Bad Lab Work Held Privileged Under § 47(b)

Falcon v. Long Beach Genetics, No. D062807 (Mar. 21, 2014)

The court holds that the Civil Code § 47(b) litigation privilege applies to claims against a genetic testing lab for negligently conducting a DNA test in connection with a paternity proceeding. 

Defendant LBG is a genetic testing company that, under contract with the court, conducts genetic testing for paternity cases. In a 2003 paternity case brought by San Diego County, LCG conducted testing and determined that Mr. Patterson was not the father of the Ms. Falcon’s daughter. But LGC screwed up; the test used someone else’s DNA. Years later, after Ms. Falcon moved to reopen the paternity case, she learned of the error and sued LBG for negligence. For some reason that goes unexplained the opinion, Mr. Patterson was thereafter added to the case as a plaintiff. LBG obtained summary judgment against both plaintiffs on the grounds that their claims were barred by the Civil Code § 47(b) litigation privilege because the testing was conducted in connection with the county’s paternity proceeding. The court also denied plaintiffs’ leave to amend to add allegations that LBG’s negligence caused them injuries extrinsic to the litigation process. 

The court affirms. Although the litigation privilege primarily protects communications made in connection with a litigation, it also extends to conduct that is necessarily related to the communication if the gravamen of the claim rests on a communicative act. Here, although negligently conducting a DNA test is not a communication, it is nonetheless privileged when the test is conducted for the purpose of submitting evidence in court. In essence, LBG was acting as an expert witness, and California law is well-established the § 47(b) privilege applies to outside-the-courtroom work by testifying experts. Notably, that the testimonial use of the test was core to the cause of action was clear from plaintiffs’ theory of their injury pleaded in their complaints and argued in opposition to summary judgment—that the flawed test resulted in an erroneous finding of non-paternity.

Nor did the trial court abuse its discretion in denying leave to amend to add allegations of injury other than the erroneous result in the 2003 paternity case (and thus potentially outside the scope of the privilege). First, plaintiffs’ waited too long to seek leave. Second, they did not meet their burden to show how their new theory—that they were injured by LBG’s failure to tell them that the test was erroneous when LBG discovered that fact in connection with Patterson’s effort to reopen—would state a viable claim for negligence. They did not identify any source of duty. And third, their new theory did not square with the tolling allegations in the original complaint, so the court could also reasonably reject an amendment under the sham pleading doctrine.

Affirmed.