YOUNG v. THE UNITED STATES OF AMERICA

Filing 100

MEMORANDUM OPINION AND ORDER denying Defendants' 58 Motion to Compel; granting Plaintiff's 62 Motion for Protective Order; denying Defendants' 63 Motion to Compel; granting Plaintiff's 64 Motion for Protective Order. Signed by Magistrate Judge Ann Marie Donio on 9/30/2015. (TH, )

[Doc. Nos. 58, 62, 63, 64]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TAMIKA YOUNG, as parent and
natural guardian of J.Y., a
minor,

Civil No. 12-5215 (JEI/AMD)

Plaintiff,
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.

MEMORANDUM OPINION AND ORDER
In this medical malpractice action, Defendants Cooper
University

Hospital,

Heather

Crawford,

and

Beverly

Tew

(hereinafter, “Defendants”) move pursuant to Federal Rule of Civil
Procedure 35 to compel Tamika Young and Bruvon Fuller, parents of
minor-plaintiff J.Y. (hereinafter, “J.Y.”), to submit to genetic
testing. (See Motions to Compel [Doc. Nos. 58, 63].) Both parents
oppose

the

motion

and

seek

protective

orders

precluding

the

requested examinations. (See Motions for Protective Order [Doc.
Nos. 62, 64].) Defendant United States of America takes no position
on the issue. (See Transcript [Doc. No. 77], Mar. 13, 2015, 4:1821].) For the reasons set forth herein, the Court denies the

1

motions to compel [Doc. Nos. 58, 63] and accordingly grants the
motions for protective orders [Doc. Nos. 62, 64].
The

present

litigation

is

based

on

the

purportedly

negligent delivery of J.Y. by cesarean section on April 6, 2009,
which allegedly resulted in J.Y. “suffer[ing] great physical pain
. . . , permanent brain damage, and other injuries . . . .” (Amended
Complaint [Doc. No. 30], ¶ 40.) Specifically, Plaintiff alleges
that as a result of Defendants Heather Crawford, Shaurin Patel 1,
and Beverly Tew’s “negligent acts and/or omissions” J.Y. was not
“promptly and properly” delivered after those Defendants noted
signs of fetal distress. (Id. at ¶ 49.) As a result, Plaintiff
alleges J.Y. was delivered in a “severely asphyxiated” state,
“sustained a brain bleed,” and was hospitalized for five (5) months
following

delivery.

(See

id.

at

¶¶

35,

37,

39.)

Plaintiff

consequently seeks monetary damages in “an amount to be determined
by the Court together with the costs of this action.” (See, e.g.,
id. at ¶ 47.)
Defendants generally assert there was no “deviation from
approved standards of medical and/or nursing care[,]” and further
assert J.Y.’s injuries “were caused by factors other than, and

On March 2, 2015, the parties submitted a proposed stipulation
of dismissal with respect to Defendant Shaurin Patel. (See
Stipulation of Dismissal [Doc. No. 70].) By Order dated March 6,
2015, the District Court dismissed with prejudice any claims
against Defendant Shaurin Patel. (See Voluntary Stipulation and
Order of Dismissal with Prejudice [Doc. No. 71], Mar. 6, 2015, 1.)
1

2

unrelated to, the actions of the answering defendant(s), including
but

not

limited

to

pre-existing

medical,

genetic,

and/or

environmental conditions, disease, or illness.” (See Answer [Doc.
No. 39], 3.) Defendants assert a number of legal defenses as well
as

crossclaims

for

indemnification

and

contribution.

