Kanuszewski et al

Filing 104

ORDER consolidating cases. Signed by District Judge Thomas L. Ludington. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ADAM KANUSZEWSKI, et al.,
Plaintiffs,
v.

Case No. 18-10472
Hon. Thomas L. Ludington
Magistrate Judge Patricia T. Morris Case

MICHIGAN DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Et al.,
Defendants.
SHANNON LAPORTE, et al.,
Plaintiffs,
v.
ROBERT GORDON, DR.
SANDIP SHAH, DR. SARAH
LYON-CALLO, MARY
KLEYN, AND MARY SEETERLIN,
in their official capacities,
Defendants.

No. 20-10089
Hon. Thomas L. Ludington
Magistrate Judge Patricia T. Morris

ORDER CONSOLIDATING LAPORTE V. GORDON WITH KANUSZEWSKI V.
MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES
On January 14, 2020, Plaintiff, Shannon LaPorte on behalf of herself and as parentguardian of her unborn child, B.O., filed a complaint against officials from the Michigan
Department of Health and Human Services (“MDHHS”) in their official capacities. ECF No. 1.
The complaint alleges four counts – Count I alleges that MCL § 333.5431(2) violates the Fourth
Amendment, Count III alleges MCL § 333.5431(2) violates the Fourteenth Amendment, Count II
alleges the extraction and testing of blood spots of newborns through an MDHHS program violates
the Fourth Amendment, and Count IV alleges that medical testing of the blood spots without

informed consent violates the Fourteenth Amendment.1 Id. An amended complaint added a Count
V alleging a Fourth Amendment violation based on warrantless post-extraction testing. ECF No.
32 at PageID.485. Plaintiffs seek injunctive and declaratory relief, as well as attorney fees. ECF
No. 1 at PageID.19.
The case was originally assigned to Judge Roberts. Plaintiff LaPorte identified the case as
a potential companion case to Kanuszewski v. Michigan Department of Health and Human
Services when she filed the case. ECF No. 1. Local Rule 83.11(b)(7) explains companion cases
are cases where “substantially similar evidence will be offered at trial,” “the same or related parties
are present and the cases arise out of the same transaction or occurrence,” or “they are Social
Security cases filed by the same claimant.” The first two factors are met regarding LaPorte and
Kanuszewski. Therefore, LaPorte was determined to be a companion case and reassigned to this
Court. ECF No. 4.
On the same day the complaint was filed, Plaintiffs also filed a motion for preliminary
injunction. ECF No. 3. On March 24, 2020, Plaintiffs’ motion was denied. ECF No. 29. Plaintiffs
have since filed a notice of interlocutory appeal. ECF No. 30.
On February 8, 2018, Plaintiff LaPorte, along with Adam and Ashley Kanuszewski, and
Lynnette Wiegand, individually and as parent-guardians of their minor children, filed suit against
the Michigan Department of Health and Human Services, Nick Lyon2 (the then-Director of
MDHHS), the Dr. Sandip Shah (Director of the Bureau of Laboratories), Dr. Sarah Lyon-Callo
(state epidemiologist), Mary Kleyn (Manager of the Newborn Screening Section), Michigan
Neonatal Biobank, Inc., and Dr. Antonio Yancey (Director of the Michigan Neonatal Biobank).

Plaintiffs do not clearly differentiate between the alleged violations of the parent and child’s
rights.
2
He has now been succeeded by Robert Gordon. ECF No. 100.
1

