Meyers v. Intel Corporation. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JACOB MEYERS, by his natural )
mother and next friend JANNA )
LYNN MEYERS, and individually, )
)
Plaintiffs, )
) C.A. No. N11C-07-009 JRJ
v. )
)
INTEL CORPORATION, )
)
Defendant. )
ORDER
Date Submitted: April 2, 2015
Date Decided: June 11, 2015
AND NOW TO WIT, this 11th day of June, 2015, upon consideration of
Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical
Examinations of Jacob, Janna, and Robert Meyers; Plaintiffs’ Response to
Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical
Examinations of Jacob, Janna, and Robert Meyers; and Intel Corporation’s Reply
Memorandum in Support of its Supplemental Memorandum to Compel the
Medical Examinations of Jacob, Janna, and Robert, IT APPEARS THAT:
1. On January 21, 2015, Intel filed a Motion to Compel the Medical
Examinations of Jacob, Janna, Robert, and Hayden Meyers. 1 The Court ordered
supplemental briefing on Intel’s Motion to Compel Plaintiff Janna Meyers and
Robert Meyers, Jacob’s parents, to submit to a “state-of-the-art” 2 genetic test
called “Trio Whole Exome Sequencing” because of the novelty and complexity of
the issues involved.
2. By way of background, Plaintiffs allege Jacob’s birth defects are the
proximate result of “exposures to hazardous, genotoxic, and reproductively toxic
substances, pollutants or contaminants” through his parents Janna and Robert
Meyers’ work at Intel. 3
3. Intel seeks an order compelling Jacob’s mother, Plaintiff Janna, and
Jacob’s father, Robert Meyers, a non-party to this lawsuit, to submit to a blood
draw and “Trio Whole Exome Sequencing.” Intel argues that there is at least a
35% probability that Trio Whole Exome Sequencing of Jacob, Janna, and Robert
will reveal that the genetic structure Jacob inherited from his parents caused his
1
Defendant Intel Corporation’s Motion to Compel the Medical Examinations of Jacob, Janna,
Robert and Hayden Meyers (Trans. ID. 56641885). Intel has withdrawn its request for genetic
testing of Hayden Meyers, Jacob’s sibling, and a non-party to this lawsuit. Defendant Intel
Corporation’s February 3, 2015 Letter Regarding Additional Information About Medical Exams
(Trans. ID. 56708081). The motion to compel the medical examination of Plaintiff Jacob has
been resolved. (Trans. ID. 56729500).
2
Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical
Examinations of Jacob, Janna, and Robert Meyers at 2 (“Def.’s Supplemental Memo.”) (Trans.
ID. 56841863).
3
Compl. ¶ 26 (Trans. ID. 38474699).
2
birth defects—not the alleged chemical exposures at Intel.4 According to Intel,
Trio Whole Exome Sequencing is used in cases where doctors believe there may
be a genetic explanation for a medical condition, but all of the particular genetic
variations that cause the condition have not yet been identified. 5
4. Through this genetic test, the genetic sequencing of a child’s exome is
compared to the exome of the child’s biological parents.6 According to Intel, the
DNA of Jacob and both parents must be sequenced at the same time in order to
“have the best chance of determining whether there is an identifiable genetic cause
of [Jacob’s] health conditions.”7
5. Plaintiffs do not dispute Intel is entitled to genetic testing of Plaintiff
Jacob, but argue that Jacob’s parents should not be subject to Trio Whole Exome
Sequencing because it is a highly invasive process, Janna is only a party to this
litigation by virtue of her involvement as guardian ad litem for Jacob, and Robert
is not a party to this litigation. 8 Plaintiffs further argue that because Robert is not
subject to this Court’s jurisdiction, this Court lacks the power to compel Robert to
submit to the genetic testing. 9
4
Def.’s Supplemental Memo. at 1–2.
5
Id. at 3.
6
Id.
7
Id.
8
Plaintiffs’ Response to Defendant Intel Corporation’s Supplemental Memorandum to Compel
the Medical Examinations of Jacob, Janna and Robert Meyers at 2–3 (“Pls.’ Resp. Supplemental
Memo.”) (Trans. ID. 56919357).
9
Id.
3
6. According to Intel, this Court has jurisdiction to order Janna and Robert
to submit to blood draws and genetic testing because Janna is a party and Robert
affirmatively invoked this Court’s jurisdiction.10
7. Before this lawsuit was filed, both Janna and Robert requested chemical
exposure records from Intel pursuant to the Occupational Safety and Health Act
(“OSHA”), a federal statute which generally requires employers to provide
chemical exposure information to current and former employees upon request.11
Intel argues that because the Court ordered Intel to produce OSHA documents
(relating to chemicals Jacob’s parents were exposed to) in this litigation and Intel
“produced a broad collection of records,” Robert has somehow submitted to this
Court’s jurisdiction.12 The Court disagrees. Robert is not a party to this litigation
and has not taken an “affirmative act” in this case. 13
8. Even assuming arguendo this Court has jurisdiction over Robert, he is
not a party to the litigation. Superior Court Civil Rule 35(a) provides that, “[w]hen
the mental or physical condition (including the blood group) of a party or of a
10
Def.’s Supplemental Memo. at 7–10.
