      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY

JACOB MEYERS, by his natural           )
mother and next friend JANNA           )
LYNN MEYERS, and individually,         )
                                       )
                 Plaintiffs,           )
                                       )        C.A. No. N11C-07-009 JRJ
           v.                          )
                                       )
INTEL CORPORATION,                     )
                                       )
                 Defendant.            )

                                   ORDER

                         Date Submitted: April 2, 2015
                         Date Decided: June 11, 2015

     AND NOW TO WIT, this 11th day of June, 2015, upon consideration of

Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical

Examinations of Jacob, Janna, and Robert Meyers; Plaintiffs’ Response to

Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical

Examinations of Jacob, Janna, and Robert Meyers; and Intel Corporation’s Reply

Memorandum in Support of its Supplemental Memorandum to Compel the

Medical Examinations of Jacob, Janna, and Robert, IT APPEARS THAT:
      1.    On January 21, 2015, Intel filed a Motion to Compel the Medical

Examinations of Jacob, Janna, Robert, and Hayden Meyers. 1 The Court ordered

supplemental briefing on Intel’s Motion to Compel Plaintiff Janna Meyers and

Robert Meyers, Jacob’s parents, to submit to a “state-of-the-art” 2 genetic test

called “Trio Whole Exome Sequencing” because of the novelty and complexity of

the issues involved.

       2. By way of background, Plaintiffs allege Jacob’s birth defects are the

proximate result of “exposures to hazardous, genotoxic, and reproductively toxic

substances, pollutants or contaminants” through his parents Janna and Robert

Meyers’ work at Intel. 3

      3. Intel seeks an order compelling Jacob’s mother, Plaintiff Janna, and

Jacob’s father, Robert Meyers, a non-party to this lawsuit, to submit to a blood

draw and “Trio Whole Exome Sequencing.” Intel argues that there is at least a

35% probability that Trio Whole Exome Sequencing of Jacob, Janna, and Robert

will reveal that the genetic structure Jacob inherited from his parents caused his


1
  Defendant Intel Corporation’s Motion to Compel the Medical Examinations of Jacob, Janna,
Robert and Hayden Meyers (Trans. ID. 56641885). Intel has withdrawn its request for genetic
testing of Hayden Meyers, Jacob’s sibling, and a non-party to this lawsuit. Defendant Intel
Corporation’s February 3, 2015 Letter Regarding Additional Information About Medical Exams
(Trans. ID. 56708081). The motion to compel the medical examination of Plaintiff Jacob has
been resolved. (Trans. ID. 56729500).
2
   Defendant Intel Corporation’s Supplemental Memorandum to Compel the Medical
Examinations of Jacob, Janna, and Robert Meyers at 2 (“Def.’s Supplemental Memo.”) (Trans.
ID. 56841863).
3
  Compl. ¶ 26 (Trans. ID. 38474699).
                                            2
birth defects—not the alleged chemical exposures at Intel.4 According to Intel,

Trio Whole Exome Sequencing is used in cases where doctors believe there may

be a genetic explanation for a medical condition, but all of the particular genetic

variations that cause the condition have not yet been identified. 5

       4. Through this genetic test, the genetic sequencing of a child’s exome is

compared to the exome of the child’s biological parents.6 According to Intel, the

DNA of Jacob and both parents must be sequenced at the same time in order to

“have the best chance of determining whether there is an identifiable genetic cause

of [Jacob’s] health conditions.”7

       5. Plaintiffs do not dispute Intel is entitled to genetic testing of Plaintiff

Jacob, but argue that Jacob’s parents should not be subject to Trio Whole Exome

Sequencing because it is a highly invasive process, Janna is only a party to this

litigation by virtue of her involvement as guardian ad litem for Jacob, and Robert

is not a party to this litigation. 8 Plaintiffs further argue that because Robert is not

subject to this Court’s jurisdiction, this Court lacks the power to compel Robert to

submit to the genetic testing. 9


4
  Def.’s Supplemental Memo. at 1–2.
5
  Id. at 3.
6
  Id.
7
  Id.
8
  Plaintiffs’ Response to Defendant Intel Corporation’s Supplemental Memorandum to Compel
the Medical Examinations of Jacob, Janna and Robert Meyers at 2–3 (“Pls.’ Resp. Supplemental
Memo.”) (Trans. ID. 56919357).
9
  Id.
                                             3
       6. According to Intel, this Court has jurisdiction to order Janna and Robert

to submit to blood draws and genetic testing because Janna is a party and Robert

affirmatively invoked this Court’s jurisdiction.10

       7. Before this lawsuit was filed, both Janna and Robert requested chemical

exposure records from Intel pursuant to the Occupational Safety and Health Act

(“OSHA”), a federal statute which generally requires employers to provide

chemical exposure information to current and former employees upon request.11

Intel argues that because the Court ordered Intel to produce OSHA documents

(relating to chemicals Jacob’s parents were exposed to) in this litigation and Intel

