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Fisher v. Winding Waters Clinic, PC

United States District Court, D. Oregon, Pendleton Division

February 13, 2017

CASSI C. FISHER as Guardian ad Litem for X.S.F., a minor, Plaintiff,


          PATRICIA SULLIVAN United States Magistrate Judge.

         Plaintiff Cassi C. Fisher, a resident of the State of Washington and mother of and guardian ad litem for X.S.F., a minor, brings this medical malpractice action against defendants Winding Waters Clinic, Dr. Elizabeth Powers, Dr. Keith DeYoung, and Dr. Renee Grandi, all residents of Oregon and providers of medical services in Enterprise, Oregon. Plaintiff's claim arises from the obstetric care that defendants provided Fisher during her pregnancy with X.S.F., and from the brain damage and other injuries that X.S.F. suffered at or before birth, allegedly due to defendants' negligent care. Plaintiff asserts one cause of action, for negligence under Oregon state law. The Court has diversity jurisdiction under 28 U.S.C. § 1332(a)(1).

         Defendants move to compel plaintiff to make X.S.F.'s blood available for genetic testing under Fed.R.Civ.P. 35(a). (Docket Nos. 33 (original Motion), 35 (Amended Motion)). Plaintiff opposes the Motions. (Docket No. 39). For the following reasons, the Court DENIES defendants' Motion and Amended Motion to Compel.


         I. Plaintiff and X.S.F.'s Medical Background

         For the purposes of providing factual background, the Court takes the following allegations from plaintiff's Amended Complaint. (Docket No. 21). Defendant Winding Waters Clinic is an Oregon medical clinic providing family medical care, including obstetric care. Id. ¶ 2. Defendants Powers, DeYoung, and Grandi are medical doctors who each practiced at Winding Waters Clinic. Id. ¶¶ 3-5. Plaintiff, a Washington state resident, received obstetric care for her pregnancy with, and delivery of, X.S.F., beginning in May 2010. Id. ¶¶ 1 & 8. At plaintiff's initial office visit, defendants identified her pregnancy as “high-risk.” Id. ¶ 9. Various warning signs presented themselves during plaintiff's pregnancy, including pregnancy-induced hypertension, [1] id. ¶ 10, and an abnormal fundal height, [2] id. ¶¶ 11 & 23. Defendants did not take certain steps to assess X.S.F.'s well-being in utero late in plaintiff's pregnancy, for example, through ultrasonography. Id. ¶ 12. On December 25, 2010, one day before her due date, plaintiff presented to defendants with leaking fluid and the possibility of a ruptured membrane; defendants conducted certain tests of X.S.F. and sent plaintiff home. Id. ¶ 13. On December 29, 2010, plaintiff followed up with defendants and although her “membranes were stripped, ” defendants again sent her home. Id. ¶ 14. On January 4, 2011, plaintiff again presented with leaking fluid and, following certain tests of X.S.F., defendants performed a Caesarian section delivery of X.S.F. Id. ¶¶ 15 & 16. X.S.F. “was delivered in a severely depressed state with significant brain damage that has continued without improvement, and is permanent.” Id. ¶ 17. Specifically, X.S.F. suffered “Partial Prolonged Hypoxic Ischemia[3] resulting in brain damage . . . with significant developmental delay, cognitive delay, learning disabilities, [and] physical disabilities . . . all of which are permanent.” Id. ¶ 23.

         II. Defendants' Proposed Genetic Testing

         Defendants argue that it was not defendants' alleged negligence that caused X.S.F.'s brain damage, but rather that “some or all of X.S.F.'s impairments are more likely than not the result of a genetic condition unrelated to prenatal care.” Defs.' Am. Mot. Compel (Docket No. 35), at 4. Defendants seek to perform genetic testing on X.S.F. to confirm this, including by conducting whole exome sequencing (“WES”).