11
29 C.F.R. 1910.1020; Pls.’ Resp. Supplemental Memo. at 3–4. The existence of those pre-suit
OSHA requests emerged in this litigation in the context of discovery dispute. Def.’s
Supplemental Memo. at 8–10; Pls.’ Resp. Supplemental Memo at 4–6.
12
Intel Corporation’s Reply Memorandum in Support of its Supplemental Memorandum to
Compel the Medical Examinations of Jacob, Janna, and Robert at 4–5 (Trans. ID. 56939441).
13
In S.E.C. v. Ross, the Ninth Circuit Court of Appeals provided several examples of an
“affirmative act” invoking the court’s personal jurisdiction. 504 F.3d 1130 (9th Cir. 2007). In
that case, the Ninth Circuit explained, “we have held that a party has consented to personal
jurisdiction when the party took some kind of affirmative act—accepting a forum selection
clause, submitting a claim, filing an action—that fairly invited the court to resolve the dispute
between the parties.” Id. at 1149.
4
person in the custody or under the legal control of a party, is in controversy, the
Court in which the action is pending may order the party to submit to a physical or
mental examination . . . .” 14 It is clear that Rule 35(a) limits the class of persons
subject to a compelled examination to a party or a person in the custody or under
the legal control of a party. Because Robert is not a party to this lawsuit, this
Court has no authority to compel Robert to submit to genetic testing.
9. Nevertheless, Intel argues that “independent of a rule or statute, a court
has the inherent authority to fashion whatever remedy is reasonably necessary to
ensure fair process and the quest for truth.” 15 The Supreme Court of the United
States has recognized that blood draws are “an invasion of bodily integrity
implicat[ing] an individual’s most personal and deep-rooted expectations of
privacy.” 16 Intel is unable to cite to any case law supporting this “inherent power”
in the context of compelling a non-party, who never put his physical condition at
issue, and over whom the Court has no jurisdiction, to submit to a highly invasive
blood draw and genetic testing. 17
14
Super. Ct. Civ. R. 35(a) (emphasis added).
15
Intel Corporation’s Reply Memorandum in Support of its Supplemental Memorandum to
Compel the Medical Examinations of Jacob, Janna, and Robert at 6 (Trans. ID. 56939441).
16
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (internal quotations omitted).
17
The cases Intel relies on are distinguishable because those cases involve compelling an
individual to submit to a medical examination when that individual’s physical or mental
condition was directly at issue and the court had jurisdiction over the individual. See e.g., Lewin
v. Jackson, 492 P.2d 406 (Ariz. 1972) (holding court “had inherent power, apart from discovery
rule, to order examination to determine person’s physical and mental competency to testify at
deposition . . . .”); Matter of Estate of Rogers, 583 A.2d 782 (N.J. Super. Ct. App. Div. 1990)
5
10. In contrast to “standard” genetic tests that analyze one gene or small
groups of related genes at a time, Trio Whole Exome Sequencing is an
examination of one’s entire exome. 18 As noted above, according to Intel, there is
“at least a 35% probability” that Trio Whole Exome Sequencing will identify a
genetic cause for Jacob’s birth defects. 19 Given this low probability of success, the
significant privacy concerns relating to blood draws and genetic testing, the fact
that Robert is not a party, and the fact that this Court has no jurisdiction over
Robert, the Court finds no basis to compel Robert to submit to genetic testing.
11. Intel stated that unless both biological parents are ordered to submit to
Trio Whole Exome Sequencing, it will not move forward with the genetic testing.
Therefore, Intel’s motion to compel with respect to Janna Meyers is likewise
denied.
NOW THEREFORE, Defendant Intel Corporation’s Motion to Compel the
Medical Examinations of Janna Meyers and Robert Meyers is DENIED.
IT IS SO ORDERED.
Jan R. Jurden, President Judge
(paternity testing relating to an intestate estate); State ex rel. St. Louis Pub. Serv. Co. v.
McMullan, 297 S.W.2d 431, 436 (Mo. 1956) (physical examination of the plaintiff’s wife
because the wife was the injured party in a loss for consortium claim).
18
Pls.’ Resp. Supplemental Memo. at n.2.
19
Def.’s Supplemental Memo. at 1–2, 7.
6