Alameda County Awaits Key Decision Regarding The Use of Genetic Testing in Asbestos Cases

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Alameda County Superior Court Judge Jo-Lynne Q. Lee set a hearing on nationally recognized plaintiff’s firm Maune Raichle French Hartley & Mudd. LLC’s motion for protective order in a pending asbestos case in which the defendants’ experts wanted to perform genetic testing. The case is John Lohmann and Suzanne Lohmann v. Aaon, Inc., et al. Alameda County Superior Court Case No. RG21098862. In this case, the plaintiffs filed their action in May 2021 in Alameda County against several defendants alleging that Mr. Lohmann contracted mesothelioma occupationally during his career as a refrigeration equipment mechanic beginning in the early 1970s largely in California.

After appearing in the action, the defendants retained pathology experts who wanted to use Mr. Lohmann’s medical data for non-litigation purposes without Mr. Lohmann’s permission, because the experts believed that the information would advance science. To conduct this testing, counsel for designated defense counsel moved for discovery of Mr. Lohmann’s original cytology/pathology slides and paraffin blocks and subpoenaed his health care providers. The court ordered production of those original materials. According to the plaintiffs’ counsel, production of Mr. Lohmann’s pathology and genetic material during litigation does not thereby permit outside, personal research and analysis. Multiple defendants disagreed, however, and contend that evidence produced during litigation enters the public domain and is thereafter not protected by discovery law.

As a result, on January 7, 2022 the plaintiffs filed for a protective order under California Code of Civil Procedure §2025.420, arguing that they never discussed with defense counsel the terms by which Mr. Lohmann’s pathology material was to be used. The plaintiffs asked Alameda County Superior Court to block defendants from compiling medical data for the benefit of a third party’s medical database or research project. Defendants, in their written opposition and during oral argument, contend that there is no authority barring medical research on data derived during litigation. Defendants also contend that the plaintiffs are incorrectly relying on California’s discovery statutes, which only govern how the evidence is obtained, not how it can be used. Defendants also argue that research evidence derived from litigation is relevant not only for diagnosis, treatment, and cause, but also helps determine the plaintiff’s damages. For example, the defendants cite to scientific research showing that patients with the BAP-1 mesothelioma marker respond better to treatment and tend to have longer life expectancies than those patients without this marker. Defendants wish to present this evidence to the jury as they decide Mr. Lohmann’s claim for future medical costs and damages for shortened life expectancy.

Up until last year, defendants and the plaintiffs in Alameda County operated under an informal discovery agreement regarding a plaintiff’s pathology materials. However, with more and more defense experts looking to see if a plaintiff, like Mr. Lohmann, had the BAP-1 mesothelioma marker, the Maune firm revoked this informal agreement citing privacy and concerns over genetic testing of their clients’ materials. Their concerns were largely centered on the actions of longtime defense pathology expert, Dr. Victor Roggli, who published an article in 2020 describing an individual previously represented by the Maune firm.[1] According to the Maune firm, Dr. Roggli’s use of their client’s medical data in his non-litigation research was improper. In regard to the testing for BAP-1 in particular, the plaintiffs in Lohmann are attempting to block it arguing that it has “questionable value” in a mesothelioma case. The plaintiffs imply in their motion that the defendants are hoping to use published research linking BAP-1 mutations and certain asbestos exposures in litigation.

It is now up to Alameda County Superior Court to decide whether these defendants and the Dr. Rogglis of the world can, legally under the Discovery Act, use a plaintiff’s medical data for their own non-litigation purposes without first obtaining the plaintiff’s permission. The Court has requested additional briefing from the parties on this subject before it will make this determination. Defendants are urging the Court to retain an independent expert to examine this issue.

For the Lohmann case, the hearing on the plaintiffs’ protective order did not go forward after the Defendants stipulated that none of their experts intended to use any of Mr. Lohmann’s medical information outside of litigation.

So, for now at least, this issue has been tabled until the next case. But, if and when Alameda County does make a ruling on this issue, its decision will have a significant impact on genetic defenses for mesothelioma cases in California and, likely, elsewhere in the nation as well. The court’s eventual opinion will decide whether asbestos defendants can use a plaintiff’s medical data in third-party research that could potentially help gather information useful to defendants’ defenses to damages claims in future asbestos cases.

[1] Mujahed T, Tazelaar HD, Sukov WR, Halling KC, Davila JI, Glass C, Pavlisko EN, Strickland KC, Roggli V, Haque M, Mneimneh W, Carter E, Galateau-Salle F, Glidden D, Garcia-Kennedy R, Larsen BT. Malignant Peritoneal Mesothelioma Arising in Young Adults With Long-standing Indwelling Intra-abdominal Shunt Catheters. Am J Surg Pathol. 2021 Feb 1;45(2):255-262. doi: 10.1097/PAS.0000000000001574. PMID: 32826527.