Burt et al v. Winona Health et al

Filing 120

ORDER - 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 is GRANTED. 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 is GRANTED. Magistrate Judge Franklin L. Noel's February 23, 2018 Order (Doc. No. 91 ) is REVERSED IN PART insofar as it denied Defendants request that Plaintiffs undergo WES testing. (Written Opinion) Signed by Judge Donovan W. Frank on 8/1/2018. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jamie Burt and Mitchell Burt, each
individually and as Parents and Natural
Guardians of R.B., a minor,

Civil No. 16-1085 (DWF/FLN)

Plaintiffs,
v.

ORDER

Winona Health; Winona Health Services;
Winona Health’s Women’s Health Center;
Troy J. Shelton, M.D.; and Grace Rasmussen,
R.N.,
Defendants.

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
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The Magistrate Judge also denied in part and granted in part Defendants’ two
other requests, (1) ordering that Plaintiffs produce Jamie Burt’s mental health and
pharmacy records for the one year leading up to R.B.’s birth, and (2) denying
Defendants’ request that Plaintiffs pay reimbursement fees for “the expenses Defendants
incurred for their out-of-state experts to travel to Wisconsin for an [independent medical
exam] that Plaintiffs cancelled minutes before it was scheduled to start.” (See Doc.
No. 91 at 4, 7.) Defendants do not appeal those decisions.
2

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
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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
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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
2

Defendants submitted a Supplemental Objection to Magistrate’s Order Denying
Whole Exome Sequencing (“Supplemental Objection”) and provided the Court with
excerpts from four expert depositions, including Dr. Schaefer’s, that Defendants say
support their appeal. (Doc. No. 115.) Plaintiffs urge the Court to disregard the
Supplemental Objection, arguing that it is inappropriate to consider evidence that was not
part of the record that the Magistrate Judge considered. Defendants reply that there is no
caselaw prohibiting a court from considering supplemental evidence where, as here, the
matter is before the Court on a non-dispositive motion. (Doc. No. 119.) The Court does
not need to resolve this dispute. The Court reaches its conclusion without considering the
supplemental evidence. However, the Court also notes that the expert testimony further
entrenches R.B.’s genetic makeup into the parties’ dispute over causation. Indeed,
Plaintiffs’ experts acknowledge that genetic disorders may have caused R.B.’s injuries.
(Doc. No. 116-1 at 3-4, 9-10, 17-19.)
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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 described
by clause (2).

Minn. Stat. § 13.386. Plaintiffs argue that the Genetic Privacy Act grants Plaintiffs a
privilege in their genetic information and that Rule 35 is not an exception to the statute.
However, the language of Rule 35 plainly permits courts to order parties to undergo “a
physical or mental examination” and does not identify any types of examinations that are
exempt from the rule. Genetic testing, including WES, is therefore within the array of
examinations that Rule 35 envisions. The Court concludes that Rule 35 and Defendants’
constitutional right to a jury trial provide legal bases for the Court to order WES testing.
3

With this order, the Court grants Defendants’ request that Plaintiffs undergo WES
testing, which Dr. Schaefer describes as a “second level [genetic] test.” (Doc. No. 116-1
at 29.) The Court does not undertake any Rule 35 analysis regarding what Dr. Schaefer
describes as a “third tier of testing,” i.e., “things that are more invasive like spinal taps
and those sorts of things.” (Id.)
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Although immaterial to the ruling, the Court notes that aspects of this outcome
may best serve the interests of all parties. Had the Court denied Defendants’ request, the
parties and Court surely would have faced significant pretrial evidentiary issues,
including Daubert motions, concerning the experts’ competing causation opinions and
the effect of Plaintiffs not completing WES testing. In the end, by undergoing WES
testing, Plaintiffs may bolster their claim that Defendants’ mismanagement of labor
caused R.B.’s injury.
Here, the Court is left with a “definite and firm conviction that a mistake has been
committed” concerning the Magistrate Judge’s good-cause findings. Although this is a
close call, the Court finds that Magistrate Judge Noel’s Order is clearly erroneous. The
Court therefore grants Defendants Winona Health Services, d/b/a Winona Health’s and
Grace Rasmussen, R.N.’s appeal and Defendants Troy J. Shelton, M.D.’s and Winona
Health Services d/b/a Winona Health’s appeal and reverses Magistrate Judge Noel’s
February 23, 2018 Order insofar as it denies Defendants’ request that Plaintiffs undergo
WES testing. The Court’s order does not have any effect on the Magistrate Judge’s
denial of Defendants’ requests for Plaintiffs’ mental health/pharmacy records and
reimbursement of expenses.
Accordingly, IT IS HEREBY ORDERED that:
1.

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 is GRANTED.

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2.

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 is GRANTED.
3.

Magistrate Judge Franklin L. Noel’s February 23, 2018 Order (Doc.

No. [91]) is REVERSED IN PART insofar as it denied Defendants’ request that
Plaintiffs undergo WES testing.
Dated: August 1, 2018

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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