United States District Court, D. Minnesota
Jamie Burt and Mitchell Burt, each individually and as Parents and Natural Guardians of R.B., a minor, Plaintiffs,
Winona Health; Winona Health Services; Winona Health's Women's Health Center; Troy J. Shelton, M.D.; and Grace Rasmussen, R.N., Defendants.
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendants Winona Health
Services, d/b/a Winona Health's, and Grace Rasmussen,
R.N.'s appeal (Doc. No. 96) of Magistrate Judge Franklin
L. Noel's February 23, 2018 Order (Doc. No. 91) and
Defendants Troy J. Shelton, M.D.'s and Winona Health
Services d/b/a Winona Health's appeal (Doc. No. 97) of
Magistrate Judge Franklin L. Noel's February 23, 2018
Order (Doc. No. 91). Plaintiffs filed an opposition to
Defendants' appeal on March 23, 2018. (Doc. No. 102.)
Defendants Winona Health Services and Grace Rasmussen, R.N.
filed a brief in support of its objection to the Magistrate
Judge's Order denying whole exome sequencing
(“WES”) testing on April 4, 2018. (Doc. No. 105.)
Defendants Troy J. Shelton, M.D. and Winona Health Services
filed a reply brief in support of its objection to the
Magistrate Judge's Order denying WES testing on April 4,
2018. (Doc. No. 106.)
Court must modify or set aside any portion of the Magistrate
Judge's order found to be clearly erroneous or contrary
to law. See 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); Local Rule 72.2(a). This is an
“extremely deferential standard.” Reko v.
Creative Promotions, Inc., 70 F.Supp.2d 1005, 1007 (D.
Minn. 1999). “A finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Chakales v. Comm'r of Internal
Revenue, 79 F.3d 726, 728 (8th Cir. 1996) (quoting
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). The factual background for the
above-entitled matter is clearly and precisely set forth in
Magistrate Judge Noel's Order and is incorporated by
Order, Magistrate Judge Noel granted in part and denied in
part Defendants' request for discovery and
fees. As relevant here, Defendants requested
that the Court order Plaintiffs to undergo WES testing to
explore other possible genetic causes of R.B.'s
disability. The Magistrate Judge denied Defendants'
request, concluding that Defendants failed to show the
requisite good cause under Fed.R.Civ.P. 35(a)(2)(A). The
Magistrate Judge found persuasive the Rule 35 reasoning of
Fisher for X.S.F. v. Winding Waters, Clinic, P.C., et
al., which appears to be the first federal district
court case to consider Rule 35 in the context of a request to
compel WES testing. Civ. No. 2:15-01957, 2017 WL 574383, at
*3 (D. Or. Feb. 13, 2017). In Fisher, the Court
noted that WES testing frequently requires testing of an
examinee's relatives “to determine whether a
particular [DNA sequence] variant has caused a potential
genetic syndrome.” Id. at *7. Such testing
oftentimes has the consequence of disclosing genetic
information of an examinee's relatives - individuals who
are not parties to the case and may have no interest in its
outcome. See Id. The Court concluded that
“[t]his sweeping invasion of personal integrity and
privacy strongly weighs against a finding of good
cause.” Id. Persuaded by Fisher's
“Rule 35 exposition, ” the Magistrate Judge
concluded “that Plaintiffs could carry genetic
disorders contributing to R.B.'s disability is
insufficient to show good cause that those putative genetic
disorders are in controversy in this case.” (Doc. No.
91 at 6.) The Magistrate Judge found that Defendants failed
to show the requisite good cause under Rule 35 and denied
Defendants' request. (Id. at 7.)
appeal the Magistrate Judge's Order, arguing that the
Magistrate Judge erred in concluding that the Rule 35
“good cause” standard requires Defendants to show
“specific facts justifying discovery.” (Doc. No.
