it has not been appealed.
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II.
The issues raised here present questions of constitutional law. Because this
case comes to us on appeal from an order denying a motion for judgment as a
matter of law, our review is plenary.
Epstein v. Kmart Corp., 13 F.3d 762 (3d Cir. 1994);
Cole v. Flick, 758 F.2d 124 (3d Cir.), cert. denied,
106 S. Ct. 253 (1985).
As a preliminary matter, this court must decide if a person's medical
prescription
record is within the ambit of information protected by the Constitution. If
there is no
right to privacy, our inquiry stops. A
§ 1983 action cannot be maintained unless the underlying act violates a
plaintiff's Constitutional rights. Minor annoyances
[**12] do not make a federal case. When the underlying claim is one of
invasion of privacy, the complaint must be
"limited to those [rights of
privacy] which are 'fundamental' or 'implicit in the concept of ordered liberty'..."
Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d 405, 96 S. Ct. 1155, reh'g. denied,
425 U.S. 985, 48 L. Ed. 2d 811, 96 S. Ct. 2194 (1976), citing
Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937).
Medical records fall
within this scope. The Supreme Court, in
Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), noted that the
right to privacy encompasses two separate spheres. One of these is an individual's interest in
independence in making certain decisions. The other is an interest in avoiding
disclosure of personal information. Whalen, at 599-600. Medical records fall within the
second category. Id. Therefore, the Court held that individuals do have a
limited
right to privacy in their medical records.
Id. at 602.
This court reinforced this holding through our decision in
United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980). In that case, the federal government, through the Occupational Safety and
Health Agency (OSHA), issued a subpoena duces tecum to an
employer for its employees' medical records
[**13] in connection with an investigation of a potentially hazardous work area. The
employer refused, asserting the
privacy interests of its employees. This court held that, on balance, the interests of
the government
[*1138] in the information outweighed these
privacy interests; however, they recognized that such records were deserving of a
level of constitutional protection.
"There can be no question that an employee's medical records, which may contain
intimate facts of a personal nature, are well within the ambit of materials
entitled to
privacy protection." Westinghouse, at 577.
The records at issue in Westinghouse included
"results of routine testing, such as X-rays, blood tests, pulmonary function
tests, hearing and visual tests."
Id. at 579. If these records are private, then so must be records of
prescription
medications. Since the Westinghouse decision fifteen years ago, medical science has
improved and specialized its
medications. It is now possible from looking at an individual's
prescription
records to determine that person's
illnesses, or even to ascertain such private facts as whether a woman is attempting to
conceive a child through the use of fertility drugs. This
[**14] information is precisely the sort intended to be protected by penumbras of
privacy. See
Eisenstadt v. Baird, 405 U.S. 438, 450, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972)("If the right of
privacy means anything, it is the right of the individual...to be free from unwanted
governmental intrusions into matters so fundamentally affecting a person as the
decision whether to bear or beget a child."). An individual using
prescription drugs has a right to expect that such information will customarily remain private.
The district court, therefore, committed no error in its holding that there is
a
constitutional right to privacy in one's
prescription records.
III.
Such a right is not absolute, however. See
Whalen v. Roe, 429 U.S. at 602 (while individuals have a legitimate expectation of
privacy in their
prescription purchases of controlled substances, such right must be
weighed against the state's interest in
monitoring the use of dangerously addictive drugs).
Disclosures of private
medical information to doctors, to hospital personnel, to insurance companies, and to public
health agencies are often an essential part of modern medical practice even
when the
disclosure may reflect unfavorably on the character
[**15] of the patient.
Id. In addition,
disclosure of private
medical information is necessary for the pharmacy filing the
prescriptions. The Court also cited examples of statutory reporting requirements relating to
various diseases, child abuse, injuries caused by deadly weapons,
certifications of fetal death, and the recordkeeping requirements of Missouri
abortion laws. Id. n. 29. As with many individual rights, the right of
privacy in one's
prescription drug records
must be balanced against important competing interests.
Before we can perform this
balancing test, we must first assess whether, and to what extent, Pierce disclosed
Doe's
prescription drug information. Obviously, no
privacy violation would have taken place had the information from Rite-Aid come in
encoded form. A
self-insured employer has a right to monitor the use and cost of its health insurance plan.
SEPTA's status as a public authority substantially dependent on the public fisc and
the rates the public must pay to use its facilities converts this right into a
duty.
Audits of drug information are essential to that end. In the aggregate, there is no
competing
privacy interest in those records.
Doe would
[**16] have no cause of action if all that had been disclosed were that an unknown
number of people at
SEPTA were purchasing Retrovir for the treatment of HIV-related
illnesses. Therefore, such
disclosure as occurred came only when
Doe's name was
revealed with respect to his purchase of drugs under
SEPTA's
prescription drug program.