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ECF No. 3 in 18-10472. The complaint alleged Defendants violated Plaintiffs’ Fourteenth
Amendment (substantive due process rights) by extracting and storing blood spots without
sufficient consent (Counts I and II), violated Plaintiffs’ Fourth Amendment rights by extracting
and testing the blood spots (Count III), and violated Plaintiffs’ Fourth Amendment rights by
indefinitely storing blood spots (Count IV). ECF No. 26 in 18-10472.
I.
In Kanuszewski, this Court denied Plaintiffs’ case on the merits. ECF No. 50. The Sixth
Circuit affirmed in part (primarily on standing grounds) and reversed in part (regarding damages
for ongoing storage of the blood spots). ECF No. 78. In part, the Sixth Circuit found that Plaintiffs
could not seek injunctive or declaratory relief regarding the collection of the blood sample because
it was a past harm. Id. Plaintiff LaPorte explains in the LaPorte complaint that she is now pregnant
with her third child, referred to as B.O., who is due to be born at the end of April/beginning of
May 2020. ECF No. 1 at PageID.5. Accordingly, in LaPorte v. Gordon she now seeks the
injunctive and declaratory relief denied to her in Kanuszewski due to lack of standing.
On February 14, 2020 this Court directed Plaintiffs to show cause why this case, LaPorte
v. Gordon, should not be consolidated with Kanuszewski v. Mich. Dep’t of Health & Human Serv.
See ECF Nos. 11, 12, 17.
II.
Federal Rule of Civil Procedure 42(a) provides:
If actions before the court involve a common question of law or fact, the court
may: (1) join for hearing or trial any or all matters at issue in the actions; (2)
consolidate the actions; or (3) issue any other orders to avoid unnecessary cost
or delay.
“District courts enjoy substantial discretion in deciding whether and to what extent to consolidate
cases.” Hall v. Hall, 138 S. Ct. 1118, 1131 (2018). If a case “involve[s] some common issues but
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individual issues predominate, consolidation should be denied.” Banacki v. OneWest Bank, FSB,
276 F.R.D. 567, 572 (E.D. Mich. 2011). District Courts “may issue an order of consolidation on
its own motion, and despite the protestations of the parties.” Cantrell v. GAF Corp., 999 F.2d 1007,
1011 (6th Cir. 1993). The Sixth Circuit has outlined factors for the court to consider before
consolidating cases:
Whether the specific risks of prejudice and possible confusion [of consolidating
multiple cases] are overborne by the risk of inconsistent adjudications of common
factual and legal issues, the burden on parties, witnesses and available judicial
resources posed by multiple lawsuits, the length of time required to conclude
multiple suits as against a single one, and the relative expense to all concerned of
the single-trial, multiple-trial alternatives. Cantrell v. GAF Corp., 999 F.2d 1007,
1011 (6th Cir. 1993) (quoting Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d
1492, 1495 (11th Cir. 1985)).
Plaintiff LaPorte on behalf of herself and B.O. argues the Court should not consolidate the
two cases. She differentiates between the initial blood draw and testing of the blood from the
transfer of blood spots to the Michigan Neonatal Biobank and their storage and use for medical
research. ECF No. 12 at PageID.92-93. She explains that part two (the storage and medical
research of the blood spots) is being challenged in Kanuszewski and that part one (the blood draw
and testing) is being challenged in LaPorte. Id. at PageID.94. Therefore because “the issues and
facts in dispute in Laporte are not part of the same case or controversy or derive from a common
nucleus of operative facts in Kanuszewski. [They are] [d]ifferent case[s], different facts, and
different timelines.” Id.
Defendants offer that “[h]ad the Court not issued the order to show cause, Defendants
would have filed a motion to consolidate in earnest.” ECF No. 17 at PageID.207. Defendants
explain that
[b]oth cases raise constitutional challenges under the Fourth and Fourteenth
Amendment to Michigan’s NBS program . . . both seek declaratory and injunctive
relief against defendants named in their official capacities. The allegations and
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arguments raised in LaPorte mirror those raised in Kanuszewski and, as will
become clear when Defendants begin to offer proofs, the alleged distinctions
between ‘part 1’ (the initial heel stick and screening) and ‘part 2’ (retention) of the
NBS program are not as discrete as the plaintiffs allege.”
Id. at PageID.208-209.
Here, there are minimal risks of prejudice and possible confusion if the cases are
consolidated. The Defendants are the same in both cases, with the exception for the inclusion of
the Michigan Department of Health and Human Services, Dr. Yancey and Michigan BioBank in
Kanuszewski and the addition of Mary Seeterlin, in LaPorte. Plaintiff LaPorte is a plaintiff in
Kanuszewski.
Both cases include claims regarding the substantive due process rights and Fourth
Amendment rights of Plaintiffs regarding either the initial extraction and testing or the ongoing
storage of the blood spots. The remaining claims in Kanuszewski are the parents’ substantive due
process rights as to the storage of the blood spots and the children’s Fourth Amendment rights as
to the ongoing storage of the blood spots. In LaPorte Plaintiffs allege the initial extraction violates
the Fourth Amendment and the medical testing of the blood spots violates their substantive due
process rights. Even though the details of the claims are different (initial extraction in LaPorte
versus storage in Kanuszewski), the underlying program and statute authorizing the program, MCL
333.5431(2), is the same for all claims. Also, the fact development of the two cases will be nearly
identical or at a minimum, will be complementary and knowledge of the program as to the initial
extraction will shed light on the storage portion, and vice versa. There would be an unnecessary
burden on parties, witnesses, and judicial resources if the claims were not consolidated. Defendants
correctly frame the cases as two parts of the same question. With sufficient commonalities in law
and fact between the two cases, Kanuszewski and LaPorte will be consolidated.

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III.
Accordingly, IT IS ORDERED that case number 20-10089 is CONSOLIDATED with
case number 18-10472 for all purposes, including trial.
It is further ORDERED that all subsequent papers filed after the date of this order shall be
entered on civil case number 18-10472.
It is further ORDERED that the Clerk of Court is DIRECTED to file the following
pending motions from case 20-10089 to the docket in case 18-10472 with the exact filing dates:
ECF No. 10 – Motion to Strike Jury Demand filed on 2/14/2020; ECF No. 38 – Motion to Dismiss
First Amended Complaint filed on 4/17/2020; and ECF No. 39 – Motion to Exclude Exhibits filed
on 4/18/2020. Counsel should be aware that the current response and reply deadlines for any
pending motions are unchanged.
It is further ORDERED that the Clerk of Court is DIRECTED to file the amended
complaint, ECF No. 32, from case 20-10089 to the docket in case 18-10472 with the exact filing
date of April 3, 2020.
It is further ORDERED that all parties are DIRECTED to meet-and-confer regarding a
plan for discovery and all parties are directed to share all discovery to date with all other parties.
The parties are directed to ECF No. 92 filed in civil case number 18-10472 for the scheduling
order for the consolidated cases.
It is further ORDERED that case number 20-10089 is hereby closed for administrative
purposes.
Dated: April 28, 2020

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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