2018 WL 2573097

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United States District Court, N.D. California.

Joseph THRASH, et al., Plaintiffs,

v.
The BOEING COMPANY, et al., Defendants.

Case No. 17-cv-01501-JST (EDL)

|
Signed 03/02/2018

Attorneys and Law Firms

Benno Behnam Ashrafi, Carlos Jorge Enrique Guzman, Michael Thomas Reid, Josiah Parker, Tyler Robert Stock, Weitz &
Luxenburg, P.C., Los Angeles, CA, Adam Cooper, Weitz & Luxenberg P.C., New York, NY, Robert Allen Green, Weitz &
Luxenberg, P.C., Century City, CA, for Plaintiffs.

Dustin Clark Beckley, Brent Marshall Karren, Manning Gross & Massenburg LLP, Howard Phillip Skebe, Manion Gaynor &
Manning LLP, Brian Thomas Clark, Guy P. Glazier, Laura Patricia Yee, Glazier Yee LLP, Ferlin Peregrino Ruiz, Lance
Douglas Wilson, Tucker Ellis LLP, Bo W. Kim, David T. Biderman, Perkins Coie LLP, San Francisco, CA, Brian D. Gross,
Manion Gaynor Manning LLP, Providence, RI, Freddy Israel Fonseca, Manion Gaynor & Manning LLP, Deborah Maria
Parker, Glazier Yee LLP, Bobbie Rae Bailey, Frederick W. Gatt, Ketul Dilip Patel, Leader & Berkon LLP, Los Angeles, CA,
Jeanette Riggins, Manion Gaynor Manning LLP, Hattiesburg, MS, Scott Allen Kossoudji, Glazier Yee LLP, Cypress, TX,
Judith Ann Perritano, Pierce Davis Perritano LLP, Boston, MA, Knight S. Anderson, Tucker Ellis LLP, Cleveland, OH,
Jessica Jean Thomas, Alice Truong Wong, Jonathan Yang, McDermott Will & Emery LLP, Menlo Park, CA, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL A BLOOD SAMPLE FROM PLAINTIFF JOSEPH
THRASH

Re: Dkt. Nos. 108, 119

ELIZABETH D. LAPORTE, United States Magistrate Judge

*1 Pending before the Court is a discovery letter filed by Defendants the Boeing, Company, Lockheed Martin, and United
Technologies Corporation (“Defendants”) requesting an order compelling a sample of Plaintiff Joseph Thrash’s blood.
Defendants’ need to test Thrash’s blood outweighs Thrash’s privacy interests. The Court GRANTS Defendants’ motion.

I. BACKGROUND
On February 17, 2017, Plaintiffs Joseph Thrash and his wife Chez Thrash1 filed a complaint in Alameda County Superior
Court against Lockheed Martin Corp., and several other companies (collectively Defendants) for negligence, breach of
express and implied warranties, strict liability, premises owner/contractor liability, and loss of consortium. Plaintiffs allege
that Thrash was exposed to asbestos on the various defendants’ premises. In September 2016, he was diagnosed with
mesothelioma. Plaintiffs allege that Defendants exposed Thrash to asbestos and that that exposure caused his mesothelioma.
Plaintiffs seek damages including loss of income, earning capacity, and earning potential. Dkt. 1-A, Comp. at 27.
II. CURRENT DISPUTE
On February 12, 2018, Defendants’ expert, Dr. Allan Feingold, submitted a supplemental report that raised the possibility that
Thrash’s mesothelioma was caused by an inherited genetic mutation, referred to as a germline BAP1 mutation, that would
make it a certainty or near certainty that he would have developed cancer “regardless of any environmental factors,”
presumably including exposure to asbestos. Def. at 1, citing Ex. A, Feingold Rep., at 4-5. Dr. Feingold’s final diagnosis in
this case was that Thrash suffers from malignant epithelioid peritoneal mesothelioma. Def. at 1, citing Ex. A, Feingold Rep.
at 12. “Peritoneal mesothelioma is much less common than pleural mesothelioma, but in patients who have a germline BAP1
mutation the ratio of pleural to peritoneal mesothelioma is approximately 1:1.” Feingold Rep. at 6.

Dr. Feingold advised the parties to consider whether Thrash has the inherited germline BAP1 mutation because Thrash
“does not have a history of occupational exposure to commercial amphibole asbestos.” Feingold Rep. at 12. According to Dr.
Feingold, any exposure to asbestos Thrash experienced would have been limited to chryostile asbestos, which, in the low
doses present in the encapsulated products Thrash was exposed to, cannot result in the development of peritoneal malignant
mesothelioma. Feingold Rep. at 7. Dr. Feingold performed a BAP1 immunohistochmical stain on slides from Thrash’s
peritoneal biopsy. Feingold Rep. at 6. They did not demonstrate BAP1 nuclear staining. Feingold Rep. at 12. Counter-
intuitively, the detection of a positive staining for BAP1 protein means that a patient does not have a BAP1 protein. Feingold
Rep. at 6. Rather, “mesothelioma cells in individuals who were born with a germline BAP1 mutation will always fail to stain
for inter-nuclear BAP1 protein.” Feingold Rep. at 6. The test’s usefulness appears to be that the test can help differentiate
between mesothelioma and similar benign and malignant processes in individuals without a germline BAP1 mutation.
Feingold Rep. at 6. Dr. Feingold noted that Thrash has two characteristics that make it less likely that he has inherited a
BAP1 mutation. First, Thrash was 60 years old when the first signs of mesothelioma were discovered, while most people
with a BAP1 mutation will develop cancer before they reach the age of 55. Second Thrash is unaware of any family
members with cancer. Feingold Rep. at 5-6.