Both Pierce and Aufschauer learned of
Doe's
illness through the Rite-Aid report. Pierce's initial discovery of the names on the
report was inadvertent. She had not requested names from Rite-Aid and there is
no evidence that she expected to find them when she opened their standard
report. This alone would not be sufficient to prove a constitutional violation
for
disclosure. n4 However,
[*1139] Pierce then spent some time and effort researching the report with the names
on it. She
highlighted, for her research purposes, those names on the report whose
medications she was unfamiliar with and which were expensive, including
Doe's, and called two
SEPTA staff physicians to ask about
medications she did not recognize. It was through this inquiry that Pierce learned about
Doe's condition. She did not know the uses of Retrovir before she did this research.
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n4 We need not discuss in this case any possible violation on the part of
Rite-Aid
for preparing such a report. See supra, n.2.
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[**17]
Aufschauer learned of
Doe's condition through his work as Director of Benefits and Pierce's subordinate.
Pierce disclosed the information to him in the course of their work.
SEPTA argues that this
disclosure was necessary, as Aufschauer also had reasons for needing this information.
Aufschauer's legitimate need for this information may affect whether the
disclosure is an actionable one. It does not alter the existence of
disclosure.
Nor can Pierce and Aufschauer be considered as a single unit for the purpose of
determining
disclosure. A
disclosure occurs in the workplace each time private information is communicated to a new
person, regardless of the relationship between the
co-workers sharing that information. By analogy, district courts in this circuit have
held that there is publication, such that a libel or slander is actionable,
when the defamatory statement is disclosed only to the speaker's agent.
Elbeshbeshy v. Franklin Institute, 618 F. Supp. 170 (W.D. Pa. 1985). Therefore, we hold that each person who learned of
Doe's condition constitutes a separate
disclosure for the purposes of
Doe's
invasion of privacy action.
To hold differently would lead us to a decision that
[**18]
Doe had waived his
right to privacy by voluntarily disclosing his medical condition to
co-workers at
SEPTA. We are not faced with a situation where persons to whom
Doe disclosed this information told others. Rather, Pierce and Aufschauer learned
his condition completely independently of
Doe's
disclosures. His decision to give private information to some
co-workers does not give carte blanche to other
co-workers to invade his
privacy. See Laurence Tribe, American Constitutional Law, 2d ed., at 1391 ("What could be more commonplace than the idea that it is up to the individual to
measure out information about herself selectively[?]....[A] secret remains a
secret even when shared with those whom one selects for one's confidences.")
However, we are not persuaded that the impingement on
Doe's
privacy by the
disclosure to
SEPTA's Chief Medical Officer, Dr. Press, amounts to a constitutional violation.
Doe himself had already voluntarily informed Dr. Press of his condition. Dr. Press
did not learn any new information from Pierce's actions. Plaintiff asserts that
Dr. Van de Beek, as well, learned of the information from Pierce. Van de Beek,
like Dr. Press, had already heard of
[**19]
Doe's condition from
Doe himself. Moreover, Pierce did not
disclose
Doe's name to Van de Beek. She asked him about
medications, and he deduced who she was asking about based on his independent knowledge of
Doe's condition. It stretches any theory of liability far too thin to base an
invasion of privacy on such conduct. Therefore, there was no
disclosure to Dr. Van de Beek. Also, as a
matter of
law, the cursory
disclosure Pierce made to Dr. Press, chief of
SEPTA's medical department, a physician, and largely responsible for the health of
SEPTA's employees, did not
"amount to an impermissible
invasion of privacy,"
Whalen v. Roe, 429 U.S. at 602, because John
Doe had already provided him with this information. Pierce and Aufschauer are the
only
disclosures to be
weighed and balanced.
IV.
As we noted earlier, an individual's
privacy interest in his or her
prescription records is not an absolute right against
disclosure. This interest must be
weighed against the interests of the employer in obtaining the information. We apply
an intermediate standard of review in making this determination.
Fraternal Order of Police, Lodge 5 v. Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987)(hereafter
[**20] FOP). FOP also
[*1140] noted that the more stringent
"compelling interest analysis" would be used when the intrusion on an individual's
privacy was severe. We are
not faced with such a situation here. The intrusion upon
Doe's
privacy was minimal at worst.
This court has previously enumerated the factors to be
weighed in determining whether a given
disclosure constitutes an actionable
invasion of privacy in
United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980). In Westinghouse, the federal government, through OSHA, served a subpoena duces
tecum on Westinghouse for its employees' medical records in connection with an
investigation concerning a possible health hazard in the workplace.