96 at 10.) Defendants contend that their experts have
identified genetic disorders and “specific conditions
that could be likely culprits” of R.B.'s
disability. Defendants argue that by requiring more specific
facts, the Magistrate Judge inappropriately burdened
Defendants with proving their case on the merits at this
stage of the litigation. (Id.) In support of their
position, Defendants rely on Schlagenhauf v. Holder,
379 U.S. 104, 118 (1964). In Schlagenhauf, the
United States Supreme Court reversed the district court's
order granting several physical and mental examinations
pursuant to a Rule 35 request. Id. at 108-09. The
Supreme Court held that a party requesting an examination
pursuant to Rule 35 must show “that each condition as
to which the examination is sought is really and genuinely in
controversy and that good cause exists for ordering each
particular examination.” Id. The Supreme Court
further noted that Rule 35 examinations should not be
“ordered routinely” and that “there must be
a greater showing of need under [Rule 35] than under the
other discovery rules.” Id. at 118, 122.
Defendants contend that they have met this burden.
ask the Court to affirm the Magistrate Judge's conclusion
that good cause does not exist for WES testing. (See
generally Doc. No. 102.) Specifically, Plaintiffs argue
that Defendants have failed to “establish that
R.B.'s genome is in controversy, or good cause exists . .
. to support dragnet genetic testing.” (Id. at
9.) Plaintiffs further assert that “Defendants have
already received what they are entitled to under Rule
35” and Schlagenhauf because “Plaintiffs
submitted to an examination of R.B. voluntarily by
Defendants' pediatric neurologist.” (Id.
at 14 (noting that Schlagenhauf permits a defendant
an examination to determine the existence and extent of the
injury a plaintiff asserts”) (internal quotation marks
and citation omitted).)
Court observes that this is an extremely close call. The
Court concludes, however, that because Plaintiffs must prove
the cause of R.B.'s injuries, R.B.'s genetic makeup
is “really and genuinely in controversy.”
Schlagenhauf, 379 U.S. at 109. The Court further
concludes that Defendants have established good cause for WES
testing. Specifically, Defendants' expert, Dr. Bradley
Schaefer, stated that there are numerous genetic disorders
that may have caused R.B.'s injuries, while also
identifying specific conditions that may be a cause. (Doc.
No. 45 (“Schaefer Decl.”) ¶ 6.) Dr. Schaefer
also explained that “[w]ithout genetic testing to look
for these conditions, ” doctors often misdiagnose a
child's injuries. (Id.) These facts undercut the
Magistrate Judge's finding that Defendants did not
“identify what other causes are likely to be found or
why [WES] testing is likely to produce evidence that cannot
be ascertained without the testing.” (Doc. No. 91 at
6.) Dr. Schaefer identified specific facts justifying WES
testing related to R.B.'s parents - namely, that their
“medical records indicate the possibility of underlying
genetic issues within the family.” (Id.
privacy and personal, physical integrity concerns are valid.
However, the Court finds that the stipulated protective order
in this case is adequate to protect Plaintiffs' private
genetic information from disclosure to third parties.
(See Doc. No. 28.) The stipulated protective order
also permits the parties to petition the Court for
modification of the protective order, which Plaintiffs may do
to more comprehensively protect their genetic information.
(Id. ¶ 12.) Moreover, the physical testing
sought here involves collecting only a teaspoon of blood from
each Plaintiff. (Schaefer Decl. ¶ 9.) The test is
minimally invasive compared to other Rule 35 examinations,
including, as relevant here, spinal taps. The relevance of
Plaintiffs' genetic makeups outweigh Plaintiffs'
physical and privacy concerns relating to WES testing.
also ask the Court to affirm the Magistrate Judge's order
on the alternative grounds that Minnesota's Genetic
Privacy Act (the “Genetic Privacy Act”) bars WES
testing. See Minn. Stat. § 13.386. The Genetic
Privacy Act states:
(a) Unless otherwise expressly provided by law, genetic
information about an individual:
(1) may be collected by a government entity, as defined
section 13.02, subdivision 7a, or any other person only with
the written informed consent of the individual;
(2) may be used only for purposes to which the individual has
given written informed consent;
(3) may be stored only for a period of time to which the
individual has given written informed consent; and (4) may be
(i) with the individual's written informed consent; or
(ii) if necessary in order to accomplish purposes ...