(See

generally Answer [Doc. No. 34]; see also Answer [Doc. No. 35]; see
also Answer [Doc. No. 39].)
The issue presently before the Court pertains to the
Defendants’ motions to compel Ms. Young and Mr. Fuller to submit
to genetic testing. 2 The pending motions are based on the opinion
set forth by Dr. Aubrey Milunsky, Defendants’ “expert in the area
of human genetics.” (See Certification [Doc. No. 58-1], ¶¶ 4-5;

2

In opposition to the pending motions, both parents allege the
motions are untimely because they were filed approximately three
(3) months after the pretrial factual discovery period concluded.
(See Motions for Protective Order [Doc. Nos. 62, 64], 2-3; see
also Amended Scheduling Order [Doc. No. 44], Sept. 15, 2014, 1
(setting the fact discovery end date at October 31, 2014).)
Pursuant to Federal Rule of Civil Procedure 16(b)(4), “[a] schedule
may be modified only for good cause and with the judge’s consent.”
“‘[G]ood cause’” under Rule 16(b)(4) “‘hinges on [the] diligence
of the movant[.]’” Ewing v. Cumberland Cty., No. 09-5432, 2014 WL
3974159, at *4 (D.N.J. July 16, 2014) (citation omitted). Here,
Defendants assert good cause exists to consider the motions to
compel because they “have a compelling interest in proving their
actions were not the cause of [J.Y.’s] disabilities,” Ms. Young
and Mr. Fuller “will only have to undergo the limited inconvenience
of
having
blood
drawn,”
and
“the results of the test may have a profound impact on the
liability and damages in this case.” (Brief [Doc. No. 58-2], 2-3;
see also Brief [Doc. No. 63-2], 2-3.) As the Court has denied the
motion on other grounds, the Court need not address the timeliness
issue.
3

see also Exhibit [Doc. No. 58-3] (setting forth Dr. Milunsky’s
expert report).) Dr. Milunsky states that “a range of genetic tests
were performed” on J.Y. and a “SNP microarray” of J.Y.’s DNA
revealed “a microdeletion” within a specific chromosome “resulting
in the deletion of at least three genes.” 3 (See Exhibit [Doc. No.
58-3], 3 on the docket.) Dr. Milunsky opines that such a deletion,
“if not inherited, may well explain” J.Y.’s mental and physical
injuries. (Id.) Dr. Milunsky further opines that the effect of
J.Y.’s

genetic

whether

abnormality

either

of

his

“will

parents

be

clarified

harbor

this

by

determining

deletion.”

(Id.)

Accordingly, Defendants seek a court order compelling Ms. Young
and

Mr.

Fuller

testing[]”

to

to

“have

determine

blood

drawn

for

whether

they

also

subsequent
have

the

genetic
genetic

abnormality identified by Dr. Milunsky. (See, e.g., Certifications
[Doc. Nos. 58-1, 63-1], ¶ 13.) Defendants generally contend Ms.
Young and Mr. Fuller’s physical conditions are in controversy and
good cause exists for such an order because if Defendants “can
show that the genetic deletion is the product of mutation and that
the

deletion

is

the

cause

of

at

least

some

of

[J.Y.’s]

disabilities, then Defendants[’] liability for [J.Y.’s] injuries
will be significantly reduced.” (Id. at ¶ 11.) Defendants further
describe the issue as having a “profound impact on the cause of

3

Dr. Milunsky identified those genes as CCDC129, C7orf16, and
PDE1C. (Exhibit [Doc. No. 58-3], 3 on the docket.)
4

[J.Y.’s]

disabilities”

and,

consequently,

on

Defendants’

liability. 4 (Brief [Doc. Nos. 58-2, 63-2], 2.)
In opposition, Ms. Young and Mr. Fuller 5 argue that
Defendants

have

not

demonstrated

the

requested

physical

examinations are warranted. (Motions for Protective Order [Doc.
Nos. 62, 64], ¶¶ 10-11.) In addition, both parents contend they
are not parties to the litigation as neither have asserted any
individual claims. (See Motions for Protective Order [Doc. Nos.
62, 64], 3.)
Physical and mental examinations are governed by Federal
Rule of Civil Procedure 35, which provides in pertinent part:
The court where the action is pending may
order a party whose mental or physical
condition — including blood group — is in
controversy to submit to a physical or mental
examination
by
a
suitably
licensed
or
certified examiner. The court has the same
authority to order a party to produce for
examination a person who is in its custody or
under its legal control.