“produced a broad collection of records,” Robert has somehow submitted to this

Court’s jurisdiction.12 The Court disagrees. Robert is not a party to this litigation

and has not taken an “affirmative act” in this case. 13

       8. Even assuming arguendo this Court has jurisdiction over Robert, he is

not a party to the litigation. Superior Court Civil Rule 35(a) provides that, “[w]hen

the mental or physical condition (including the blood group) of a party or of a
10
   Def.’s Supplemental Memo. at 7–10.
11
   29 C.F.R. 1910.1020; Pls.’ Resp. Supplemental Memo. at 3–4. The existence of those pre-suit
OSHA requests emerged in this litigation in the context of discovery dispute. Def.’s
Supplemental Memo. at 8–10; Pls.’ Resp. Supplemental Memo at 4–6.
12
   Intel Corporation’s Reply Memorandum in Support of its Supplemental Memorandum to
Compel the Medical Examinations of Jacob, Janna, and Robert at 4–5 (Trans. ID. 56939441).
13
   In S.E.C. v. Ross, the Ninth Circuit Court of Appeals provided several examples of an
“affirmative act” invoking the court’s personal jurisdiction. 504 F.3d 1130 (9th Cir. 2007). In
that case, the Ninth Circuit explained, “we have held that a party has consented to personal
jurisdiction when the party took some kind of affirmative act—accepting a forum selection
clause, submitting a claim, filing an action—that fairly invited the court to resolve the dispute
between the parties.” Id. at 1149.
                                               4
person in the custody or under the legal control of a party, is in controversy, the

Court in which the action is pending may order the party to submit to a physical or

mental examination . . . .” 14 It is clear that Rule 35(a) limits the class of persons

subject to a compelled examination to a party or a person in the custody or under

the legal control of a party. Because Robert is not a party to this lawsuit, this

Court has no authority to compel Robert to submit to genetic testing.

       9. Nevertheless, Intel argues that “independent of a rule or statute, a court

has the inherent authority to fashion whatever remedy is reasonably necessary to

ensure fair process and the quest for truth.” 15 The Supreme Court of the United

States has recognized that blood draws are “an invasion of bodily integrity

implicat[ing] an individual’s most personal and deep-rooted expectations of

privacy.” 16 Intel is unable to cite to any case law supporting this “inherent power”

in the context of compelling a non-party, who never put his physical condition at

issue, and over whom the Court has no jurisdiction, to submit to a highly invasive

blood draw and genetic testing. 17


14
   Super. Ct. Civ. R. 35(a) (emphasis added).
15
   Intel Corporation’s Reply Memorandum in Support of its Supplemental Memorandum to
Compel the Medical Examinations of Jacob, Janna, and Robert at 6 (Trans. ID. 56939441).
16
   Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (internal quotations omitted).
17
   The cases Intel relies on are distinguishable because those cases involve compelling an
individual to submit to a medical examination when that individual’s physical or mental
condition was directly at issue and the court had jurisdiction over the individual. See e.g., Lewin
v. Jackson, 492 P.2d 406 (Ariz. 1972) (holding court “had inherent power, apart from discovery
rule, to order examination to determine person’s physical and mental competency to testify at
deposition . . . .”); Matter of Estate of Rogers, 583 A.2d 782 (N.J. Super. Ct. App. Div. 1990)
                                                5
       10. In contrast to “standard” genetic tests that analyze one gene or small

groups of related genes at a time, Trio Whole Exome Sequencing is an

examination of one’s entire exome. 18 As noted above, according to Intel, there is

“at least a 35% probability” that Trio Whole Exome Sequencing will identify a

genetic cause for Jacob’s birth defects. 19 Given this low probability of success, the

significant privacy concerns relating to blood draws and genetic testing, the fact

that Robert is not a party, and the fact that this Court has no jurisdiction over

Robert, the Court finds no basis to compel Robert to submit to genetic testing.

       11. Intel stated that unless both biological parents are ordered to submit to

Trio Whole Exome Sequencing, it will not move forward with the genetic testing.

Therefore, Intel’s motion to compel with respect to Janna Meyers is likewise

denied.

       NOW THEREFORE, Defendant Intel Corporation’s Motion to Compel the

Medical Examinations of Janna Meyers and Robert Meyers is DENIED.

       IT IS SO ORDERED.




                                                  Jan R. Jurden, President Judge

(paternity testing relating to an intestate estate); State ex rel. St. Louis Pub. Serv. Co. v.
McMullan, 297 S.W.2d 431, 436 (Mo. 1956) (physical examination of the plaintiff’s wife
because the wife was the injured party in a loss for consortium claim).
18
   Pls.’ Resp. Supplemental Memo. at n.2.
19
   Def.’s Supplemental Memo. at 1–2, 7.
                                              6
