colorado's i represent the callus the parents of a minor child cal in a personal injury case pending in jersey county the parents have filed that action defendants the police filed a motion for rule two hundred and fifteen dollars examination of the minor child as well as the parents in his the position of the appellant's that the court did not have the jurisdiction and abused his discretion in ordering the parents to undergo a genetic testing which we'll talk a little bit more about in a minute and also that it abuse his discretion in ordering the minor child to undergo the testing based upon the contents of the file i probably had a partner once who told me i could screw up a rear end collision and end up in the supreme court and i may have done the same thing here i polish as my briefs were over long the the basic issue in this case is whether the trial court under rule to fifteen with regard to the physical examination of a party had the power to order the parents to undergo a physical examination to fifteen as a meant it creates two classes of persons who the court can ordered to be examined those would be a party who has placed his or her physical condition in controversy and a person under the control of a party who has placed their physical condition at controversy and the plaintiffs the appellant's would submit that they as the next friends have not placed their medical condition at issue in this lawsuit route to fifteen it is pretty clear as to to what who the court can order to undergo an examination here the plaintiffs in pursuing the personal injury claim for the minor child as next friends are not parties and the traditional sense to the lawsuit they are representative parties  the law is very clear and i've cited the cases to the court that state that it's the rosenbach versus six flags case and the court case that the in pursuing a claim on behalf of your minor child a person who is under a disability and cannot pursue the kind themselves that you are acting as an agent of the court and that you are not the true party in interest and we would take the position as we did in the trial court that the court simply cannot order the parents to undergo this physical testing whether it whether it would have been genetic testing or a simple blood testing the yes if there are there are experts who has that opinion i'm assuming it's at least possible that the child's  sequencing testing from the child alone now of if they were seeking the genetic testing of the child alone i might have a more difficult problem but they are not they are seeking to get a blood child be tested and it could be a court order the minor child undergo the ws custom yes the court could it was appropriate we would take the position that since the court can't  order the parents to undergo the testing why have the child tested what do you accomplish except to create without in this congress disagree with me i'm sure without all of the genetic information then it's a shot in the dark let me ask this question would you agree that it would be wrong to have the defendant held liable for claims of the medical malpractise for the child's would not be wrong far the defendants to be held responsible if a jury were to determine based upon admissible evidence in appropriate testing that the defendants were responsible no i don't think that would be  case which is discussed in the breeze where the defendant did put on an expert it said based upon his opinion and his review of the medical records that that that the injury was the result of a genetic defect and not in i'm not saying that the defendant's expert can't testify what i'm saying is that the parents have a constitutional right to be secure in their persons and that that the trial court in this court in the illinois supreme court don't have the power yours while you're on it there there's a couple of things number one is the genetic testing was already done in children's hospital on the minor child to determine if there was a genetic factor to the testing and it came back negative at the time she was born and treated what the defendants are proposing it is something new and novel this whole exome testing the test over twenty thousand dollars genes in human genetic makeup but if you  has is the test in its whole exome sequence that it the standard test for genetic defects genetic explanations are that the child's insurance was tested and is part of the record in this case and has been provided to the defend what they're proposing is is is passed being much more extensive of not only the trial which if they the court would find that they have an appropriate reason to do that it would be within the power because the child's medical condition is in controversy but there are limits on the court and on the discovery process that how i mean can we test anyone they were forbidden by the question is there some i'm smarter than doctors but i don't know that hasn't been proposed what we know is that the testing that the treaters recommended was done and that the defendants want to do something more but it does not involve only the minor child it involves parents who get i mean for c yes sorry kind of lost my train of thought but if you look at the cases that are in the briefs there's fisher versus winding waters which is  denied it and it's kind of an interesting discussion on whether or not the court would have the power to order the parents to undergo a blood test and you pointed out that in general you do not under federal rule thirty five's the must that person just as in illinois has placed the medical condition in controversy and they discuss it in many different contexts both criminal and immigration law and different things  defect in a trial because of a toxic chemical exposure and there they saw it the testing well they stopped the parents medical records and the father and that's an interesting passage in that case they stopped the testing of the mother and father who was not a party at all and the court said well we certainly can't order the father who is not a party at all to undergo any genetic testing because he's not a party we just can't pick people off the street protesting they denied it as to the mother because they said without the mother and father detesting would be inconclusive which you know poses an interesting question me as an attorney what to what do we do with these types of cases do we file them t seeking recourse when it they only one parent sought recovery they couldn't do the testing or if the bank was placed in charge of this case that they couldn't see testing i guess what i'm arguing for is  that there is no reason to test the testing according to the defendant's expert is optimal only of both the parents or test isn't there a matter for the trial court to decide no other words are we supposed to be certain just a tro court's judgment regarding the child and maybe the court thought that the mo is one thing but useful might be another and i would argue that no reasonable person would do that based upon the fact that the defendant's experts on affidavit says that the testing requires the test both genetic parents be tested i understand that you advance in technology and medicine well what i mean it is invasive understood but what what is there to tell us i understand the purpose of discoveries lead to evidence or what might later become evidence