4

In the reply brief, Defendants assert that if the Court denies
the pending motions to compel [Doc. Nos. 58, 63], Plaintiff should
be “estopped” from disputing the credibility of Dr. Milunsky’s
expert report at trial. (See Brief in Opposition [Doc. No. 66], 46.) As the Court previously noted on the record, such a request
should be raised in the context of a motion in limine. (See
Transcript [Doc. No. 77], Mar. 13, 2015, 14:3-21.)
Counsel for Ms. Young represents Ms. Young and non-party Mr.
Fuller for the purposes of the pending motions. (See Transcript
[Doc. No. 77], Mar. 13, 2015, 4:6-12.)
5

5

FED. R. CIV. P. 35(a)(1) (hereinafter, “Rule 35”). As further set
forth in Rule 35, an order compelling a party to submit to a
physical or mental examination “may be made only on motion for
good cause and on notice to all parties and the person to be
examined[.]” FED. R. CIV. P. 35(a)(2). Accordingly, an examination
pursuant to Rule 35 may only be ordered when the condition of the
person sought to be examined “is ‘in controversy’ and there is
‘good cause’ to order the examination.” McLaughlin v. Atl. City,
No.

05-2263,

2007

WL

1108527,

at

*2

(D.N.J.

Apr.

10,

2007)

(citation omitted).
“[G]ood

cause”

under

Rule

35,

however,

requires

a

“greater showing of need . . . than under other discovery rules.”
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). “The specific
requirement of good cause would be meaningless if good cause could
be sufficiently established by merely showing that the desired
materials are relevant, for the relevancy standard has already
been imposed by [Federal Rule of Civil Procedure] 26(b).” Id.; see
also Montana v. Cty. of Cape May Bd. of Freeholders, No. 09-755,
2013 WL 5724486, at *2 (D.N.J. Oct. 18, 2013) (noting that the
good cause standard “must be higher than the general relevancy
standard”). A movant must “affirmative[ly]” demonstrate “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.” Schlagenhauf, 379 U.S. at 118. The
6

movant’s burden is not satisfied by “mere conclusory allegations
of the pleadings — nor by mere relevance to the case[.]” Id.
“Mental and physical examinations are only to be ordered upon a
discriminating

application

by

the

district

judge

of

the

limitations prescribed by [] Rule [35]. To hold otherwise would
mean that such examinations could be ordered routinely [and] [t]he
plain language of Rule 35 precludes such an untoward result.” Id.
at 121-22; see also McLaughlin, No. 05-2263, 2007 WL 1108527, at
*2.
In addition to the good cause standard, a party seeking
a Rule 35 examination must demonstrate that the person to be
examined is “a party” or “a person who is [either] in [a party’s]
custody or under [a party’s] legal control.” FED. R. CIV. P.
35(a)(1). The Court is without authority to compel a non-party to
submit to an examination under Rule 35. See Cutting v. United
States, No. 07-2053, 2008 WL 5064267, at *2 (D. Colo. Nov. 24,
2008) (finding “the [c]ourt must recognize its own jurisdiction,
which, under persuasive authority, rejects [Rule] 35’s reach to
nonparties” (citing Dunford v. Rolly Marine Serv. Co., 233 F.R.D.
635, 637 (S.D. Fla. 2005); Caban ex rel. Crespo v. 600 E. 21st St.
Co., 200 F.R.D. 176, 181 (E.D.N.Y. 2001))). For the reasons that
follow, the Court concludes that neither parent falls within the
definition of a party. Accordingly, the motions are denied on this

7

basis and the Court need not address the good cause standard for
the requested genetic testing.
Defendants generally contend J.Y.’s parents are parties
because they

are

involved

in

the

pending

litigation

and

are

financially “interested” in its outcome. (See generally Brief in
Opposition [Doc. No. 66]; see also Transcript [Doc. No. 77], Mar.
13, 2015, 6:6-24.) Specifically, Defendants assert Ms. Young “is
essentially a party[]” because she is J.Y.’s representative and is
currently bringing the pending litigation on J.Y.’s behalf. (Brief
in Opposition [Doc. No. 66], 3.) In addition, Defendants contend
Ms. Young should be considered a party based on her purported
financial interest in the litigation, as any monetary judgment
“would greatly ease her financial burden in providing care for
[J.Y.].” (Id.) Defendants assert Mr. Fuller should be considered
a party based on the same purported financial interest (Transcript
[Doc.

