MENOR, et al. vs CHANEL, INC., et al.

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion to Compel Physical Examination; filed by MERCK & CO., INC., sued individually, as alter-ego of, and as successor-in-interest to SCHOLL, INC. and SCHERING-PLOUGH CORPORATION (Defendant) CRS# 411401056524 in Department 18

Tentative Ruling - 08/21/2026 Patrick McKinney

The Motion to Compel Defendant Merck & Co., Inc.'s Notice of Motion and Motion to Compel Genetic and Genomic Testing filed by MERCK & CO., INC., sued individually, as alter-ego of, and as successor-in-interest to SCHOLL, INC. and SCHERING-PLOUGH CORPORATION on 07/24/2026 is Denied.

Former Defendant Merck & Co.’s (“Defendant”) Motion to Compel Genetic and Genomic Testing (the “Motion to Compel”), in which several other defendants timely join, is DENIED. The Motion to Compel is both procedurally and substantively defective.

The Notice of Motion cites to CCP § 2032.310 et seq. as the basis for the Motion. § 2032.310 provides:

“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.

“(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

The Court finds that a motion to compel samples for genetic testing is at its core a type of medical or physical examination other than the more common type of doctor’s physical examination described in § 2032.210 et seq. Therefore, § 2032.310 applies. (See Weil & Brown, Cal. Civ. Proc. Before Trial at § 1.556.10; see also CCP § 2032.220(a)(1) allowing diagnostic tests that are not “painful, protracted or intrusive.”)

§ 2032.310 does not require that a Demand for Physical Examination be served before a party may bring a motion seeking leave to conduct the examination. However, § 2032.310(b) expressly requires that the same information required of a Demand for Physical Inspection pursuant to § 2032.220(c) must be set forth in the Notice of Motion seeking leave to conduct a § 2032.310 examination. Defendant’s Notice contains none of this mandatory information. Further, the [Proposed Order] submitted with the moving papers lacks any specificity of the genetic or genomic testing the Court would be ordering to be performed.

Instead, the moving MPA at p. 26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion to Compel Physical Examination; filed by MERCK & CO., INC., sued individually, as alter-ego of, and as successor-in-interest to SCHOLL, INC. and SCHERING-PLOUGH CORPORATION (Defendant) CRS# 411401056524 in Department 18 6:13-16 indicates that Defendant is apparently seeking to leave to conduct “long-read whole genome sequencing of forty-eight (48) genes,” which Defendant appears to contend can only be performed using a blood sample and not a saliva sample.

Defendant apparently also seeks leave to conduct the same 48 gene testing of plaintiff Jovy Menor’s (“Mrs. Menor”) pathology samples.

Therefore, the Motion must be DENIED as procedurally defective.

Additionally, even if the Motion were not procedurally defective, the Motion would be denied as substantively defective because Defendant fails to make a showing sufficient to overcome Mrs. Menor’s privacy rights in her genetic information or to establish that the requested discovery is reasonably calculated to lead to the discovery of admissible evidence.

“[A] civil litigant’s right to discovery is broad.” (Yelp Inc. v. Superior Court (2017) 17 Cal. App. 5th 1, 15.) “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[S]tatutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.’” (Yelp, Inc., 17 Cal. App. 5th at 15 [internal citations omitted].) “This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.’” (Id.)

“[A] person has a privacy interest in his or her own DNA profile and genetic information.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 381.) This is a “strong privacy interest,” but it “is not absolute and can be abridged for a compelling opposing interest where laws are in place to limit use of the DNA to a specific purpose intended to satisfy that interest.” (Ibid.)

“[C]ourts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 842; SCC Acquisitions, Inc. v. Sup.Ct. (2015) 243 Cal.App.4th 741, 754.) The specific medical information sought must be “directly relevant to her claim and essential to a fair resolution of” the action. (Vinson, supra.)

Defendant presents the expert witness declaration of Dr. Scott Tomlins, M.D., Ph.D., who is not a geneticist. Dr. Tomlins cites to approximately ninety-nine (99) published peer reviewed medical journal articles in his declaration, none of which have been attached to his declaration, to establish that he has an adequate foundation for the claims he makes in his declaration. It is not the responsibility of the Court to track down and review 99 medical journal articles to determine whether they contain any information to support a declarant’s claims. Instead, it is the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion to Compel Physical Examination; filed by MERCK & CO., INC., sued individually, as alter-ego of, and as successor-in-interest to SCHOLL, INC. and SCHERING-PLOUGH CORPORATION (Defendant) CRS# 411401056524 in Department 18 moving parties’ obligation to present evidence to support a finding of adequate foundation for an expert witness’ opinions. For example, ¶ 9 of the Tomlins Declaration contains a chart of seven factors, which Dr.