*2 Defendants seek a sample of Thrash’s blood in order to determine whether Thrash has a germline BAP1 mutation.
Plaintiffs argue that testing Thrash’s blood and analyzing his DNA would be an undue invasion of his privacy and that, even
if Thrash has that genetic mutation, it would be irrelevant because the mutation means only that a person is more susceptible
to carcinogens, so Defendants would still be liable.

III. GOVERNING LAW

As a preliminary matter, the Court must determine whether to apply federal or state privilege laws. Plaintiffs state that
California’s law should govern but argue that both federal and California law protect the privacy interests at stake.
Defendants cite only federal law in their statement. At the February 16, 2018 hearing for Lockheed Martin’s request for
Thrash’s tax returns, Lockheed Martin stated that federal law applied because the case was removed on the basis of a federal
defense.

“The federal officer removal statute permits a state action to be adjudicated on the merits in a federal court ‘free from local
interests or prejudice.’ ” Kolibash v. Comm. on Legal Ethics of W. Virginia Bar, 872 F.2d 571, 576–77 (4th Cir. 1989)
(quoting Arizona v. Manypenny, 451 U.S. 232, 241-42 (1981) ). The statute allows officers of the United States, and any
persons acting under that officer, to remove from state court a civil action that is directed against the officer “for or relating to
any act under color of such office.” 28 U.S.C. § 1442(a)(1). State law governs actions in cases removed under § 1442(a)(1),
but federal law “supplies the defense.” Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963). State law governs the resolution of §
1442 claims because “a federal court’s role under § 1442 is similar to that of a federal court sitting in diversity.” Hurley v.
CBS Corp., 648 Fed.Appx. 299, 304 (4th Cir. 2016) (applying Maryland law to determine whether the defendants’ injuries
were proximately caused by the defendants in a federal officer removal case) (quoting Kolibash, 872 F.2d at 576); Winters v.
Diamond Shamrock Chem. Co., 941 F. Supp. 617, 620 (E.D. Tex. 1996), aff’d, 149 F.3d 387 (5th Cir. 1998). See also Willis
v. Buffalo Pumps Inc., 34 F. Supp. 3d 1117, 1127 (S.D. Cal. 2014) (applying California law regarding duty to warn defense in
federal officer removal case).

While federal law ordinarily governs a claim of privilege when the case is in federal court, “in a civil case, state law governs
privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501. When a case is in
federal court based on diversity jurisdiction, state law controls questions of privilege. Theme Promotions, Inc. v. News Am.
Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008); Lawson v. GrubHub, Inc., No. 15-CV-05128-JSC, 2017 WL 1684964, at *1
(N.D. Cal. May 3, 2017) (Corley, J.).

Accordingly, California law controls this dispute. Plaintiffs filed their suit in state court, alleging state-law claims. Defendant
Boeing removed the case under 28 U.S.C. § 1442(a)(1). Dkt. 1 at ¶ 6. Defendants’ goal in seeking a sample of Thrash’s
blood is to show that Thrash cannot prove causation, an element of Plaintiffs’ state-law claims. However, the Court would
grant Defendants’ request under either law.

IV. LEGAL STANDARD

Under the Federal Rule of Civil Procedure 35, “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.” Fed. R. Civ. P. 35(a)(1). A plaintiff puts his physical condition in controversy by claiming
injuries resulting from the defendant’s acts. Meyer v. Target Corp., No. C 09-3293 JL, 2010 WL 3080195, at *5 (N.D. Cal.
Aug. 6, 2010). The party seeking the examination must show good cause. Fed R. Civ. P. 35(a)(2)(A).

*3 California has a similar rule. The California Constitution provides a right of privacy, which “protects the individual’s
reasonable expectation of privacy against a serious invasion.” Pioneer Elecs. (USA), Inc. v. Superior Court, 40 Cal. 4th 360,
370 (2007) (emphasis in original). The claimant must possess a “legally protected privacy interest” under established social
norms; the claimant must possess a “reasonable expectation of privacy” under particular circumstances, including customs,
practices, and physical settings surrounding particular activities; and the invasion must be serious and not trivial. Id. (quoting
Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37 (1994) ). If the claimant meets those criteria, the court should
balance the party’s interest against “competing or countervailing interests.” Id.

