Medical testing of excised tissue in the context of litigation

James v Seltsam Pty Limited & Anor [2017] VSC 506 is an interesting interlocutory decision, for it focus on an application by defendant for an order requiring submission of plaintiff’s explanted lung for testing. The purpose of the testing was to shed light on whether the plaintiff suffered asbestosis or some other condition.

At [71] the court concluded that the the explanted lung is ‘property’ for the purposes of r 37.01. The court did not need to determine who owned that property; an order could be made directed at the laboratory holding the tissue.

There was no evidence of prejudice to the plaintiff in the lung being destroyed, such as the loss of an opportunity for further testing: [76].

At [82] the court noted:

I have already expressed my opinion that the testing to be undertaken on the lung has the potential – subject to interpretation of the results by medical experts – to determine a central question in this case which could, indeed, dispose of the case in its entirety.  As such, there seems little doubt that an order requiring the production and testing of the lung will facilitate the just outcome of the case.

And at [92]:

I consider, in the circumstances, that even though this is a test that has not been routinely used in the diagnosis of asbestosis or in litigation of asbestos related disease, the testing and the analysis goes to a critical and relevant issue in the case. I do not consider it to be a fishing expedition.  The testing has been recommended by a respiratory physician and on balance may be of forensically probative value in determining the critical issue of diagnosis.


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