but why should this be ordered let unless there's a question answered well your honor we're not there yet that was that was the years you were in harrisburg mercy was there adequate evidence to submit to the jury i don't believe that i would have standing to attack the concept of the testing but i believe that under the circumstance of its case and soon it with regard to the bank to serve as the representative of the child is actor x that's correct remember and if that happened what would we traditional gardy and that you have to turn over the control of your child's life to a bank that's what you'd be saying if the parents are not parties and i'll be honest if i if this is this appeal will open all kinds of questions about whether i have a conflict whether parents have a conflict what do we do with it when we go back to the trial court if there is a substitution of parties what happens what if one parents dismisses their claim what do we do the simple answer is that the court didn't have the authority to order the parents to undergo testing when their physical condition was not thank if you concluded your argument my time went off your sorrow i thank you a question about whether the trial court abused its discretion in ordering the testing the minor plaintiffs brooke and her parents i want to correct a misstatement that's been made the parents are plaintiffs in this action and they are parties to this action they did not sue was solely in a representative capacity on behalf of their daughter but they brought their own individual claims under the family medical expense act and we have cited a case brought versus wynona where this the parents had an individual claim the minor had a claim and the court did order this west testing i think it may be beneficial  assessing whether the court below acted reasonably which is all we have to show here there's no abuse of discretion if the court acted reasonably the difference between the prior testing which was called chromosom microarray was it looks to see if the genetic material is missing or incomplete it's a structural test that wes whole  at the content of the pieces of genetic material it is a substance test and i'm not saying this based upon my own medical expertise this is paragraph not i of the expert clinical geneticists that we provided the at the gave it to the court dr rushed and he explains what the chromosome will microarray that was previously performed bill limitations what it can diagnose and what it can't what the whole exome sequencing the west test that is being ordered now provides substantive information not available through that other test  we've talked about west being a more sophisticated test they're really complementary the microarray looks for structural abnormalities in the genetic material but west test looks with then for the content to see what is happening there according to the experts affidavit eighty five percent of been known genetic disease causing variants are with in that genetic material so they would be  through west but not discoverable through the microarray there are some structural problems that would only be diagnosed through the micro rate and not the west so the most complete picture is provided if you have  and that's really the basis of the trial court's ruling krista and skyler are individual parties to this action so they are within the purview of rule two  expense claim is important in this context to them what if they drop their well they could it drop it but we're looking in retrospect what was done in the trial court i understand that and i'm scratched some sometimes cases like this help us understand the futures were looking at me asking if that claim was dropped and or they either remained as representatives or bank was in charge would you concede that there would be no place to store the blood tests no all three part of all three of them no i would concede that the basis would be lacking under rule two hundred and fifteen dollars i think it would still be within the inherent authority of the court to order it not in every circumstance but here where you have the genetic condition is the central defense issue the plaintiffs are alleging it was medical malpractise on behalf of the defendants the defendants are arguing there is a genetic problem here that they are not responsible or i submit that if their parents were not parties and we were still trying to get them to submit to the test that it would be within the inherent authority of the trial court to order it that's not the question for today but going forward i think it would be outside the purview of rule two hundred and fifteen but we don't need to answer those questions today because our motion was brought under rule two fifteen the parents are parties christo excuse me broke is a party and the court certainly the trial court was within its discretion and there are cases on both sides of this issue cases where west testing has been ordered where it's been refused that's just a battle of the experts we can't say that the trial court here abused its discretion and let me just point out when the court granted the original motion to compel there were no counter at da s there was no contrary evidence the defense submitted the medical records were the plaintiffs the treating physicians for broke suspected a genetic cause for her difficulties that's why they ordered the there's notes in the medical records talking this is before a lawsuit was even filed talking about her physical characteristics or lab results a family history of developmental delays that all pointed in the direction of  genetic basis for some or all of her impairments as or the more optimal testing had been requested before there was a lawsuit and the treating physician and the hospital performed we wouldn't be here today is that that's exactly right that's exactly right well why didn't the treating physicians who already suspect to seek to have the optimal testing or minister it since the since their fear or their suspicion was negated by the original test director stan you're saying there's a difference between the tests want to maybe better than the  why didn't the treating physicians who had this right in front of them and may have knew better information for treatment purposes why did they get suggest i think the development of genetic testing west is more common now then previously when be microwaved rate was performed so it's really just an advance in the medical science west i don't believe was unknown at the time but it was certainly lesser known and lesser abuse so the micro array was like a st level st tier screening approach they didn't find a problem there and so they didn't order more so certainly if if the same situation was presented to traders now they might order both and we wouldn't have this issue at all but at that time it's already what seven years ago or so they did not order that nd level there was also unfortunately an insurance question they were looking about what insurance would pay for in the testing and i don't believe at that time that insurance would have paid for the west testing that may have changed also but you know when you're a you know seeking medical care unfortunately those insurance issues do come into play so i think they did what w reimbursable by insurance and they didn't find anything there but there's been no testimony there's