Burt v. Winona Health

Background

Defendants Winona Health Services, doing business as Winona Health, Grace Rasmussen, R.N., and Troy J. Shelton, M.D., appealed Magistrate Judge Franklin L. Noel’s February 23, 2018 order. The appeals challenged the denial of Defendants’ request to require Plaintiffs to undergo whole-exome sequencing (WES), a genetic test used to examine genetic information for possible causes of a medical condition.

Defendants sought WES testing to explore possible genetic causes of R.B.’s disability. The magistrate judge denied the request under Federal Rule of Civil Procedure 35, which permits a court to order a physical or mental examination when the condition is genuinely disputed and the requesting party shows good cause. The magistrate judge concluded that Defendants had not shown specific facts establishing that the testing was likely to produce relevant evidence.

The magistrate judge’s order also addressed other requests, including production of Jamie Burt’s mental-health and pharmacy records for the year before R.B.’s birth and reimbursement for expenses related to a canceled independent medical examination. The parties did not appeal those rulings.

Arguments and analysis

Defendants argued that their expert, Dr. Bradley Schaefer, had identified numerous genetic disorders and specific conditions that could have caused R.B.’s injuries. Dr. Schaefer also stated that doctors can misdiagnose a child’s injuries without genetic testing and identified medical records indicating possible genetic issues within the family.

Plaintiffs argued that Defendants had not established that R.B.’s genome was genuinely in controversy or that good cause supported what they characterized as broad genetic testing. Plaintiffs also argued that they had already provided what Rule 35 allowed because they had voluntarily submitted R.B. to an examination by Defendants’ pediatric neurologist. Alternatively, Plaintiffs argued that Minnesota’s Genetic Privacy Act barred the testing without written informed consent.

The Court held that because Plaintiffs had to prove the cause of R.B.’s injuries, R.B.’s genetic makeup was “really and genuinely in controversy.” It also held that Defendants had shown good cause based on Dr. Schaefer’s identification of possible genetic causes and the need for testing to investigate them. The Court recognized Plaintiffs’ privacy and personal-integrity concerns but found that the stipulated protective order adequately protected their genetic information. It also noted that the requested testing involved collecting only a teaspoon of blood from each Plaintiff and was minimally invasive compared with other Rule 35 examinations discussed in the opinion.

The Court rejected Plaintiffs’ argument that the Minnesota Genetic Privacy Act barred the testing. It concluded that Rule 35 permits courts to order physical examinations, including genetic testing, and that Rule 35 and Defendants’ constitutional right to a jury trial provided legal bases for ordering WES testing. The Court did not decide whether to order the more invasive “third tier” testing discussed by Dr. Schaefer, such as spinal taps.

Ruling

Judge Donovan W. Frank found that the magistrate judge’s good-cause finding was clearly erroneous. The Court granted Defendants Winona Health Services and Grace Rasmussen’s appeal and granted Defendants Troy J. Shelton and Winona Health Services’ appeal. It reversed the magistrate judge’s February 23, 2018 order in part, insofar as that order denied Defendants’ request that Plaintiffs undergo WES testing. The ruling did not affect the magistrate judge’s decisions concerning Plaintiffs’ mental-health and pharmacy records or reimbursement of expenses.