United States District Court, D. Oregon, Pendleton Division
CASSI C. FISHER as Guardian ad Litem for X.S.F., a minor, Plaintiff,
WINDING WATERS CLINIC, PC, an Oregon corporation; ELIZABETH POWERS, M.D.; KEITH DeYOUNG, M.D.; and RENEE GRANDI, M.D., Defendants.
OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge.
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).
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
Plaintiff and X.S.F.'s Medical Background
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,  id. ¶ 10, and
an abnormal fundal height,  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 resulting in brain damage . . . with
significant developmental delay, cognitive delay, learning
disabilities, [and] physical disabilities . . . all of which
are permanent.” Id. ¶ 23.
Defendants' Proposed Genetic Testing
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
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,  hypospadias, 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.
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
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.
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.
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.
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.
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).
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
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).
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 ...