Westinghouse, as employer, moved to quash the subpoena, asserting, jus tertii,
its employees' rights of
privacy in those records. Here, in contrast,
SEPTA is the employer, who legitimately sought
prescription information to ascertain whether there were abuses of its health program,
either by the
supplier or the consumer/employee. Moreover, the remedy sought for the alleged invasion
here is
damages rather than a quashing of a subpoena. However, the Westinghouse factors
[**21] are still good law, and are equally applicable to this situation.
Westinghouse mandates a consideration of seven different factors. They are: (1)
the type of record requested; (2) the information it does or might contain; (3)
the potential for harm in any subsequent nonconsensual
disclosure; (4) the injury from
disclosure to the relationship in which the record was generated; (5) the adequacy of
safeguards to prevent unauthorized
disclosure; (6) the degree of need for access; and (7) whether there is an express
statutory mandate, articulated public policy, or other recognizable public
interest favoring access.
Westinghouse, 638 F.2d at 578. Although some of these factors may be in
Doe's favor, overall, we believe the balance
weighs on the side of permitting the
disclosures present here. There is a strong public interest of the Transportation
Authority, and the many thousands of people it serves, in containing its costs
and
expenses by permitting this sort of research by authorized personnel. This
interest outweighs the
minimal intrusion, particularly given the lack of any economic loss, discrimination, or
harassment actually suffered by plaintiff.
The type of record requested
[**22] here was the first print-out of
prescription
medications furnished by
SEPTA to its employees under its contract with the
supplier, Rite-Aid. No particular
format and no names were requested. The information which Pierce expected it to
contain was nothing more than a record of the drugs on which
SEPTA had spent over $ 100 in a given month per individual. However, Rite-Aid, on
its own initiative, included in its
format the names of each person taking those drugs. As discussed above, this
inadvertently-received information is entitled to a measure of
confidential protection.
In addition, we recognize the possible harm to
Doe from
disclosure. The district court of New Jersey, in
Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990), recognized the social stigma,
harassment, and discrimination that can result from public knowledge of one's affliction
with AIDS.
Id. at 384, n.8. It is unfortunate that public understanding of this disease has changed so
little in the intervening years. Although AIDS hysteria may have subsided
somewhat, there still exists a risk of much harm from non-consensual
dissemination of the information that an individual is inflicted with AIDS.
This
[**23] potential for harm, however, should not blind us to the absence of harm in
this case. Despite Pierce's
disclosures to her subordinate, Aufschauer, and to Dr. Press that
Doe had AIDS,
SEPTA promoted him and still retains him in his responsible position. In
Doe v. Borough of Barrington, a borough police officer, without justification,
told the neighbors of a man suffering from AIDS that the entire family had
AIDS. The neighbors reacted
by organizing a protest, and trying to prevent the man's children from
attending public school. In that case, the court quite rightly held such
conduct violated the plaintiffs'
privacy rights, and there was no competing interest to justify the
disclosure.
By contrast,
SEPTA had legitimate reasons for obtaining the
prescription information from Rite-Aid. Pierce had requested
[*1141] the information in Rite-Aid's standard
format; she did not request the names of any employees. She did not
disclose the information relating to
Doe except to Aufschauer, in connection with their review, and to Dr. Press, for
purposes of an
audit. Dr. Press, the Chief Medical Officer, already knew of
Doe's condition through
Doe's voluntary
disclosure. Moreover, Pierce destroyed
[**24] the first report. Under these circumstances, we cannot conclude that
Westinghouse factor (3) would impose liability on
SEPTA. Although the factor appears to address potential harm, such potential
harm must be measured within the context of the
disclosure that actually occurred. The potential for harm from a different
disclosure of this information, under different circumstances, as in Westinghouse, is not
germane here.
The record was generated from the relationship between
Doe and Rite-Aid, through his filling of the
prescription. It is difficult to see how this relationship is affected by Rite-Aid's
subsequent generating of reports to
Doe's employer.
Doe is no doubt aware that insurance companies and providers such as Medicare and
Medicaid routinely receive information from drugstores about
prescriptions charged to them by the insured.
Self-insured employers have the same rights as those providers to similar information.
Pierce did not expect that
SEPTA would be given access to the names of employees filling
prescriptions; however, the harm from this to the
Doe-Rite-Aid relationship is non-existent. Once Pierce realized the potential for
harm inherent in a report with names,
[**25] she instructed
Rite-Aid that the
format for all future reports should be without names. Rite-Aid agreed to comply.
Rite-Aid's relationship with
SEPTA employees will continue unchanged.
