An Alameda County Judge set a hearing on a motion for protective order in a pending asbestos case in which the plaintiffs sought to prevent the defendants of unapproved genetic testing. In the case of John C. Lohmann and Suzanne L. Lohmann vs. Aaon, Inc., et al., the plaintiffs filed suit in Alameda Superior Court against several defendants alleging that Mr. Lohmann developed mesothelioma as a result of his career working in the refrigeration maintenance field from 1970 to 2021 in California. The defense experts sought to use the plaintiff’s medical data for non-litigation purposes without the plaintiffs’ permission because they believed the information will advance science and no pathologist/associated scientist would ethically agree to limitations. As part of the case, defense counsel moved for discovery of Mr. Lohmann’s original pathology material and subpoenaed the providers. The court ordered production of those materials. The plaintiffs contend that production of pathology and genetic material in litigation does not permit outside, personal research and analysis. Multiple defendants, on the other hand, argue that evidence produced in litigation enters the public domain and is not protected by discovery law.

The plaintiffs then moved for a protective order under California Code of Civil Procedure, arguing that the terms of the use of the pathology material was never addressed. Plaintiffs urged the Court to preclude defendants from compiling medical data for the benefit of a third party’s medical database or research project. Defendants argued that there is no authority barring medical research on litigation-derived data, and the plaintiffs’ reliance on discovery statutes was misplaced because the statutes govern how evidence is obtained, not how it is used. Defendants argued that research evidence derived from litigation is relevant not only for diagnosis, treatment, and cause, but also as it relates to damages because research shows that patients with BAP-1 mesothelioma have a better clinical course and longer life expectancy than patients without the marker. This evidence, the defense argued, is relevant to plaintiffs’ claims for future medical costs, and damages for shortened life expectancy.

A longstanding informal agreement governing pathology materials was revoked by the plaintiffs’ attorneys in mid-2021 when privacy and genetic testing concerns arose surrounding testing for BAP-1 gene disorder. A defense expert, Victor Roggli, published an article describing an individual represented by plaintiffs’ counsel, Maune Raichle French Hartley & Mudd LLC. The discovery that Dr. Roggli had used the plaintiff’s medical information in his research confirmed a long held, but until then unproven, suspicion of plaintiffs’ counsel that certain experts were taking advantage of their access to the private medical data of plaintiffs in asbestos litigation by virtue of their paid consultancy work and using that data for personal research. The plaintiffs believe these experts used plaintiff’s medical data to substantiate ‘scientific’ theories that mesothelioma is not caused by exposure to asbestos in products made by the companies who hire those experts in litigation.

Regarding the BAP-1 testing that plaintiffs seek to preclude; the plaintiffs argue that BAP-1 is of “questionable value” in a mesothelioma setting and the only individuals who find it useful for diagnosis are “paid litigation experts” who perform “scientific research.” The plaintiffs believe defendants wish to use published research linking BAP-1 mutations and certain asbestos exposures in the litigation. The question before the court was whether defendants and their experts can, legally, use plaintiffs’ medical data for their own non-litigation purposes without a plaintiff’s permission. The Court ordered supplemental briefing on the subject. Plaintiffs position is that any production made pursuant to the Civil Discovery Act is made without waiving any right to privacy outside the courtroom. Defendants argued that plaintiffs take an improperly narrow view of the dispute, that is, medical information in court filings is not in the public domain until admitted into evidence in the courtroom. Defendants urged the court to retain an independent expert to help wade through the tissue specimen procurement research issues in this case. The hearing on Plaintiffs’ protective order did not go forward as the Defendants’ essentially agreed that none of their experts planned to use any of the Plaintiff’s information as part of any research efforts. For now, the court has booted the issue down the road, where it is expected to be raised again in a future case.

The ultimate resolution of this issue will have a lasting impact on genetic defenses in asbestos mesothelioma cases in California and potentially across the country since it is an unprecedented area of litigation. The resolution will dictate whether defendants can use genetic information in third-party research, which may help gather information that may be useful to defendants’ defenses in asbestos litigation in the future. Defendants in asbestos litigation who wish to perform genetic testing may experience significant pushback from plaintiffs in obtaining the material to test. If plaintiffs’ arguments are correct, then privacy still protects a plaintiff’s medical information after filing suit, and plaintiffs can use this privacy to deny defendants access to relevant medical evidence while advancing their case to trial.