No.

77],

obligations

with

Mar.

13,

respect

2015,
to

6:22-24),

J.Y.

would

because
be

his

alleviated

support
by

any

monetary judgment. (See Brief in Opposition [Doc. No. 66], 3.)
Both parents dispute the characterization that they are parties
under Rule 35, and note that neither has asserted any individual
claims in the litigation. (See Motions for Protective Order [Doc.
Nos. 62, 64], 6-7.)
The Court first addresses the issue with respect to Mr.
Fuller. Mr. Fuller has neither asserted an individual claim nor
8

has a representative role in the pending litigation. Although
conceding that Mr. Fuller is “not a named party (see Transcript
[Doc. No. 77], Mar. 13, 2015, 6:22-23), Defendants attempt to evade
Mr. Fuller’s non-party status by describing him as “interested” in
the litigation. (Id. at 5:17-18, 6:6-7.) However, Defendants do
not proffer any specific allegations or case law in support of the
assertion that an individual’s interest in a litigation, no matter
how attenuated, can render that individual a party for the purposes
of Rule 35 or that such a person may be compelled by court order
to submit to an examination. In Cutting v. United States, a case
factually similar to the present case, a father brought an action
on behalf of his minor son in his capacity as “next friend and
parent” in which he alleged the “[d]efendants provided negligent
medical care during the [son’s] delivery . . . which resulted in
a

brain

injury.”

No.

07-2053,

2008

WL

5064267,

at

*1.

The

defendants sought to compel, among other things, the minor son and
his mother to submit to genetic testing under Rule 35(a) based on
their assertion that “the [son’s] injury was or could have been
caused by other circumstances.” Id. The court in Cutting found
that the defendants had established “the relevance and importance
of genetic testing on the child’s mother,” but denied the request.
Id. Specifically, the Cutting court rejected Federal Rule of Civil
Procedure 35’s application to a nonparty. Id. The court also
rejected any argument that it possessed the “inherent authority”
9

to order such testing and did “not believe that, under Rule 35’s
language, [the mother] should be considered a party.” Id. The Court
finds that Rule 35 does not apply to non-parties, and consequently,
denies the motion to compel Mr. Fuller to submit to genetic
testing.
The Court next examines whether Ms. Young falls within
the definition of a party in light of the fact that she is serving
a representative role under Federal Rule of Civil Procedure 17(c).
(See Transcript

[Doc.

No.

77],

Mar.

13,

2015,

6:6-24.)

Rule

17(c)(1) provides that “(A) a general guardian; (B) a committee;
(C) a conservator; or (D) a like fiduciary” are “representatives
[who] may sue or defend on behalf of a minor[.]” FED. R. CIV. P.
17(c)(1). “An incompetent person appears by his next friend, a
nominal party. The person under a disability is the real party.”
Crawford v. Loving, 84 F.R.D. 80, 87 (E.D. Va. 1979) (citing Morgan
v. Potter, 157 U.S. 195, 198 (1895)); see also 6A Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND
PROCEDURE, § 1570, at 675-76 (3d ed. 2010) (stating “[i]n any action
in which a guardian ad litem or next friend sues or defends on
behalf of an infant or incompetent, the representative is a nominal
party only; the action must be brought in the name of the real
party in interest – the infant or incompetent”).
While