Judge Greenberg is of the opinion that the
"injury from
disclosure" would seem to apply to the relationship between
Doe and his employer, not between
Doe and Rite-Aid. Thus, he believes that the injury from
disclosure to the relationship in which the record was generated could obviously be much
greater, if the relevant relationship is between the employer and employee. He
concludes, therefore, that factor four may have
weighed in favor of
Doe in the jury's analysis. However, it must be borne in mind that, even if the
injury from
disclosure was to the relationship between
Doe and SEPTA, it is undisputed that he suffered no economic deprivation, nor any
discrimination, nor
harassment. It should also be noted that Judge Greenberg nonetheless believes that,
because of our conclusion regarding Westinghouse factors six and seven,
Doe cannot recover.
Factors six and seven strongly favor the defendants.
Pierce had a genuine, legitimate and compelling need for the document she
requested. Aufschauer, as
[**26] Director of Benefits, also had a need for the document. Each had a
responsibility and obligation to keep insurance costs down and to detect
fraudulent and abusive behavior. The report was intended for that purpose.
Employers have a legitimate need for
monitoring the costs and uses of their employee benefit programs, especially employers
who have fiscal responsibilities, as does
SEPTA, to the public. As health care costs rise, as they have in recent years, and
employers become obligated to expand employee coverage with greater protection
for more
illnesses and health conditions, health care costs become a major concern for employers
as well as for Congress. Ten years ago, health insurance was not among the top
concerns of small businesses; today it is number one. Note,
"Health Care Cost-Containment and
Small Businesses: The Self-Insurance Option,
" 12 J.L.
& Com. 333 (1993). In recent years many industrial strikes have been motivated
by the cost of health benefits sought by employees. One of the best ways to
monitor these costs is by performing
audits on the use to which health plans are being put, and by closely
monitoring the use of drugs.
Employers also have a right to ensure that
[**27] their health plan is only being used by those who are authorized to be
covered. Finally, the employers have a right to contain costs by requiring that
employees use generic drugs rather than brand name when an adequate substitute
exists. To accomplish these goals, employers must have access to reports from
their
prescription
suppliers, and they must inspect and
audit those reports. That is precisely what Pierce and Aufschauer were
[*1142] engaged in, and this was a legitimate function of their positions. They had a
legitimate need for access to information from the drug
supplier, and they carefully controlled its use.
Because
SEPTA is an agency subsidized by the state and federal government, its operating
costs are substantially borne by the public who use its facilities and the
taxpayers who pay its subsidies. Keeping fares and taxes low, and preserving
the public fisc are genuine, recognizable public interests. Therefore, Pierce's
need for access, factor six of Westinghouse, also articulates a recognizable
public policy encouraging access, as noted in factor seven.
As Chief Administrative Officer for
SEPTA, Pierce had responsibility for health costs. Her ability over a period of three
[**28] years to successfully reduce
prescription drug and dental costs by a combined total of over $ 42,000,000 gives us some idea
of the immensity of her task and the money at stake. The new contract between
SEPTA and Rite-Aid gave strong financial incentives to cut costs if possible. There
can be no
serious argument that Pierce could do this
monitoring without being able to
audit reports of the actual costs and the drugs purchased. It is true that the names
of the individual employees were unnecessary for this purpose. n5 It is equally
true that Pierce did not request such names, nor did she
disclose those names, or any of the information contained in the report, in anything
other than a legitimate manner. Except for Dr. Press, who had the information
directly from
Doe, the only other person to whom Pierce disclosed the information was Aufschauer.
As they requested only information for which they had a legitimate and
compelling need, and used the information received in a legitimate, careful and
confidential manner, it cannot be said that they violated
Doe's
right to privacy merely because the first report from Rite-Aid contained unnecessary,
unrequested information in which he had a
privacy
[**29] interest.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 There may be situations not before us now where an employer who pays for
prescriptions or benefits
for employees or their dependents may need to know the identity of a person
obtaining the
prescriptions or benefits. After all, an employer might need this information to determine
whether the person obtaining the
prescriptions or benefits was eligible for them, or if the person was even an employee. Of
course, such need to know would have to comply with the employee's right of
privacy as well.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Factor five, however, requires a slightly more complex analysis. It requires us
to
weigh
"the adequacy of
safeguards to prevent unauthorized
disclosure." As discussed above, there was no unauthorized
disclosure. However, as
SEPTA was unaware that they would receive such
confidential information, and this was their first experience under the Rite-Aid contract,
there were no
safeguards in place.
In
FOP, supra, the Philadelphia
police department required applicants to the Special Investigative Unit (SIU)
[**30] to complete questionnaires, which asked for extremely private information.
