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Burt v. Winona Health

United States District Court, D. Minnesota

August 1, 2018

Jamie Burt and Mitchell Burt, each individually and as Parents and Natural Guardians of R.B., a minor, Plaintiffs,
v.
Winona Health; Winona Health Services; Winona Health's Women's Health Center; Troy J. Shelton, M.D.; and Grace Rasmussen, R.N., Defendants.

          ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         This 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.)

         The 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 reference.

         In his Order, Magistrate Judge Noel granted in part and denied in part Defendants' request for discovery and fees.[1] 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.)

         Defendants 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.

         Plaintiffs 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).)

         The 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.”[2] (Id. ¶ 5.)

         Plaintiffs' 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.[3] The relevance of Plaintiffs' genetic makeups outweigh Plaintiffs' physical and privacy concerns relating to WES testing.

         Plaintiffs 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 disseminated only:
(i) with the individual's written informed consent; or (ii) if necessary in order to accomplish purposes ...

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