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Defendant’s Attempt to Obtain Tissue Sample for Digestion Testing Denied

Court: Supreme Court of New York, New York County

In this asbestos action, plaintiff Almando Rodney underwent a pleurectomy. Defendant Mercedez-Benz USA LLC (MBUSA) moved to seek an out-of-state subpoena in order to retrieve a portion of Rodney’s tissue sample from a Florida hospital. MBUSA also moved to permit its expert to perform digestion studies on the tissue block.

The plaintiff opposed on two grounds. Plaintiff noted that the Note of Issue had been filed. In addition, the plaintiff submitted an affidavit from Rodney’s treating oncologist, who set forth that the amount of tissue needed for further treatment was currently unknown. Further, replacing the tissue by way of future surgery would be harmful and invasive.

Ultimately, the court denied MBUSA’s motion. First, the request did not meet the post-Note of Issue discovery standard of “unusual or unanticipated circumstances” given that MBUSA was aware of Rodney’s pleurectomy since August 2021. Second, the court set forth that “defendant MBUSA’s interest in the tissue sample does not outweigh Mr. Rodney’s health interests herein.” The court cited for the proposition that “a showing of the [medical] importance and safety of the particular procedure is required, as well as an explanation of the relevance and the need for the information that a procedure will yield.”

The court found that MBUSA’s expert’s affidavit does not set forth certainty as to the accuracy of digestion testing and how much tissue will be needed for the testing. The expert also did not explain the need for the tissue when he already reviewed slides and a pathology report. Further, “Rodney’s testimony, medical records, and other discovery previously exchanged suffices MBUSA to formulate their defense as to the extent of Mr. Rodney’s exposure to their products and the likelihood of asbestos exposure therein.” Finally, MBUSA’s contention that tissue testing would not be harmful or invasive conflicted with the plaintiff’s expert’s assertion. Thus, the court denied MBUSA’s motion.

Read the full decision here.