Judge Calls Request for Mesothelioma Tissue Sample “Egregious”
It is not uncommon for a defendant in a malignant mesothelioma to request biological samples from a victim, but those requests are generally made in a timely way, and in a way that is respectful of the victim’s health and wellbeing. By contrast, a recent request by Mercedes Benz was so far beyond either timely or reflective of concern that a New York judge called it “particularly egregious.”
Mesothelioma Victim’s Tissue Sample Deemed Too Limited
Mercedes Benz was named a defendant in Almando D. Rodney’s mesothelioma lawsuit more than two years ago. Though the company could have asked for a tissue sample at the time, they waited until recently for access to the sample that was made at the time of his diagnosis, saying that their expert witness needed it to ascertain whether they had been responsible for his illness.
The company’s attorneys used a legal maneuver known as a post-note-of-issue, which is only to be used in “unusual or unanticipated circumstances.” Their attorney argued that providing the mesothelioma patient’s pleurectomy specimen would not cause him harm and that failure to do so would harm their case. But the patient’s physician pushed back against that assertion, saying that a second pleurectomy would risk his health and that the remaining tissue might be needed for him to qualify for future clinical trials or new drugs or treatments.
Judge Denies Mesothelioma Defendant’s Request for Tissue
In a sternly worded decision, Supreme Court of New York judge Justice Adam Silvera called the request for the mesothelioma victim’s tissue sample “particularly egregious” and the company’s argument “unconvincing and wholly inapplicable.” He noted that the company had known that the pleurectomy sample existed for two years, and told the company that putting their legal argument’s interests over a “living mesothelioma plaintiff’s” interests in his health was inappropriate.
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