Adelman et al v. Boy Scouts of America et al

Filing 284

ORDER granting 260 Motion to Compel. Signed by Magistrate Judge Jonathan Goodman on 8/17/2011. (eg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-22236-CIV-GOLD/GOODMAN

HOWARD ADELMAN and
JUDITY SCLAWY, as
Co-Personal Representatives of THE
ESTATE OF MICHAEL SCLAWY-ADELMEN,

Plaintiffs,
vs.
BOY SCOUTS OF AMERICA, et al
Defendants.
___________________________________/
ORDER ON DEFENDANTS’ MOTION FOR ORDER RE: BLOOD TESTING
This Cause is before the Court in connection with Defendants’ Motion for Order
Authorizing Release of Michael Sclawy-Adelman’s Blood Sample to NMS Labs to
Conduct an “Amphetamines” Test (DE 260). The Court has reviewed the motion and
Plaintiffs’ Response, opposing the motion (DE 279). For the reasons outlined below, the
motion is granted.
The parties contest the exact cause of death in this wrongful death lawsuit.
Because the Plaintiffs did not permit an autopsy of their 17-year-old son, Michael, none
was performed.1 The medication Michael was taking prior to and during the hike is an
important issue in the case. Defendants contend that the medication and the chemical
impact it had on Michael’s body contributed to or caused his death.
According to limited testing of a blood sample taken from Michael the day after
he died, Michaels’ blood contained phenylpropanolamine and pseudoephedrine, which,
according to the medical deposition testimony in the case, can be found in diet drugs.
Michael’s weight is an issue in the case and Defendants want to have Michael’s blood
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The Deputy Chief Medical Examiner testified that he would have removed
Michael’s heart, brain and organs and dissected the organs and brain during an autopsy.
He further testified that autopsies violate Jewish religious tradition by desecrating the
body.

sample further tested to determine the quantity of the two chemicals already found in the
limited blood testing. In particular, Defendants would like an amphetamine test to be
performed because it tests for appetite suppressants, a category not encompassed by the
ephedrine test previously approved by Plaintiffs’ counsel. Given that Michael was
overweight (but the parties disagree about the extent), Defendants say they need the
amphetamine test because no autopsy was performed and because the test might reveal
whether Michael was taking appetite suppressants, also known as diet drugs, which could
be a contributing factor in his death.
The laboratory selected to conduct the amphetamine test on the existing blood
sample requires a court order and Defendants also request parental consent to be provided
along with an order.
Plaintiffs, already agreed to the ephedrine panel test, but oppose the request for
the additional amphetamine testing.
Plaintiffs do not argue that the court lacks authority to grant the requested relief.
Instead, they contend that the court should exercise its discretion and not to permit the
requested testing on an existing blood sample.
Plaintiffs’ opposition confuses the standards for admissibility at trial with pre-trial
discoverability, which is a significantly broader standard. Plaintiffs’ argument delves
into considerable medical detail, (e.g., discussing Michael’s cholesterol levels and the
absence of certain types of warnings on over-the-counter allergy medicine) in an effort to
persuade the Court why the additional study should not be performed along with the
ephedrine panel assessment which Plaintiffs already agreed to several months ago.
In effect, Plaintiffs are urging the Court to enter what would amount to either a
summary judgment or order granting a motion in limine on the issue of whether a notyet-determined amount of an amphetamine in a previously-drawn blood sample is
inadmissible at trial. The Court is not prepared to make such a potentially far-reaching
decision, especially when the medical results have not yet been determined. It is also
constrained from doing so by the limited nature of the referral in this case (i.e., for
discovery only) and by the broad standard of discoverable information dictated by the
Federal Rules of Civil Procedure and controlling precedents.

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To the extent that Plaintiffs say that the amphetamine testing will cause confusion
and the risk of a false positive, those are arguments which can be made before trial (in a
motion in limine) or at trial, before a party seeks to introduce the evidence.
The blood testing is permitted by the Federal Rules of Civil Procedure. The cause
of death is a significant issue in the case. The blood sample has already been taken from
Michael after he died, so there are no invasive procedures which would be triggered by
the testing. Although the test result might be inadmissible because it could generate
confusion (or because of other reasons), this hypothetical and potentially speculative
concern is not a ground to deny pre-trial discovery.
Therefore, the Court orders and authorizes the release of the blood sample so
that NMS Labs (or any other appropriate testing facility) may conduct an amphetamine
panel test (which will, by definition, also include the ephedrine panel test). Plaintiffs
shall provide notarized affidavits in the form attached to the motion (DE 260-6) within
five days of the entry of this order and shall cooperate with the Defendants as necessary
in facilitating the tests.2
DONE AND ORDERED in Chambers, at Miami, Florida, this 17th day of
August, 2011.

Copies furnished to:
Hon. Alan S. Gold
Counsel of Record

2

Federal Rule of Civil Procedure 37(a)(5) requires the entry of an expense award
in favor of the party who filed a motion to compel which gets granted, unless one (or
more) of three limited exceptions apply. Given the sensitive nature of the request and the
wide discretion the court has for this type of medical testing issue, the Court finds that an
expense award should not be entered on this motion. See Fed. R. Civ. Pro.
37(a)(5)(A)(ii) and (iii).
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