no

party

has

cited

any

binding

authority

addressing whether Rule 35 is applicable to a minor-plaintiff’s
10

representative or natural guardian who is bringing the action on
behalf of the minor-plaintiff, a number of courts have rejected
expanding Rule 35 to a parent suing on behalf of a child. In Caban
ex rel. Crespo v. 600 E. 21st St. Co., the District Court in the
Eastern District of New York denied the defendant’s motion to
compel a mother, who was bringing a negligence action “in her
capacity as the natural guardian” of her daughter, to submit to a
psychological examination or IQ testing. 200 F.R.D. at 177-178.
The Caban court “decline[d] to expand the scope of Rule 35 to
include

representatives

and

natural

guardians

of

infant-

plaintiffs[.]” Id. at 181. The court in Caban noted “[i]n other
contexts,

courts

have

distinguished

between

the

rights

and

obligation of individuals suing on their own behalf and those suing
in a representative capacity[,]” and that courts “have almost
uniformly held that a federal court lacks the authority under Rule
35(a) to order a parent, suing on behalf of an infant-plaintiff,
to submit to an examination[.]” 200 F.R.D. at 179; 6 see also M.S.
v. Cedar Bridge Military Acad., No. 08-2271, 2011 WL 1838885, at
*4-5 (M.D. Pa. May 13, 2011) (denying a motion to compel a minor’s
parents to participate in the child’s psychiatric examination
because a “child’s parents, while acting on his behalf, are not

6

The Court in Caban also noted that the defendants failed to
establish “good cause” for the psychological testing. 200 F.R.D.
at 182 n.17.
11

separate parties who may be independently compelled under Rule
35[]”). 7

These

cases

are

in

accord

with

the

Supreme

Court’s

admonition in Schlagenhauf that “Rule 35 only requires that the
person to be examined be a party to the ‘action,’ not that he be
an opposing party vis-à-vis the movant.” 379 U.S. at 115. 8

7

Defendants assert M.S., No. 08-2271, 2011 WL 1838885, leaves
open the possibility that in “appropriate circumstances” a court
may compel a parent to submit to a physical examination regardless
of their role in the litigation. (See Response in Support [Doc.
No. 75], 2.) The Court rejects this argument as the court in M.S.
denied a motion to compel a minor-plaintiff’s parents to
participate in a mental examination of their child. See M.S., No.
08-2271, 2011 WL 1838885, at *5.
8

In Cruz v. Super. Ct., a case not cited by either party, a
California state court left open the possibility that a non-party
may be compelled to submit to a physical examination. 121
Cal.App.4th 646 (Cal. Ct. App. 2004). The state court in Cruz held
pursuant to California Civil Procedure Code § 2032(a) – the state’s
analog to Rule 35 – that a minor’s mother could be compelled to
submit to genetic testing in a birth injury medical malpractice
action. 121 Cal.App.4th at 652. The specific provision provides
that “[a]ny party may obtain discovery . . . by means of a physical
or mental examination of (1) a party to the action, (2) an agent
of any party, or (3) a natural person in the custody or under the
legal control of a party, in any action in which the mental or
physical condition (including the blood group) of that party or
other person is in controversy in the action.” CAL. CIV. PROC. CODE
§ 2023.020(a). In 2004, § 2032 became § 2032.020. See CAL. CIV.
PROC. CODE § 2023.020 law revision commission comments 2004 addition
(stating “[s]ubdivision (a) of Section 2032.020 continues former
Section 2032(a) without change”). The Cruz court concluded that
because the statute applied to an “agent” of a party, the term
“agent” was “sufficiently broad to include [the minor’s] mother
under the facts of [the] case.” Id. at 652. In Cruz, the court
considered the mother the minor’s agent because the complaint
alleged the minor’s “injury resulted in part from the manner in
which [the defendant] treated [the] mother during her pregnancy
and [the] delivery[,]” and because the mother had “a definable
economic interest in the outcome of the suit.” Id. The Cruz court’s
holding was limited, and the court expressly stated that “[w]e do
12