Police officers sought an injunction against its use. One grouping of questions
focused on the medical history of the applicant and his family, asking for such
information as physical disabilities,
prescription drug use, and past psychological histories.
FOP, 812 F.2d at 112. Although noting that, in most cases, this private information was irrelevant
to the selection of SIU forces, the court also recognized that in some cases,
these questions would reveal information essential to the
police department.
Id. at 113. Therefore, the court permitted the City to ask these questions of all
applicants.
However, the court expressed concern with the absence of protection of this
information. It noted that
"there is no statute or regulation that penalizes officials with
confidential information from disclosing it."
Id. at 118. As a result, the court remanded to the district court with directions to
continue the injunction until the
"City, the Commissioner, or other appropriate official establishes written,
explicit and binding rules that contain adequate
safeguards against unnecessary
disclosure of the
confidential
[**31] information..." Id.
Were the case before us now also a
request for an injunction, and had
SEPTA
[*1143] requested the broad information required by the Philadelphia
police department, we might have similar concerns. This case, however, is a suit for damages and
the information disclosed did not have the breadth requested by the
Philadelphia SIU.
Doe did not attempt to enjoin further dissemination by
SEPTA, although he is still employed by it. Indeed, such a suit would have been moot
at its inception.
SEPTA has established an adequate
safeguard against a recurrence of unnecessary
disclosure by requesting that Rite-Aid no longer send such
confidential information. Should such information become necessary at some future time, for
instance, should names be needed for a more extensive investigation as a result
of an initial
audit, it can be expected that
"written, explicit and binding rules" would be promulgated before such information is requested. But it is an
unnecessary burden to require that they be announced when the employer has no
knowledge that it will be
in receipt of the sort of information that requires these
safeguards. Unlike the defendant in FOP, Pierce and
SEPTA did not
[**32] request such information as would put them on notice that they would need to
pre-arrange for its
confidential handling. Thus, we perceive no violation of the Westinghouse fifth factor.
We hold that a
self-insured employer's need for access to employee
prescription records under its health insurance plan, when the information disclosed is
only for the purpose of
monitoring the plans by those with a need to know, outweighs an employee's interest in
keeping his
prescription drug purchases
confidential. Such
minimal intrusion, although an impingement on
privacy, is insufficient to constitute a constitutional violation. The district court
should have granted defendants' Rule 50 motion for judgment as a
matter of law.
V.
In light of the conclusion we reach that the defendants did not violate
plaintiff's right of
privacy, we need not decide whether the
plaintiff's testimony alone of his diagnosis and subjective impressions can
support a finding of damages for emotional distress. n6 See
Spence v. Board of Education of Christina School District, 806 F.2d 1198, 1201 (3d Cir. 1986).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Plaintiff admits that he suffered no economic damages or physical injury
from
SEPTA's actions. He was not fired or demoted. Emotional distress, therefore, is
Doe's only possible basis for recovery.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**33]
VI.
SEPTA demonstrated important interests in the
prescription information furnished by its
supplier, and disclosed such information only to people with a right to know. This
outweighs the
minimal intrusion into
Doe's
privacy. The district court erred in its analysis of the Westinghouse factors, and
should have granted defendant's motion for judgment under Rule 50.
Accordingly, the judgment of the district court will be reversed, and the
matter will be remanded to the district court for entry of judgment for the
defendants as a
matter of law. Each side to bear its own costs.
CONCURBY:
GREENBERG;
LEWIS
CONCUR:
GREENBERG, Circuit Judge, concurring.
Although I agree with Judge Rosenn's conclusions, I have a few reservations
about his opinion that I note here.
First, regarding our standard of review: as Judge Rosenn indicates, after a
jury verdict, the court cannot substitute its view of the evidence for that of
the jury; accordingly, all evidence and inferences therefrom must be taken in
the light most
favorable to the verdict winner. See
Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993) (as amended on petition for rehearing). In addition, we
[**34] have noted that a court of appeals in exercising plenary review over an order
granting or denying a motion for judgment as a
matter of law must apply the same standard as did the district court.
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993);
Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir. 1993). We recently outlined the relevant standard:
In deciding whether to grant a motion for JNOV, the trial court must view the
evidence in the light most
favorable to the
[*1144] non-moving party, and determine whether the record contains the 'minimum
quantum of evidence from which a jury might reasonably afford relief.'
Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990) (citations omitted). The court may not
weigh the evidence, determine the credibility of witnesses or substitute its version
of the facts for that of the jury.
Blair v. Manhattan Life Ins. Co., 692 F.2d 296, 300 (3d Cir. 1982). The court may, however, enter judgment
notwithstanding the verdict if upon review of the record, it can be said as a
matter of law that the verdict is not supported by legally sufficient evidence.
Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205,
[**35] 1210 (3d Cir.), cert. denied,
400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970).
Parkway Garage, 5 F.3d at 691-92.
I join in Judge Rosenn's opinion because I believe that, even viewed in the
light most
favorable to
Doe, the verdict winner in the district court, the facts of this case cannot, as a
matter of law, support the jury's verdict. I support this holding because factors six and
seven of the
balancing test announced in
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980), namely
SEPTA's need for access to the
prescription information and
"whether there is an express statutory mandate, articulated public policy, or
other recognizable public interest militating toward access," outweigh
Doe's limited
privacy interests in the information. It is here that, in my view, the district court
in its opinion denying
SEPTA's post-trial motions for judgment as a
matter of law or for a new trial misapplied the Westinghouse
balancing test. The court decided that, because Pierce
"never articulated a need to know what
Doe's
medications were used for or a reason that she did not put the report aside or black out
the names when she saw them," and because there was testimony that
[**36]
"the names of the individual employees were irrelevant to the issues they were
examining," the jury reasonably could have found factor six to
weigh in favor of a violation of
Doe's
privacy right. See
Doe v. SEPTA, et al., No. 93-5988, 1995 U.S. Dist. LEXIS 7629, *29 (E.D. Pa. June 1, 1995). Likewise, because
"the financial need to control
prescription benefit costs . . . does not include a need to have the names of employees
linked with their
medications, at least until an abuse of the benefit has been established," the district court decided that the jury also could have found factor seven to
weigh in
Doe's favor. See id. at*30.
However, the district court's emphasis on
SEPTA's need to have the names of employees linked with their
medications was misplaced. The focus of factors six and seven of the Westinghouse
balancing test in this case should not be on appellants' need to have the names of employees
linked with their
medications, but instead should be on their need to have access to
prescription
utilization data in the first place. As Judge Rosenn's opinion notes, it is essential in
this era of escalating health care
costs that
self-insured employers be able to review their
[**37] benefits programs for proper usage, cost-cutting possibilities, and fraud and
abuse, among other factors. Thus, I agree with his conclusions.
However, I do not believe that Judge Rosenn's opinion reflects the facts of the
case in the light most
favorable to
Doe. For example, in describing Pierce's actions with respect to the Rite-Aid
report, he states that she
highlighted the names on the report whose
medications she was unfamiliar with
"for her research purposes," see typescript at 13, and that she
"discreetly never mentioned
Doe by name" to Dr. Van de Beek. Id. at 6. Yet, Pierce's motivations for highlighting the
names of the employees, in particular
Doe's, was a primary factual issue in the case, as was her possible carelessness.
Clearly,
Doe did not claim that Pierce
highlighted the names merely for her research purposes, nor would he have described her
behavior as
"discreet." The jury's verdict for
Doe, then, might reflect its agreement with his assertions that her motivations, as
well as her conduct, were improper. In any case, it does not seem that Judge
Rosenn's opinion paints the issue in the light most
favorable to a verdict for
Doe. Although I regard this point
[**38] as somewhat academic because of my analysis of the Westinghouse factors, it is
worth noting because of our clear mandate to view the facts in the most
favorable light to the verdict-winner in reviewing
[*1145] a denial of a motion for judgment as a
matter of law.
More substantively, I do not agree with Judge Rosenn's analysis regarding
Pierce's contact with Dr. Press. While it is true that Dr. Press did not
acquire any new information from Pierce's actions, the focus of an inquiry into
an alleged violation of the
constitutional right to privacy should be on whether there was a
disclosure. As an initial matter, Pierce showed
Dr. Press the
highlighted list containing
Doe's name and
prescription information. Pierce did not know whether Dr. Press had any prior knowledge
regarding
Doe's condition; nevertheless, she presented the information to Press. The
constitutional right to privacy is intended to prevent certain
disclosures. Thus, ordinarily individuals have the power to determine to whom they
disclose their most personal matters. Here, Pierce impinged on
Doe's right with the
disclosure to Press in the same way that she did so with respect to the
disclosure to Aufschauer. As Judge Rosenn's
[**39] opinion states,
"[a]
disclosure occurs in the workplace each time private information is communicated to a new
person . . . ." Typescript at 14.
Yet
Doe himself already had informed Dr. Press voluntarily of his condition. Pierce's
disclosure to Press, then, should not lead to
Doe's recovery of damages, since the
disclosure left
Doe in the same position as before it occurred. This issue is one of damages
alone, however, and does not
affect the existence of a
disclosure to Press. Thus, the court must
weigh this
disclosure as well as those involving Pierce and Aufschauer in order to determine whether
a constitutional violation occurred. Accordingly, in my view it is not enough
simply to state that because no damages were incurred there could not have been
a violation of
Doe's
privacy right. In the end, though, the existence of a third
disclosure in the case does not alter my analysis of the Westinghouse factors and
therefore does not change my ultimate conclusion that we should reverse the
judgment of the district court.