Similarly, federal “courts ‘recognize a constitutionally-based right of privacy that can be raised in response to a discovery
request.’ ” Frazier v. Bed Bath & Beyond, Inc., No. 11-MC-80270 RS NC, 2011 WL 5854601, at *2 (N.D. Cal. Nov. 21,
2011) (Cousins, J.) (quoting Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) ). “Resolution of a privacy
objection requires courts to balance the need for the information sought against the privacy right asserted.” Id. See also Breed
v. U.S. Dist. Court for N. Dist. of California, 542 F.2d 1114, 1116 (9th Cir. 1976).

V. DISCUSSION
Thrash has asserted a privacy interest. California courts have recognized that an individual “has a privacy interest in his or
her own DNA profile and genetic information, even if only obtained and used for identification purposes.” Cty. of San Diego
v. Mason, 209 Cal. App. 4th 376, 381 (2012). Thrash’s expectation of privacy in his DNA is reasonable. There is no
suggestion that Thrash is participating in any activities other than this lawsuit that would show he consented to the analysis
of his DNA. While the act of drawing Thrash’s blood itself is a relatively minor procedure, the test at issue here would
reveal information about his long-term health and possibly, the health of Thrash’s family members. The requested intrusion
is therefore not trivial.

However, Defendants’ interest in obtaining this discovery outweighs Thrash’s privacy interests. Plaintiffs allege that
Defendants’ acts caused Thrash to develop cancer. Plaintiffs cannot be allowed to make these “very serious allegations
without affording [Defendants] an opportunity to put their truth to the test.” Vinson v. Superior Court, 43 Cal. 3d 833, 842
(1987). Testing a sample of Thrash’s blood would allow Defendants to dispute the cause of Plaintiff’s cancer.

Plaintiffs’ argument that a test showing the presence of BAP1 cannot prove lack of causation as a reason to deny the test is
not persuasive. Plaintiffs argue that any increase in his susceptibility would be irrelevant and inadmissible, because the fact
that a plaintiff is more susceptible to injury does not relieve a tortfeasor from liability if the tortious conduct is still the
proximate cause of the plaintiff’s injury. See Rideau v. Los Angeles Transit Lines, 124 Cal. App. 2d 466, 471, 268 P.2d 772
(1954) (“If, by reason of some preexisting condition, his victim is more susceptible to injury, the tort feasor is not thereby
exonerated from liability.”). Plaintiffs rely on a declaration from Dr. Joseph Testa, the leading researcher on the effects of a
BAP 1 mutation, who is the very doctor on whose research Dr. Feingold relied.2 Green Decl. Ex. 1, Decl. of Joseph Testa, ¶¶
4-14. Dr. Testa stated that BAP 1 syndrome does not cause cancer but, because it reduces a person’s ability to suppress
tumors, it renders a person more susceptible to carcinogens. Testa Decl. ¶¶ 28-29. Plaintiffs also rely on a report from their
expert, Dr. Allan H. Smith, who stated that chrysotile asbestos can cause peritoneal mesothelioma. Green Decl. Ex. 3, Smith
Report at 2-3. In effect, Plaintiffs are asking the Court to determine that their experts are more credible than Defendants’
expert, and to limit discovery based on that determination. The standard for discovery is whether the information is relevant
to a claim or defense, not whether it is ultimately persuasive. Those decisions are inappropriate at this stage. “Weighing the
credibility of conflicting expert witness testimony is the province of the jury.” Wyler Summit P’ship v. Turner Broad. Sys.,
Inc., 235 F.3d 1184, 1192 (9th Cir. 2000). Accordingly, based on the report of Defendants’ expert, Dr. Feingold, the blood
sample would provide information that is highly relevant to the issue of causation. Given the potential significance of this test
result, Defendants have shown a compelling need to test Thrash’s blood for this specific purpose that outweighs Thrash’s
privacy interests. Defendants’ compelling need also constitutes good cause under Federal Rule 35.

VI. CONCLUSION
*4 The Court GRANTS Defendants’ motion for an order to compel a sample of Thrash’s blood for the sole purpose of
testing to determine whether Thrash has BAP 1 syndrome. Within ten days, Thrash will provide approximately three mL of
blood to Invitae Corp., 475 Brannan Street, Suite 230, San Francisco, California 94107. Invitae will send a phlebotomist to
draw the blood and arrange to provide it to the lab. The phlebotomist can be sent to Thrash’s home. Invitae will conduct a
BAP1 Hereditary Cancer Predisposition Syndrome Test on the sample. Defendants may not have Thrash’s blood tested for
anything else.

IT IS SO ORDERED.

All Citations

Slip Copy, 2018 WL 2573097

Footnotes

1 To avoid confusion, the Court refers to Joseph Thrash individually as Thrash and the Joseph Thrash and Chez
Thrash as Plaintiffs.

2 Plaintiffs request that the Court consider Dr. Testa’s declaration, although it was filed in a different case. Because
of the short time for Plaintiffs to respond to Defendants’ discovery request, the Court will consider it.

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.