The Court finds Rule 35 does not authorize a court to
order representatives or natural guardians of minor-plaintiffs to
submit to genetic testing. The Court further rejects Defendants’
attempt to characterize Ms. Young as a party based on her purported
“financial interest” in the litigation. Ms. Young’s purported
interest in obtaining a monetary judgment for her child does not
render her within the scope of Rule 35. The Court consequently
denies Defendants’ motion to compel Ms. Young to submit to genetic
testing and grants Plaintiff’s motion for a protective order.
Alternatively, Defendants allege the Court should, in
its discretion and in light of the “magnitude of damages” asserted
by

Plaintiff,

“reexamine

the

application

of

[Rule]

35

as

it

pertains to minimally invasive testing of parents of a minor
plaintiff who clearly have a vested interest in the outcome of the

not hold that a parent is always to be treated as a child’s agent
for discovery purposes.” Id. Cruz is not binding authority and the
Court is unpersuaded by Cruz. First, the Court rejects the argument
that a parent’s alleged financial interest in obtaining monetary
relief for injuries sustained by a minor constitutes an interest
sufficient to compel an examination of the parent under Rule 35.
Second, it was the factual circumstances in Cruz, specifically the
mother’s medical treatment by defendant during her pregnancy and
not the mother’s status as guardian ad litem, on which the Cruz
court based its conclusion that the mother was the minor’s agent
for purposes of being compelled to submit to medical testing.
Third, the scope of the applicable California code is significantly
broader than the scope of Rule 35 and expressly authorizes a court
to compel a party’s “agent” to submit to medical testing under
certain circumstances. Rule 35 includes no such authorization.
Compare CAL. CIV. PROC. CODE § 2023.020(a), with FED. R. CIV. P. 35.

13

case.” (Response in Support [Doc. No. 75], 2 on the docket.) In
essence, Defendants request this Court conduct a proportionality
analysis

to

determine

whether

a

motion

to

compel

a

medical

examination of parents – in this case a blood test - pursuant to
Rule 35 should be granted. However, such a proportionality analysis
is counter to the express language of Rule 35. See, e.g., Caban ex
rel. Crespo, 200 F.R.D. at 181 (“declin[ing] to expand the scope
of Rule 35 to include representatives and natural guardians of
infant-plaintiffs[]”). The Court declines to expand the scope of
Rule 35. The Court does not possess the inherent authority “to
order a non-party to submit to a physical or psychological exam.”
200 F.R.D. at 180.
Having determined that Rule 35 does not provide for
examination of Ms. Young and Mr. Fuller to submit to genetic
testing, the Court finds good cause to grant Plaintiff’s motions
for protective orders [Doc. Nos. 62, 64] under Federal Rule of
Civil Procedure 26. Federal Rule of Civil Procedure 26(c) expressly
permits the Court to issue, for good cause, an order “forbidding
[certain] disclosure or discovery.” FED. R. CIV. P. 26(c)(1)(A).
Here, the requested discovery is not permitted and therefore the
Court finds protective orders are warranted. See, e.g., Ruiz-Bueno
v. Scott, No. 12-0809, 2013 WL 6122399, at *2 (S.D. Ohio Nov. 21,
2013) (noting “[s]ome types of protective orders may be granted on
grounds that information being sought by an opposing party is
14

simply not discoverable”). Consequently, for the reasons set forth
herein, and for good cause shown,
IT IS on this 30th day of September 2015,
ORDERED that Defendants’ motion to compel Tamika Young
to submit to genetic testing pursuant to Federal Rule of Civil
Procedure 35 [Doc. No. 58] shall be, and is hereby, DENIED; and it
is further
ORDERED that Defendants’ motion to compel Bruvon Fuller
to submit to genetic testing pursuant to Federal Rule of Civil
Procedure 35 [Doc. No. 63] shall be, and is hereby, DENIED; and it
is further
ORDERED that Plaintiff’s motion for a protective order
precluding any genetic testing of Tamika Young [Doc. No. 62] shall
be, and is hereby, GRANTED; and it is further
ORDERED that Plaintiff’s motion for a protective order
precluding any genetic testing of Bruvon Fuller [Doc. No. 64] shall
be, and is hereby, GRANTED.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc: Hon. Joseph E. Irenas

15