I also want to make a clear distinction between an impingement into
privacy rights that is justified according to the Westinghouse factors, and an
unconstitutional
[**40] violation of the
right to privacy. We have held that questions seeking personal
medical information included in a
police department questionnaire for use in selecting applicants for a special investigations
unit
"[did] not unconstitutionally impinge upon the applicants'
privacy interests."
Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 114 (3d Cir. 1987) (footnote omitted). We also have held that the strong public interest in
facilitating the research and investigations of a government agency into a
potentially hazardous work area
"justified [the]
minimal intrusion into the
privacy which surrounds . . . employees' medical records . . . ."
Westinghouse, 638 F.2d at 580. However, in neither case did we deny that an intrusion into
privacy interests occurred. Likewise, here we do not deny that Pierce's
disclosures impinged upon
Doe's
privacy interests in his
prescription information. We do find, however, that the
disclosures were justified according to the Westinghouse
balancing test because of
SEPTA's strong interest in having access to
utilization review data from its
prescription drug program. Thus, although there was an impingement into
Doe's
privacy rights,
[**41] there was not here an unconstitutional violation of those rights.
Finally, regarding specific applications of the Westinghouse factors:
Westinghouse factor four,
"the injury from
disclosure to the relationship in which the record was generated," would seem to me to apply to the relationship between
Doe and SEPTA, not the relationship between
Doe and Rite-Aid, as Judge Rosenn's opinion states. The relationship between
Doe and his employer underlies the
prescription benefits package in the first place; were it not for that benefits package,
Doe would not have filled his
prescription at Rite-Aid, nor would his name have been on the Rite-Aid report. In this
regard, the injury from
disclosure to
"the relationship in which the record was generated" obviously could be much greater if the relevant relationship is that between
Doe and his employer and not the
Doe-Rite-Aid relationship. Thus, the factor may have
weighed more heavily in favor of
Doe in the jury's analysis than Judge Rosenn's opinion indicates. Nevertheless,
[*1146] because of my conclusions regarding Westinghouse factors six and seven,
I still believe that
Doe cannot recover for the
disclosures made in this case.
[**42] Westinghouse factor five,
"the adequacy of
safeguards to prevent unauthorized
disclosure," also could have
weighed more heavily in favor of
Doe in the jury's analysis than Judge Rosenn indicates. While it is true that
Pierce and
SEPTA did not request such information as would put them on notice that they would
need to pre-arrange for its
confidential handling, it would not have been unreasonable for the jury to conclude that
SEPTA should have had some sort of policy regarding the confidentiality of employee
medical information that would have put Pierce on notice of the sensitivity of the information she
received. Moreover, it also would have been reasonable for the jury to expect
Pierce to act more carefully with the information regardless of the existence
of an official
SEPTA policy, especially because of her high executive level in the company, in
addition to her experience as a former government attorney. Thus, although
factor five does not change my ultimate
conclusion in the case, perhaps it
weighed more heavily in favor of
Doe, at least in the jury's consideration, than Judge Rosenn's opinion would
suggest.
I make one final point. As Judge Rosenn notes,
SEPTA did not request
[**43] the names of its employees obtaining
prescription drugs. Consequently, the case has been decided on the assumption that it did not need
the names. Nevertheless, I do not understand that there is any legal impediment
to an employer who pays for
prescriptions or other benefits for employees and their dependents insisting on knowing the
identity of the person obtaining the
prescriptions or benefits. After all, an employer might need this information to determine
whether the person obtaining the
prescriptions or benefits was eligible for them. Judge Rosenn makes this important point,
typescript at 22 n.5, and I particularly want to emphasize it. In accordance
with the foregoing comments, I join in Judge Rosenn's opinion with the caveats
I have
stated and join in the judgment of the court.
DISSENTBY: LEWIS
DISSENT:
LEWIS, Circuit Judge, concurring and dissenting.
I agree with and join in that part of Judge Greenberg's concurring opinion
which pertains to the first five Westinghouse elements. However, because I
believe that there was more than a
"minimum quantum" of evidence from which the jury in
Doe's case could reasonably conclude that his
constitutional right to privacy had been violated,
[**44] I respectfully dissent. See
Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1990).
Because my disagreement with the majority rests primarily with its analysis of
the sixth and seventh Westinghouse factors, I will focus my discussion on those
elements.