         Defendants rely on perinatology and genetics expert Kenneth Ward, M.D. to support their Motion. Ward Decl. (Docket No. 34) ¶ 1; see also Defs.' Am. Mot. Compel. (Docket No. 35), Ex. 1 (Docket No. 35-1) (Dr. Ward's curriculum vitae). Dr. Ward testifies that, based on his review of X.S.F.'s medical records, he “believe[s] to a reasonable medical probability that [X.S.F.] has a genetic syndrome which is the cause of or a significant contributing factor of his impairments in the records including neonatal seizures, urethral stenosis, [4] hypospadias, [5]developmental delay and possible neurological damage.” Ward Decl. (Docket No. 34) ¶ 4 (footnotes added). X.S.F. has already undergone one round of genetic testing: comparative genomic hybridization (also called chromosomal microarray testing), which is the “first line” genetic testing for children with developmental disabilities or congenital abnormalities. Id. ¶ 7; see also Pl.'s Resp. (Docket No. 39), Raff Decl. ¶ 5 (“X.S.F. has had appropriate genetic testing to address the possibility of a genetic syndrome . . . .”). Dr. Ward states that “Whole Exome Sequencing and Comparative Genomic Hybridization are scientifically reliable genetic tests, which can be utilized to identify certain known genetic syndromes.” Ward Decl. (Docket No. 34) ¶ 5. Dr. Ward testifies that “[m]ost medical geneticists, ” including himself, “would advise parents as well as litigants” to undergo further genetic testing, namely, WES, “in an attempt to establish a full and correct diagnosis.” Id. ¶ 8. WES “examines the protein coding signals in . . . genes. . . . More specifically, 30 million DNA bases [are] analyzed and compared to reference (normal) gene sequences. Any abnormalities detected are compared to databases describing known genetic syndromes and diseases.” Id. ¶ 9. Dr. Ward claims that “[t]here are several diagnosable syndromes which match [X.S.F.'s] finding quite closely . . . .” Id. He concludes his declaration by repeating his “professional opinion” that “in similar cases with children like [X.S.F.] that there is a greater than 50% probability that valuable information concerning the medical diagnosis and what caused it will be uncovered through the proposed testing.” Id. ¶ 10.

         III. Plaintiff's Opposition

         Plaintiff argues that defendants' Motion to Compel is legally and factually insufficient. Pl.'s Resp. (Docket No. 39). She argues that Dr. Ward's testimony is deficient for failing to identify specific genetic syndromes or conditions for which defendants seek testing. She observes that one type of genetic testing-comparative genomic hybridization (chromosomal microarray)-has already been performed on X.S.F., with normal results, and that these test results have been provided to defendants. See Ward Decl. (Docket No. 34) ¶ 7; Pl.'s Resp. (Docket No. 39), Exs. 5 & 7.[6]

         At eight days of life, X.S.F. underwent a brain magnetic resonance imaging (MRI) scan that showed “anoxic ischemic encephalopathy.” Pl.'s Resp. (Docket No. 39), Ex. 1. X.S.F.'s treating neurologist, Erika Finanger, M.D., attributes X.S.F.'s brain injury to hypoxia (low oxygen). Pl.'s Resp. (Docket No. 39), Ex. 4, Finanger Dep. 17:5-19:4 & 56:3-13.

         Plaintiff's expert, Michael Raff, M.D., offers testimony that diverges from Dr. Ward's. Pl.'s Resp. (Docket No. 39), Ex. 2, Raff Decl. Dr. Raff testifies that, based on his review of the medical records, he “believe[s] it is unlikely that there is a genetic etiology that underlies X.S.F's encephalopathy (abnormal brain findings and cognitive delays). In other words, [he] believe[s] it is unlikely that X.S.F.'s brain damage has a genetic cause.” Id. ¶ 4. He states that “X.S.F. has had appropriate genetic testing to address the possibility of a genetic syndrome as an explanation for his . . . congenital abnormalities. Such testing included a chromosomal microarray analysis using up-to-date technology. . . . [N]o other genetic testing is medically indicated.” Id. ¶ 5. He testifies that X.S.F.'s brain MRI and electroencephalogram (EEG) scans are “consistent with hypoxic-ischemic brain damage rather than a genetic syndrome.” Id. ¶ 6. Moreover, “[o]f the known genetic syndromes that include X.S.F.'s . . . congenital abnormalities-but have no other major anomalies-none are associated with head MRI findings such as those seen in X.S.F.'s head MRI.” Id. ¶ 7.

