Discovery shouldn’t be a one-way avenue.  Most plaintiffs concede that a lot.  However they push exhausting to make defendants journey down a super-highway whereas site visitors from plaintiffs bumps alongside an unpaved nation lane.  The reality is that it’s going to by no means be a fair enjoying discipline in drug and machine litigation, or any company litigation.  Defendants are corporations with a whole lot or 1000’s of workers, thousands and thousands of pages of emails/chats, and in depth digital data networks.  Plaintiffs in the meantime usually possess only a few paperwork associated to their well being and medical remedy.  These are within the possession of the healthcare suppliers.  However it’s in these medical information that defendants typically discover data important to the protection; proof corresponding to different causes or different threat components.  So, discovery of plaintiffs’ medical histories is essential.  A truth lately acknowledged in In re Cpap, 2023 Dist. LEXIS 227871 (W.D. Pa. Nov. 13, 2023). 

Plaintiffs introduced medical monitoring claims alleging an elevated threat of 11 various kinds of cancers and 13 varieties of respiratory situations as a consequence of “publicity to hazardous toxins” from recalled medical units.  Id. at *1.  Defendants served interrogatories and doc requests searching for data and paperwork about plaintiffs’ medical histories and former exposures.  Plaintiffs objected and argued they need to solely have to provide information from physicians who prescribed the medical units at problem and solely going again 5 years.  Id. at *2.  The court docket disagreed with plaintiffs.

Defendants’ discovery requests broke down into 5 classes:  (i) these associated to the recalled units; (ii) these associated to plaintiffs’ normal medical historical past; (iii) these associated to different threat components; (iv) these associated to medical health insurance; and (v) these associated to how the requested medical monitoring differs from commonplace monitoring.  Id. at *3-4.  Plaintiffs’ main argument for why discovery must be restricted to the primary class was that their claims have been primarily based on publicity to defendants’ merchandise solely, not on their medical historical past or preexisting publicity.  However that might require fully overlooking two important components of plaintiffs’ claims.

Along with proving the publicity to a hazardous substance attributable to defendants’ negligence, medical monitoring claims require causation:  “as a proximate results of the publicity, plaintiff has a considerably elevated threat of contracting a critical latent illness.”  Id. at *6.  Plaintiff additionally has to ascertain that the “prescribed monitoring regime is totally different from that usually really useful within the absence of publicity.”  Id. The court docket discovered that it was a matter of “frequent sense” that these components render at the least some discovery of plaintiffs’ medical histories related.  For instance, a medical situation that pre-existed the publicity at problem could be related as to whether the publicity “considerably elevated” the chance of future illness.   Likewise, if a plaintiff’s healthcare supplier beforehand suggested monitoring for one of many medical situations at problem, that might be related as to whether that monitoring is duplicative of what plaintiff desires defendants to pay for. 

Plaintiffs had no case legislation to help their argument that the court docket ought to permit discovery associated to the “prongs of the legal responsibility take a look at that concentrate on defendant’s conduct, and ignore the others, together with the causation component.”  Id. at *8.  That will be a one-way avenue.  The opinion summarizes a number of key circumstances demonstrating simply the other; that some discovery of plaintiffs’ medical histories is acceptable.  Id. at *9-13. 

Whereas plaintiffs misplaced on their core place that the one related medical discovery was associated to their claimed publicity to the recalled units, the court docket didn’t grant defendants’ movement to compel in its entirety favoring a tiered method to medical discovery to guard delicate data.  The court docket ordered that plaintiffs reply interrogatories about their medical histories usually and produce medical information associated to any remedy or testing for any of the pleaded cancers or respiratory situations.  Plaintiffs even have to answer interrogatories about their different threat components like tobacco use, household historical past, and occupational dangers.  Id. at *14-16.  For now, defendants’ broader requests for medical information are denied with out prejudice pending plaintiffs’ interrogatory responses.  If the responses reveal doubtlessly related pre-existing situations or monitoring, defendants can problem revised, tailor-made doc requests.   Requests for medical health insurance information have been additionally denied as unlikely so as to add to the data to be supplied within the medical information.  Lastly, the court docket left it to plaintiffs to both present medical authorizations by means of which defendants can request information straight from healthcare suppliers or to acquire the medical information themselves and produce them to defendants.  In different phrases, if plaintiffs need to assume the burden, they’re entitled to the identical proper to assessment information for responsiveness and privilege earlier than producing them.  Id. at *17. 

Defendants didn’t get every little thing they needed, however they at the least bought the court docket to pave the lane in order that getting important discovery shouldn’t be so bumpy a path.