Kazan, McClain, Satterley, Lyons, King & Spalding, LLP Greenwood & Oberman Attn: Stewart, Jennifer T. Attn: Bosi, Justin 101 Second Street, Suite 2300 Jack London Market San Francisco, CA 94105 55 Harrison St., Suite 400 Oakland, CA "94607 Superior Court of California, County of Alameda Rene C. Davidson Alameda County Courthouse Reyes No, RG20052391 Plaintii/Petitionens) Order vs, Motion Discovery of a blood Denied The Motion Discovery of a blood was set for hearing on 09/04/2020 at 10:00 AM in Department 18 before the Honorable Jo-Lynne Q. Lee. The Tentative Ruling was published and was contested, The matter was argued and submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: The tentative ruling is affirmed as follows: Defendant Honeywell International, Inc's ("Honeywell") Motion to Obtain Discovery ofa Blood and/or Saliva Sample for Genetic Testing (the "Motion to Compel’)is DENIED. The Court ins that Honeywell as not made the showing necessary to overcome plaintiff Rosalino Reyes II's ("Plaintiff") privacy interests in his genetic information, LEGAL STANDARDS IA] civil litigant’ right to discovery is broad," (Yelp Inc. v. Superior Court (2017) 17 Cal. App. Sth 1 15.) "[AJny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject maiter involved in the pending action... ifthe matter ether is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (CCP § 2017.010.) *[S}tatutes governing discovery ‘must be construed liberally in favor of disclosure unless the requ clearly improper by virtue of well-established causes fr dni" (Yelp. Inc. 7 Cal App. Sthat 15 {internal citations omitted.) "This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it." (Id.) is [A] person has a privaey interest in his or her own DNA profile and genet information.” (County of San Diego v. Mason (2012) 209 Cal. App.dth 376, 381,) This is a "strong privacy interest,” but it "is not absolute... and can be abridged for a compelling opposing interest where laws are in place to limit use of the DNA to a specific purpose intended to satisfy that interest." (id, ) "Courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 842; SCC Acquisitions Inc. v. Sup.Ct. (2013) 243 Cal. App.dth 741, 754.) The specific medical information sought must be "directly relevant to her claim and essential to a fair resolution of" the action, (Vinson, supra.) ANALYSIS OF MOTION TO COMPEL Plaintiff compares the present Motion to Compel to a motion to compel genetic testing on a tissue Ordersample from a deceased mesothelioma plaintiff, which this Court granted in the case Ortwein v CertainTeed Corp., Alameda Superior Court Case No. RG 13-701633 on 12/22/2014 (the "Ortwein Order"). (See Moving Turmer Dec. at Exh. K.) The Ortwein Order is indeed instructive with respect to the present Motion to Compel, but not for the reasons Plaintiff contends. Instead, there were crucial differences between the Ortwein motion to compel and the evidence presented therein and the present Motion to Compel First, while the Ortwein motion was pending, plaintiff died. This Court held that because her privacy right in her genetic information was "purely personal," that privacy right did not survive the Ortwein plaintif?s passing, citing Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821-822. (See Turner Dec. Exh, K at p. 14.) In the present action, Plaintiff is still alive and thus retains his "strong privacy interest” in his personal genetic information. (County of San Diego, supra.) Second, the Ortwein motion to compel sought very specifically genetic information regarding whether the Ortwein plaintiff had a specific BAP] gene mutation that "makes a person susceptible to mesothelioma." (Turner Dec. Exh. K at pp. 16-18.) In the present Motion to Compel, Honeywell's moving and reply briefs and its medical expert witness (Dr. Richard Attanoos) declaration are all notably vague regarding what specific genetic mutation(s) Honeywell is seeking to determine whether Plaintiff has in his DNA. Honeywell's Moving MPA identifies only that it secks a "genetic mutation, or group of mutations, that played a role in" Plaintif’s mesothelioma and that the "current best available scientific evidence is that some mesotheliomas are linked to inherited germline [ie., genetic] mutations." (Moving MPA at pp. 3:8-9, 6:21-22.) Pages 7-8 of the Moving MPA discusses various scientific journal articles attached as Exhibits D, E, F, M and N to the Moving Turner Declaration which regard the connection between BAP mutations and people with mesothelioma, but the Moving MPA nowhere states that Honeywell is specifically seeking information regarding BAP1 mutations or any other specific genetic mutations in Plaintiff's DNA. Dr. Attanoos' Declaration is equally vague as to what, if any, specific genetic mutations may support his professional opinion that genetic mutations can be a separate and distinct cause of Plaintiffs peritoneal malignant mesothelioma (the Court notes that the parties do not appear to dispute that Plaintiff was diagnosed with peritoneal malignant mesothelioma at the relatively young age of 52) exclusive of asbestos exposure. Although noting at § 18 that "a number of studies have demonstrated the frequency of BAP! mutations among malignant mesothelioma patients," €§ 21-23 of the Attanoos Dec state in relevant part: "The testing of [Plaintif?s] tumor