no evidence to say that the microarray being negative means that there's nothing else to learn here nobody disputes that there is more to l outweighed any risk or potential risk to the patient and includes not only the child but the two parents and i am assuming that that finding was based on the very thorough affidavit provided by the expert dr raj and also the arguments made in the briefing and in the arguments made at the hearing and again the court doesn't have to be right the court just has to be reasonable there's no abuse once mesh and if the court acted reasonably for me what's your best argument were the based on the treaty or treaters records and all this other information and their expert witness who has provided a very fair affidavit is that it's not medical malpractise there is a genetic basis and we are grossly compromised in our defense if we are prevented from doing the testing that completely answers that question yes or no it's exactly what's been discussed there is a potential alternative cause here and our hands are being tied the really pursuing that we could i guess just have the experts say yes i think there's a genetic basis based on the information i have but there is more information that could be obtained and we'd like to obtain that and we are entitled to obtain that we can fight about validity and miss ability further down the road but right now we're not even able to get the results if the trial court's ruling is not firm and that's really i'm not certain of the answer to that let me give just a little more excellent degree of explaining in other words the optimal result would be if you got the parents and the child tested but would there be meaningful results would there be a result that could further inform the trial court on the issue of whether for instance the parents could be tested based upon the blood test and follow up tests of the child as a  possibility of it because this is a diagnostic tool it is possible that brooke could have a genetic issue that the west testing is good is that is did not detect so it's not an either or situation it's more a scale so we could get meaningful information just from testing brooke we get better results more accurate complete results from testing both of the biological parents as well but if all of that turned out negative it would not one hundred percent exclude the potential of an undiagnosed genetic problem but if you get a positive result if we got a positive result from brooke that she has a  cycle disorder i think that could be ascertained without the parents genetic material but more likely to be determined with that material and the reason why is this is a situation where the plane the parents genetic material helps explain the variances that are identify so if for example if the if the minor child has a variance and both of the plaintiff parents have a variance and the plaintiff parents don't have any of these abnormalities then that variance with likely be excluded as the cause of brooke's impairment this is not just a benefit to the defense as some of the cases talk about it's actually potentially beneficial to the plaintiffs as well who can use these results to try and refute the assertion that the genetic basis for the impairments exists this is just the knowledge gathering this is not just something that sent to baylor bay where does their analysis they send a report to the expert in the experts sends it to both sets of the council but there is nothing in the record that says they were takes a week a month six  alternative that the plaintiffs didn't ask for and that the defense didn't ask for i just don't think that that would be appropriate that the trial court acted reasonably on the record before it the evidence the arguments in the case before it and i think on this record that has to be a permed in total i think a different case on another day perhaps that strategy would be the one to use so i'm not discounting yet but we do you just do not have an abuse of discretion on this record let me ask your question you have a bank where the representatives we do still sought this test yes we would still have sought the test but i believe the grounds for the motion would have been the trial  inherent authority and not rule two hundred and fifteen i i didn't state that would you have sought the test for the child even if you weren't successful getting the parents yes we would have sought it for the child even if the parents even if the parents were adopted parents if it was adoptive parents with no biological connection then there would be no basis to do bichon attic testing we would have still sought it for the minor but then the parents would you know they don't have a connection so what mr leonard said earlier that like anybody is subject to the west as being in this situation that's not true it's only the biological parents that would provide dignity we understand that that was an exaggeration for and certainly sir let me ask you a question does don't bear apply well as we get into advancements of science do you think there's a possibility that and i know this wasn't brought up fly to discovery when we're talking about cutting edge medical scientific information but it does involve an invasion however modest a blood test invasion used depends upon the few you had to be halted but it would be different doesn't apply it could potentially but here the invasiveness of the test is just the blood drop which are routinely given for all sorts of testing not just west testing so i don't think it would apply in this situation but with regard to other types of testing that are more invasive something like a spinal tap or something like that yes like i could see that being the concern standard as a trial judge which i believe you've all been formerly you act on the evidence in front of you and the legal arguments in case authority in front of you i think judge meyer acted appropriately in making the order that he was brought in on a motion for reconsideration could have been provided to the court prior to its initial ruling and so based on that and is the scientific basis that these tests are not exclusionary they're complimentary with regard to the family expense act case that the parents illinois has a unique statutory structure as you well know that the minor child can't pursue i'll be honest if that is the basis for this grandparents he mentions their uncles and aunts all of that he would like to explore where does it end on a personal note i this is kind of strange this we was asked to to participate in a study with a relative was found to have a genetic trait and they have asked my entire generation of my family to participate in test simply to try to gather more into information about and i'll be honest with you before this case i understand sure of that but where does it end where does this information go how do we put an end to what if my insurance company finds out and they decide they're going to change my monthly premiums based upon my previous predisposition to a certain rule to fifteen is very clear the party the party must place there is a g that things were still going on in the trial court i didn't think i could name a new expert deposition were still being taken so says that some of the things i attached my motion to reconsider were not new they were depositions there the reports didn't exist well the