         Dr. Raff also opines on the proposed WES testing. He asserts that it “uncovers vast amounts of genetic information that has nothing to do with the potential genetic syndrome.” Pl.'s Resp. (Docket No. 39), Ex. 2, Raff Decl. ¶ 8. He characterizes WES technology as “so new and the experience so limited” that many insurers consider it “investigational and experimental” and so do not cover it. Id. He states that WES is “not considered standard-of-care genetic testing in children for whom the remote possibility of a genetic diagnosis has been raised.” Id. ¶ 9. “Accordingly, whole exome sequencing (WES) is unlikely to determine the cause of [X.S.F.'s] brain damage.” Id.


         Defendants originally filed their Motion to Compel Genetic Testing on October 3, 2016 (Docket No. 33); they then filed their substantially similar Amended Motion to Compel Genetic Testing (Docket No. 35) the next day, on October 4, 2016.

         The Court heard oral argument in this matter on December 6, 2016. (Docket No. 46). At that hearing, the Court ordered defendants to submit supplemental briefing to address specific questions, and plaintiff to submit supplemental briefing in response. The Court's questions were: (1) what specific syndromes do defendants seek to identify in X.S.F. with WES testing; (2) with what frequency does Dr. Ward perform WES on infants with impairments similar to X.S.F.'s; (3) what additional case law or legal authority supports defendants' position that WES testing has been ordered in cases like the one before the Court, and that such orders comply with Rule 35. The parties have submitted their supplemental briefing (Docket Nos. 48-50).


         Under Fed.R.Civ.P. 35, a court “may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination.” Fed.R.Civ.P. 35(a)(1). Such an order “may be made only on motion for good cause.” Fed.R.Civ.P. 35(a)(2)(A). This rule establishes two requirements: that the mental or physical condition be “in controversy, ” and that “good cause” be shown. Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964). The Supreme Court has instructed that “good cause” requires a showing of more than mere relevance; “there must be greater showing of need under [Rule 35] than under the other discovery rules.” Id. at 118 (“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 . . . .”). Neither the “in controversy” nor the “good cause” requirement can be “met by mere conclusory allegations of the pleadings.” Id. “Rule 35, therefore, requires discriminating application by the trial judge.” Id. Rule 35 examinations must not be “ordered routinely”; “[t]he plain language of Rule 35 precludes such an untoward result.” Id. at 122.

         “‘Good cause' generally requires a showing of specific facts justifying discovery.” Franco v. Bos. Sci. Corp., No. 05-CV-1774 RS, 2006 WL 3065580, at *1 (N.D. Cal. Oct. 27, 2006). “Factors that courts have considered include, but are not limited to, the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional distress.” Id.; see Ayat v. Sociètè Air France, No. C 06-1574 JSW (JL), 2007 WL 1120358, at *5 (N.D. Cal. Apr. 16, 2007) (citing Franco factors); Mandujano v. Geithner, No. C 10-01226 LB, 2011 WL 825728, at *3 (N.D. Cal. Mar. 7, 2011) (same).

         “Even if good cause is shown, it is still within the court's discretion to determine whether to order an examination.” Franco, 2006 WL 3065580 at *1; Nguyen v. Qualcomm Inc., No. CIV. 09-1925-MMA WVG, 2013 WL 3353840, at *4 (S.D. Cal. July 3, 2013) (same). “Although the rule is to be construed liberally to allow the examination, the court must still balance the right of the party to be examined to avoid personal invasion against the moving party's right to a fair trial.” Franco, 2006 WL 3065580 at *1. The court should also ensure the parties have a “balanced opportunity” to assess plaintiff's allegations and proof. Nguyen, 2013 ...

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