Tomlins asserts are signs that a patient’s mesothelioma is genetically caused rather than caused by exposures by asbestos. However, there is no way for the Court to confirm that any of the medical journal articles Dr. Tomlins cites actually support these claims, and Plaintiffs in Opposition contend that none of the medical journal articles support the conclusion that any of these factors support a finding that Mrs. Menor could have genetically caused mesothelioma independent of asbestos exposures.

Further, Plaintiffs present the deposition testimony of Mrs. Menor’s treating oncologist, who opines that her peritoneal mesothelioma is metastatic from her initially developed pleural mesothelioma. (Clancy Dec. Exh.

11. The Court has not considered the declaration Mrs. Menor’s treating thoracic surgeon Leah Backhus, M.D., because the copy in the record is unsigned at Id. Exh. 12.) The Court gives greater weight to Mrs. Menor’s treating oncologist’s opinions regarding the relationship or lack thereof of Mrs. Menor’s pleural and peritoneal mesothelioma than Dr. Tomlins’ opinions thereon.

Further, there is no foundation in the form of published peer-reviewed medical journal articles in the record to support Dr. Tomlins’ apparent expert opinion that it would be appropriate to allow Defendant to conduct genetic or genomic testing for any germline mutations in forty-eight (48) of Mrs. Menor’s genes. The record contains no peer reviewed medical journal articles tending to show that there is any specific gene mutations or groups of gene mutations that can be an independent cause of malignant mesothelioma exclusive of asbestos exposures.

This Court in the past has allowed genetic testing only for germline mutations to the BAP-1 gene, based on evidence presented by past moving defendants in the form of published peer-reviewed medical journal articles in the moving record tending to show that germline BAP-1 mutations are connected to a “BAP-1 cancer predisposition syndrome” pursuant to which family members with certain germline BAP-1 mutations develop extremely rare cancers, including malignant mesothelioma, at rates that would otherwise be statistically impossible or nearly impossible but for the germline BAP-1 mutations and the related cancer pre-disposition syndrome.

Here, the Tomlins Declaration does not attach medical journal articles supporting a finding that germline BAP-1 or other specific gene mutations could be an independent cause of malignant mesothelioma.

Nevertheless, Defendant seeks to conduct broad genetic testing of 48 genes, rather than testing merely designed to discovery specifically identified BAP-1 mutations. If genetic mutations merely make a person more susceptible to developing mesothelioma from asbestos exposures, then such mutations would be a classic “eggshell” skull situation where defendants must take the plaintiff as they find them.

In fact, Plaintiffs present evidence that Mrs. Menor at the recommendation of her treating physicians provided a blood sample for forty-eight (48) gene genetic testing by a company called Ambry Genetics to determine whether she had any germline genetic mutations that made her

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion to Compel Physical Examination; filed by MERCK & CO., INC., sued individually, as alter-ego of, and as successor-in-interest to SCHOLL, INC. and SCHERING-PLOUGH CORPORATION (Defendant) CRS# 411401056524 in Department 18 more susceptible to developing malignant mesothelioma, whether independently or from asbestos exposures, in order to assist her physicians’ deciding upon treatment options. Plaintiffs present evidence that Mrs.

Menor’s treating Certified Genetic Counsel opined based on the results received from Ambry Genetics that Mrs. Menor had no germline genetic mutations of significance to her mesothelioma. (Clancy Dec. Exhs. 13-14.) Dr. Tomlins declares that Ambry Genetics’ testing constituted “short-read” genetic testing and opines that “long-read” testing of the same 48 genes could yet show that Mrs. Menor has relevant germline genetic mutations. (Tomlins Dec. ¶ 10.) However, Dr. Tomlins provides no estimate as to how likely it is that the “short-read” testing would have failed to find a germline BAP-1 mutation, and Plaintiffs present a declaration served on 6/12/2026 in another asbestos torts action in which Dr.

Tomlins appears to declare that Ambry Genetics is a reputable provider of genetic testing for hereditary cancer syndromes. (Clancy Dec. Exh. 7.)

In sum, Defendant has not made an evidentiary showing sufficient to overcome Plaintiff’s strong privacy interest in her genetic information, particularly with respect to the broad genetic testing Defendant apparently seeks.

Wherefore, Defendant’s Motion to Compel is DENIED.

The Court SUSTAINS Plaintiffs’ Opposition Objections on the grounds that the claims made by Dr. Tomlins lack sufficient foundation in the record.

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