tissue alone cannot identify inherited genetic mutations that MIGHT be implicated in the development of his peritoneal mesothelioma. The results of genetic sequencing analysis for inherited mutations, .., are LIKELY to provide information relevant to the development and/or cause of Plaintiff's disease. "There is a substantial scientific basis to consider [Plaintiff's] genetic profile played a role in the development of his disease: [listing factors]. "It is my opinion that the presence of a constitutional abnormality of a germline mutation CAN BE a wholly independent cause of mesothelioma, absent any asbestos exposure, Therefore, obtaining a sample will allow for testing that is LIKELY to lead to the discovery of highly relevant information on the issue of causation of [Plaintiff's] peritoneal mesothelioma. [Citation to Exh, F of Turner Dec." [All caps added.] The Attanoos declaration is extremely vague regarding what specific genetic mutations can be an entirely independent cause of peritoncal mesothelioma or mesothelioma generally and what scientific support he has for this opinion, other than a single citation to the journal article attached as Exh. F to the Tumer Dec. In faet, based on the Court's reading of Exh F, this journal article does not support Dr. Attanoos' opinion that germline mutations can be a wholly independent cause of mesothelioma. (See Exh. F, Concluding Remarks at p. 1114: "reduced levels of BAPI.,..., increase the amount of genetic damage that occurs spontancously as cells divide, or that occurs in responses to exposure to environmental carcinogens:" at p. 1115: "BAP!'s role in increasing susceptibility to asbestos, UV light, and ionizing radiation has been established in primary human fibroblasts and mesothelial cells in culture;" and "This critical question shall be addressed in the coming years to understand why germline OrderBAP mutations cause or are present as somatic mutations more frequently in mesothelioma,...") The Court notes that under California law, if genetic mutation merely makes a plaintiff’ more susceptible to developing mesothelioma as a result of asbestos exposure, it would not exonerate a defendant who exposed the plaintiff to asbestos. (See CACI Jury Instruction No. 3928, citing Ng v. Hudson (1977) 75 Cal. App.3d 250, 255, overruled on other grounds by Soule v. G.M. Comp. (1904) 8 Cal-4th 548, 574 and Rideau v. Los Angeles Transit Lines (1954) 124 Cal. App.2d 466, 471.) Further, although Plaintif?s Opp. MPA at pp. 3:13~4:1 raises the issue that the Ortwein defendant sought only limited genetic testing for one specific BAP] mutation and that Honeywell herein secks broader and less specifically defined genetic testing, Honeywell's Reply fails to address this issue. Finally, the Court recalls that with respect to the Ortwein motion there was evidence in the record that other members of the Ortwein plaintiff's immediate family had developed mesothelioma, a relatively rare disease. The Ortwein Order states in relevant part: "The court expressly does not address whether it ‘would order or permit genetic testing as a matter of course in the absence of some family history of mesothelioma.” (Turner Dec. Exh, K at p. 19.) In the present case, there is no evidence that any of Plaintiff's family members have been diagnosed with mesothelioma. Plaintiff points to deposition testimony that other of Plaintiff's immediate family members have died of cancer, but there is no evidence that these cancers were mesothelioma or the other cancers identified in the cited medical journal articles as being associated with BAPI "cancer syndrome.” (See e.g., Turner Dec. Exh. F at p. 1106 at "BAP! Germiline Mutations.") The Court finds that in balancing the interests of the parties, Honeywell has not made the showing necessary for this Court to conclude that the information sought is directly relevant to the claims and defenses in this action and that the discovery sought is essential to a fair resolution of this action, Instead, Honeywell’ vague and ambiguous request appears to be a "fishing expedition," insofar as Honeywell has failed to identi: (1) what specific genetic mutations itis seeking to learn whether Plaintiff has: (2) what specific arguments or defenses Honeywell intends to make if Plaintiff has that ‘genetic mutation(s); and (3) the scientific basis for such an argument or defense such that expert witness testimony on the matter would potentially be admissible at trial. Wherefore, the Court DENIES Honeywell's Motion to Compel. Dated: 09/04/2020 , ag G Tudge Jo-Lynne Q. Lee OrderSHORT THEE Reyes VS Johnsond& Johnson CASE NUMBER: RG20052391 ADDITIONAL ADDRESSES Ongaro PC Attn: Ongaro, David R 1604 Union Street San Francisco, CA 94123___ DENTONS US LLP Attn: DeJardin, Bradford J One Market Plaza Spear Tower, 24th Floor San Francisco, CA 94105 Bares & Thomburg, Attn: Murdica, James F 2029 Century Park East Suite 300 Los Angeles, CA 90067 Barnes & Thomburg LLP Attn: Noureddini Esq, Noushan 2029 Century Park East Suite.300 San Diego. CA 92101__ Hugo Parker, LLP Attn: Hugo, Edward R. 240 Stockton Street 8th Floor San Francisco, CA 94108__ OrderSemper Law Group LLP Attn: Tavera, Leonard M 330 N. Brand Boulevard Suite 235 Glendale, CA 91203__ ~ Third Party -- Spanos | Practak Attn: Przetak, Laura. 475 14th Street, Suite 550 Oakland, CA 94612. Order