Johnson v. Superior Court, B137002.
| Citation | 95 Cal.Rptr.2d 864,80 Cal.App.4th 1050 |
| Decision Date | 18 May 2000 |
| Docket Number | No. B137002.,B137002. |
| Court | California Court of Appeals |
| Parties | Diane L. JOHNSON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; California Cryobank, Inc., et al., Real Parties in Interest. |
La Follette, Johnson, De Haas, Fessler & Ames and Gillian N. Pluma, Los Angeles, for Real Party in Interest Cappy M. Rothman.
Davis Wright Tremaine, Gary L. Bostwick, Santa Monica, and Rochelle L. Wilcox for Real Party in Interest John Doe.
No appearance for Real Party in Interest Charles A. Sims.
Petitioners Diane L. Johnson and Ronald G. Johnson, along with their minor daughter Brittany L. Johnson, filed an action against real parties in interest, California Cryobank, Inc., Cappy Rothman, M.D., and Charles A. Sims, M.D., claiming that real parties failed to disclose that the sperm they sold came from a donor with a family history of kidney disease called Autosomal Dominant Polycystic Kidney Disease (ADPKD). That sperm was used to conceive Brittany who has been diagnosed with this serious kidney disease. When petitioners sought to take the deposition and obtain documents of John Doe, the person believed to be the anonymous sperm donor, real parties (including John Doe) filed motions to quash the deposition subpoena. At the same time, petitioners filed a motion to compel compliance with the deposition subpoena. The trial court denied petitioners' motion and granted the motions to quash the deposition subpoena. By their petition, petitioners seek a writ of mandate directing the superior court to vacate its order and issue a different order compelling John Doe's deposition and the production of records.
The novel issue presented here is whether parents and their child, conceived by the sperm of an anonymous sperm donor, may compel the donor's deposition and production of documents in order to discover information relevant to their action against the sperm bank for selling sperm that they alleged transmitted ADPKD to the child. As fully discussed below, we conclude that the alleged sperm donor in this case must submit to a deposition and answer questions, as well as produce documents, which are relevant to the issues in the pending action, but that his identity should remain undisclosed to the fullest extent possible.
Petitioners sued Cryobank, as well as its employees, officers, and directors, Doctors Sims and Rothman, for professional negligence, fraud, and breach of contract. In their second amended complaint, petitioners allege as follows. Diane and Ronald Johnson decided to conceive a child through the use of a sperm donor upon the recommendation of their infertility doctors. The Johnsons contacted Cryobank's sperm bank facility in Los Angeles. Ultimately, Cryobank sold the Johnsons frozen sperm specimens donated by Donor No. 276. At or near the time of sale, the Johnsons signed Cryobank's form agreement that provided, in relevant part, that "Cryobank shall destroy all information and records which they may have as to the identity of said donor, it being the intention of all parties that the identity of said donor shall be and forever remain anonymous."
At the time of their purchase, Cryobank assured the Johnsons that the anonymous sperm donor had been fully tested and genetically screened. The Johnsons' doctors then implanted the purchased sperm in one of Diane Johnson's fallopian tubes. The procedure was successful and Brittany was born on April 18, 1989. In May 1995 the Johnsons were informed that Brittany was positively diagnosed with ADPKD.
As neither Ronald nor Diane Johnson has ADPKD or a family history of the disease, it was Donor No. 276 who genetically transmitted ADPKD to Brittany. At the time Donor No. 276 sold his sperm to Cryobank in December 1986, Doctors Sims and Rothman at Cryobank interviewed him and learned that the donor's mother and his mother's sister both suffered from kidney disease and hypertension, and the donor's mother suffered a 30 percent hearing loss before the age of 60. The presence of multiple instances of kidney disease coupled with hypertension and neurological disorders, such as deafness, are red flag indicators of the presence of ADPKD in Donor No. 276's family, and thus, Cryobank and Doctors Sims and Rothman knew that Donor No. 276's sperm could be at risk of genetically transferring kidney disease.
Even though Cryobank knew of Donor No. 276's family history of kidney disease, none of this information was provided to the Johnsons at or prior to the time they purchased the sperm specimens. Despite this knowledge, Cryobank's staff falsely represented to the Johnsons that the sperm they were purchasing was tested and screened for infectious and genetically transferable diseases and safe to effectuate their pregnancy. Cryobank failed properly to test and screen Donor No. 276 and conduct further investigation or testing of the donor once they learned that he had a family history of kidney disease.
Cryobank answered, asserting several affirmative defenses to petitioners' action, including comparative fault. Cryobank alleges that "persons or parties not named [in] this action ... may have contributed to a certain degree to the injuries alleged to have been sustained by plaintiffs."
During the course of the action, petitioners propounded discovery to Cryobank seeking information regarding Donor No. 276, including his name, address, and medical history. Cryobank objected to providing any information regarding Donor No. 276, claiming the donor's right to privacy and his physician-patient privilege. Cryobank did, however, produce two donor consent agreements that were in use at the time Donor No. 276 sold his sperm. Both of these agreements state that the donor will be compensated for each sperm specimen, that he will not attempt to discover the identity of the persons to whom he is donating his sperm, and that his identity "will be kept in the strictest confidence unless a court orders disclosure for good cause...." Cryobank also produced a document showing that on September 6, 1991, Cryobank informed Diane Johnson that Donor No. 276 had been withdrawn from the donor program because "new information on his family members ... indicates that he is at risk for kidney disease" and that a "few small cysts were found" after performing a "renal ultrasound." Cryobank's responses to interrogatories indicated that Donor No. 276 had sold 320 deposits of his semen to Cryobank. Donor No. 276's agreement with Cryobank indicated that he received approximately $35 per semen specimen. Donor No. 276 thus received a total of $11,200 for his sperm.
Cryobank also produced documents to petitioners at the deposition of Cryobank's genetic counselor, which included the following: (1) a December 1986 donor profile chart indicating that Donor No. 276's mother and aunt have or have had high blood pressure and kidney disease and that his mother had experienced 30 percent deafness before age 60, and (2) a May 1995 letter from Cryobank's genetic counselor to Brittany's physician indicating that Donor No. 276's (a) maternal aunt, age 63, is affected with ADPKD and has had a kidney transplant, (b) maternal grandmother died at age 49 of ADPKD and heart failure, (c) mother, age 57, is affected with ADPKD and "currently is in good health," and (d) sister, age 32, has been evaluated for ADPKD and is "apparently not affected." The letter indicated that Donor No. 276 "is in good health" and "had a renal ultrasound examination in June 1991" and "there was no evidence of hydronephrosis of either the right or left kidney." The May 1995 letter also enclosed a "pedigree" medical history obtained from Donor No. 276 in April 1991. None of the documents produced identified the donor or any member of his family.
Petitioners moved to compel further responses to their discovery requests regarding the identity and medical history of Donor No. 276. They also moved to compel answers to questions asked of Cryobank's genetic counselor regarding Donor No. 276's identity and medical history. Petitioners argued that they were entitled to have all of Donor No. 276's medical information in Cryobank's possession and disclosure of Donor No. 276's identity so that they could question him directly because the information (1) was relevant to the issues in the litigation, and (2) was necessary "as a predictor of the medical fate of Brittany" and is "one of the most reliable indicators of Brittany's future."
Petitioners submitted two declarations from Brittany's doctors in support of their motion. One of the doctors stated that Brittany has He expressed the "utmost concern" in A second doctor stated that Donor No. 276's ...
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