Estate OF Patrick v. Bd. of Supervisors (2002)

Our plain-English summary of Estate OF Patrick v. Bd. of Supervisors (Louisiana Supreme Court, November 22, 2002).

The estate of Dr. Andrew Patrick sued the Board of Supervisors of Louisiana State University. The opinion is a short writ order and does not describe the underlying claim, Dr. Patrick's work, or any asbestos exposure. The dispute was over discovery. The Board, as relator, wanted to run further tests on tissue taken from Dr. Patrick before his death. The Board's interest was a possible link between the SV40 virus and mesothelioma. The lower courts denied the request by applying the standard for an independent medical examination. The Supreme Court held that this was wrong. It reasoned that examining tissue preserved for more than eight years is no different from examining any inanimate substance in discovery. It is not like an intrusive procedure on a living person or an autopsy. The "good cause shown" requirement of art. 1464 therefore did not apply. The Court declined to consider whether the Board had raised the SV40 issue in a timely way. It vacated the denials and sent the case back for the trial court to decide whether the link was discovered only after the earlier testing, and whether any delay was excusable. Two justices would have denied the application.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Louisiana Supreme Court
• Decided: November 22, 2002
• Citation: 836 So.2d 1
• Docket: No. 2002-CC-2570
• Stage: Appeal from discovery or evidence ruling
• State: Louisiana

Outcome. The Louisiana Supreme Court granted the Board of Supervisors of LSU's writ, vacated the lower courts' denial of its motion for further testing of Dr. Patrick's preserved tissue, and remanded to the trial court.

What the court held. Testing of tissue preserved for more than eight years is treated like examination of any inanimate object in discovery, not like an independent medical examination of a living person or an autopsy. The heightened "good cause shown" standard of art. 1464 therefore does not apply.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Dr. Andrew Patrick: mesothelioma; died

The defendants

• The Board of Supervisors of Louisiana State University

Later decisions citing this one

One later decision in our library cites this one:

• Coleman v. Anco Insulations, Inc. (U.S. District Court, Middle District of Louisiana, 2017). The magistrate judge granted the unopposed motion by defendant Pilkington North America to run destructive fiber burden testing on up to 50% of the decedent's pathology materials, against the plaintiffs.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

836 So.2d 1 (2002)

ESTATE OF Andrew PATRICK, M.D., etal.

v.

The BOARD OF SUPERVISORS of LOUISIANA STATE UNIVERSITY.

No. 2002-CC-2570.

November 22, 2002.

Supreme Court of Louisiana.

GRANTED.

Relator failed to raise, in a timely and proper manner, the issue of a link between the SV40 virus and mesothelioma being discovered after its previous testing [*2] of the tissues taken from Dr. Patrick prior to his death. Consequently, this court cannot consider that issue.

However, the lower courts erred in utilizing the test for allowing an independent medical examination (IME) to determine whether to allow further testing of the tissue. One cannot analogize testing of the tissue in this case with an IME of a living person or with the performance of an autopsy, {see In re Certain Asbestos Cases, 112 F.R.D. 427, 433 (N.D.Tex. 1986)}, both of which are intrusive procedures performed on the human body. Examination of tissue preserved more than eight years ago does not differ from examination of any inanimate substance for the purpose of discovery. Therefore, the heightened test, "for good cause shown," of LSA-C.C.P. art. 1464 does not apply.

The rulings of the lower courts denying Relator's motion are vacated. We remand this matter to the trial court to determine whether the SV40 virus and mesothelioma link was, in fact, not discovered until after Relator's previous testing of the tissue and, if the link had been discovered at the time of the previous testing, whether Relator's delay was excusable. If this fact is established, the trial court shall allow Relator to perform another examination.

KIMBALL and KNOLL., JJ., would deny the application.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites