On August 30, 2023, a Hawaii court ruled on 3M’s motion to compel blood sampling for the purposes of genetic testing in an asbestos matter. Hawaii First Circuit Judge James H. Ashford granted 3M’s motion in the McCabe v. 3M Co., et al matter.

Plaintiff Randolph McCabe filed suit in Hawaii’s First District in October 2022.  McCabe worked as a warehouse employee for Acuron and Associated Insulation Co. from the early-to-mid 1980s. He alleged that although he occasionally wore respirators (including 3M’s 8710 model) he suffered asbestos exposure leading to his development and diagnosis of mesothelioma.  Defendant 3M moved to compel McCabe to undergo blood sample for the purposes of genetic testing.  Notably, McCabe testified he would be willing to undergo genetic testing during his pretrial examination.  Nevertheless, his counsel objected to such testing and insisted on court intervention.

3M proffered a number of arguments in its Motion to Compel. Firstly, it argued the court had the authority to order a blood sample and genetic test and that said authority “rests in the sound discretion of the trial court” and is “to be exercised in the furtherance of justice.” It contended, “Observers predict that ‘genetic testing of plaintiffs will likely become routine at least in mass tort product liability litigation within a decade.’”[1] Secondly, 3M also pointed to how logistically simple the testing would be and argued it would not overly burden McCabe. It reasoned that as a cancer patient, McCabe routinely provided blood samples in connection with his treatment. Providing another small in a doctor’s office or at his residence would not be overly taxing.  Finally, 3M asserted good cause existed for a blood sample and genetic test. It maintained that asbestos exposure is not the cause of all mesothelioma as genetic mutations have also proved to be a source. 3M proffered that a blood test revealing the truth cause of McCabe’s disease could shed light on his life expectancy and prognosis. 

In support if its motion, 3M pointed to recent public impact research conducted at the University of Hawaii which “demonstrated that germline (inherited) mutation of the BRCA associated protein 1 (BAP1), an enzyme coded by a particular gene, can cause a syndrome associated with a very high incident of certain cancers, including mesothelioma.” According to 3M, McCabe’s lung biopsy showed he experienced a complete loss or absence of the BAP1 enzyme. Moreover, it claimed this absence was a “telltale sign of a germline mutation” and that a simple blood test could confirm or deny said mutation.

In response, McCabe’s counsel contended 3M’s claim of a “telltale sign” of a mutation was erroneous. Instead, it cited to literature that showed only 48 percent of cases demonstrate a loss of the BAP1 protein. Further, it also opposed 3M’s motion as untimely, since it filed on August 3 after receiving the biopsy results back in April 2023. McCabe contended, “If having a BAP1 genetic mutation were really crucial, [3M] should have filed this motion in April.” Further controversy exists in that McCabe states 3M misconstrued his deposition testimony. He asserts he did not consent to genetic testing and instead would only be interested in it if it would impact or improve his treatment. As such, he would only pursue genetic testing at the recommendation of his treating physicians. He maintains whether to undergo genetic testing should exist as a decision between himself and his providers, not 3M or the court.

Following a hearing on August 23, 2023, the court granted 3M’s motion on August 30, 2023. As the case heads to trial on October 30, 2023, exactly how this decision will affect defendants including 3M remains to be seen. Nevertheless, the Asbestos Case Tracker will keep careful tabs on this matter and other issues featuring litigation over genetic testing. As 3M argued in its motion, recent trends throughout the country suggest an increase in defendants seeking genetic testing. Be sure to check back to see if this decision sends ripples of similar outcomes throughout jurisdictions nationwide.

[1] McCabe v. 3M Company, et al., Civil No. 1CCV-22-0001318 citing James M. Beck, Recent Civil Discovery Decisions Addressing Genetic Testing, 18 Mass Torts Litigation 13, 13-17, Summer 2020 (discussing Cusick v. Cusick, 210 A.3d 1199 (R.I. 2019); Kaous v. Lutheran Med Ctr., 30 N.Y.S. 3d 663 (N.Y. App. Div. 2016): Burt v. Winona Health Servs., 2018 WL 3647230 (D. Minn. Aug. 1, 2018); Ortwein v. Certainteed Corp., 2014 WL 12911977 (Cal. Super. Ct. Dec. 22, 2014); Thrash v. Boeing Co., 2018 WL 2573071, at *3 (N.D. Cal. Mar. 2, 2018)).