With respect to the sixth factor, which addresses the degree of need for access
to the information, I note initially that at
Doe's trial, Ms. Pierce, the
SEPTA administrator responsible for auditing the company's health benefits plan,
testified that for her purposes the employee names on the
Rite-Aid printout were irrelevant. In fact, the district court specifically
noted that
"it was undisputed that the names on the report were unnecessary for Pierce's
review of the Rite Aid report." (J. Yohn's Memorandum at 6, 16-17). While it is true that
SEPTA could have legitimately requested these names for auditing purposes, the fact
is that in this case it neither required nor requested such information. n7
Thus, the jury had no factual basis upon which to conclude that
SEPTA needed its employees' names in order effectively to
audit its health plan.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 The first Westinghouse factor is the
"type of record requested." In this case,
SEPTA did not request that the printout from Rite-Aid include employee names. As a
result, I believe that this element of the
balancing test does not
weigh in
Doe's favor.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**45]
I disagree that
"the focus of factors six and seven of the Westinghouse
balancing
test in this case should not be on appellant's need to have the names of employees
linked with their
medications, but instead should have been on their need to have access to
prescription
utilization data in the first place." (Concurring Op. at 3). First, I am aware of no
[*1147] authority which suggests that this broad approach is the correct way in which
to frame the issue. Second, the jury's finding that Pierce had no need for the
names on the Rite-Aid printout is not inconsistent with the principle that
SEPTA may have had a legitimate need for access to
prescription
utilization data. Thus, because in my view the record clearly establishes that for
purposes of auditing its
prescription drug program with Rite-Aid,
SEPTA did not necessarily need a printout that indicated by name what
prescription drugs particular employees were taking, I cannot agree that the verdict was
"not supported by legally sufficient evidence." As Judge Greenberg
notes in his concurring opinion, the Parkway Garage standard requires the trial
court, and us, to
"view the evidence in the light most
favorable to the non-moving party,
[**46] and determine whether the record contains the 'minimum quantum of evidence
from which a jury might reasonably afford relief.'
Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990) (citations omitted)," and to avoid
"'weighing the evidence, determining the credibility of witnesses or
substituting [our] version of the facts for that of the jury.'
Blair v. Manhattan Life Insurance Co., 692 F.2d 296, 300 (3d Cir. 1982)." Id. at 1. Accordingly, we must adhere to the Parkway Garage standard and allow
the appropriate measure of deference to the jury's findings. For the above
reasons, I do not believe that the majority has done so with regard to the
sixth Westinghouse factor.
With respect to the seventh Westinghouse
factor, I agree that there is an important public interest in allowing
companies such as
SEPTA, which administer their own health plans, to have access to the
prescription drug records of their employees. (Maj. Op. at 20-21). In general, I would agree
that such employers have a legitimate need for this information. Nevertheless,
I do not believe that this interest, standing alone, is sufficient to overcome
the other Westinghouse factors, which
[**47] in this case
weigh largely in
Doe's favor. Moreover, in my view, the majority places a disproportionate emphasis
on factor seven, so much so that the remaining elements of the
balancing test become practically irrelevant to its analysis. To my knowledge, we have never
suggested that the seventh Westinghouse factor is the most significant
consideration in our analysis. Accordingly, because under the highly
deferential Parkway Garage standard there clearly is sufficient evidence in the
record to support the jury's verdict in
favor of
Doe, once again I believe we are bound to affirm the district court's order.
Finally, I am concerned that the majority's decision on the issue of
SEPTA's liability appears to be influenced, at least in part, by the fact that
Doe was neither fired, harassed nor demoted. (See Maj. Op. at 18 ("This potential for harm, however, should not blind us to the absence of harm in
this case.")). I do not understand how or why this point is at all relevant to our legal
analysis of the liability issue. In my view, the nature and extent of harm
Doe suffered as a result of the
disclosure that occurred is a damages rather than a liability issue. Moreover, as
[**48] I understand the logic of the majority position, even if
Doe had suffered a more direct harm in this case (say, for instance, on the job
harassment),
SEPTA's actions still would not have constituted a violation of
Doe's
limited
privacy right against
disclosure, because this right was outweighed by the strong public interest favoring
SEPTA's access to
prescription drug information for auditing purposes. Again, I disagree.
But I am particularly troubled by the potential implications of the majority's
position. I hope I am wrong, but I predict that the court's decision in this
case will make it far easier in the future for employers to
disclose their employees' private
medical information, obtained during an
audit of the company's health benefits plan, and to escape constitutional liability
for
harassment or other harms suffered by their employees as a result of that
disclosure.
For the above reasons, I respectfully concur and dissent.
