Herlinda Estrada et al. vs Chattem, Inc., et al.

Plaintiffs Herlinda Meza Estrada and Hector Guadalupe Estrada move to compel nonparty U.C. San Diego Health (“UCSD”) to comply with Plaintiffs’ deposition subpoena for the production of business records (pathology materials), personally served on UCSD on April 24, 2026.

The subpoena seeks the release of Mrs. Estrada’s own formalin-fixed, paraffinembedded (“FFPE”) pathology tissue blocks D1 through D16 from her August 2025 surgery (Accession No. HSC-25-30913).

UCSD did not serve written objections, did not move to quash or modify the subpoena, and has filed no opposition to this motion despite personal service and confirmed receipt.

The Court GRANTS the motion for the reasons stated below.

The Court orders UCSD to produce to Plaintiffs the pathology specimens contained in blocks D1 through D16 (Accession No. HSC-25-30913) within five (5) calendar days of service of notice of this order.

I.

Background

This is an asbestos personal-injury action.

Plaintiff Herlinda Meza Estrada, age 72, alleges that her terminal, stage III malignant mesothelioma was caused by exposure to asbestos, asbestiform fibers, and fibrous talc in Defendants’ cosmetic talcum-powder products.

Defendants deny that their products contain asbestos.

Considering Mrs. Estrada’s condition, the Court has granted calendar preference and set trial for September 14, 2026.

In August 2025, Mrs. Estrada underwent a pleurectomy and decortication, left hemidiaphragm resection, and pericardial resection at UCSD.

Tissue removed during that surgery was preserved by UCSD into nineteen FFPE blocks, including blocks D1 through D16 (left pleurectomy, visceral and parietal, and decortication).

According to the surgical pathology report, the D-specimen blocks contain representative sections of tissue (D1–D10) and fullthickness sections of pleura (D11–D12), pericardium (D13–D14), and diaphragm (D15–D16). (Plaintiffs’ Memorandum of Points and Authorities (“Memo”), pp. 7:12–8:1; Declaration of Angelina Austin (“Austin Decl.”), ¶ 14 & Ex. 6 (Surgical Pathology Report).)

Plaintiffs explain that a plaintiff’s pathology serves two distinct evidentiary purposes in a talc-mesothelioma case.

Stained slides (including “recut” slides) are used to confirm or refute the mesothelioma diagnosis, while the FFPE tissue blocks may be “digested” (destructively tested) to determine whether asbestos or other fibers are present in the plaintiff’s own tissue — evidence Plaintiffs describe as central to proving causation.

In February 2026, Plaintiffs amicably obtained fifteen recut slides from UCSD (from block D12) after Mrs. Estrada signed UCSD’s “Consent Supplement: Use of Pathology Tissue Material,” acknowledging that further testing could exhaust her tissue and preclude further clinical research.

Because Plaintiffs already have the recut slides, this motion does not seek slides; it seeks only the D-specimen blocks needed for fiber-burden testing. (Memo, pp. 6:16–7:11, 8:2–9:3; Austin Decl., ¶¶ 11–12, 15 & Ex. 7.)

The parties have stipulated to a protocol governing destructive testing of Mrs. Estrada’s pathology materials (Stipulation and Order re: Testing of Plaintiff Herlinda Meza Estrada’s Pathology Materials, entered June 9, 2026), reflecting that both sides anticipate testing this tissue. (Memo, p. 13:18–21; Austin Decl., ¶ 18 & Ex. 9.)

On April 24, 2026, after the Court permitted discovery to commence, Plaintiffs personally served UCSD’s Department of Pathology with a business-records subpoena (on Judicial Council form SUBP-010) demanding release of Mrs. Estrada’s pathology specimens, with a production date of May 14, 2026.

UCSD neither produced the blocks nor served any objection.

Plaintiffs then engaged in extended meet-and-confer efforts: a May 20, 2026 telephone call with UCSD’s Anatomic Pathology Laboratory Quality Assurance Supervisor; six telephone calls to UCSD Risk Management (May 26, June 4, 10, 15, 17, and 18); and emails to Risk Management on June 10 and 16.

UCSD Risk Management did not respond.

On June 18, 2026, the pathology laboratory relayed that “Risk reviewed the subpoena and has denied the request for the release of tissue block[s],” citing that the blocks “are finite, irreplaceable resources that may be necessary for ongoing patient care, as well as institutional obligations and regulatory requirements,” and UCSD offered only additional recut slides. (Memo, pp. 10:15–24; Austin Decl., ¶¶ 2–8 & Ex. 1–5.)

Plaintiffs offered to enter any reasonable hold-harmless agreement and pointed to Mrs. Estrada’s signed Consent Supplement, but UCSD did not further engage.

Plaintiffs filed and personally served this motion on July 2, 2026.

UCSD’s Quality Assurance Supervisor confirmed receipt on July 7, 2026 (“Received, thank you.”).

UCSD filed no opposition, as Plaintiffs’ reply confirms. (Memo, p. 16:15–28; Austin Decl., ¶ 5; Reply, pp. 2:1–22; Declaration of Henry A. Steinberg (“Steinberg Decl.”), ¶¶ 2–5 & Ex. 1–3.)

II.

Legal Standard

A party may obtain discovery from a nonparty through a deposition subpoena. (Code Civ. Proc., § 2020.010.)

Where only the production of business records is sought, a copy of the deposition subpoena serves as the notice of deposition. (Code Civ. Proc., § 2025.220, subd. (b); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130–131.)

A business-records subpoena must designate the records to be produced “either by specifically describing each individual item or by reasonably particularizing each category of item,” need not be accompanied by an affidavit of good cause, must be directed to the custodian or other qualified person, and must set a compliance date no earlier than 20 days after issuance or 15 days after service, whichever is later. (Code Civ. Proc., § 2020.410, subds. (a), (c).)

If a deponent “fails to ... produce ... any ... tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that ... production.” (Code Civ. Proc., § 2025.480, subd. (a).)

Such a motion must be made no later than 60 days after completion of the record and be accompanied by a meet-and-confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).)

The Court also retains broad authority over subpoenas, including the power to order compliance and to make any other appropriate order. (Code Civ. Proc., § 1987.1.)

A nonparty properly served with a valid subpoena who fails to comply without justification may be subject to sanctions. (Terry v. SLICO (2009) 175 Cal.App.4th 352, 355.)

Plaintiffs’ authorities are in accord. (Memo at pp. 11–12.)

The scope of permissible discovery is broad: any matter, not privileged, that is relevant to the subject matter and either admissible or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.)

III.

Analysis

A. The Motion is Unopposed; UCSD has Waived Objections

The record establishes, and the reply confirms, that UCSD filed no opposition to the motion notwithstanding personal service and its written confirmation of receipt.

A nonparty served with a business-records subpoena who objects to production must serve a written objection before the production date, and a nonparty that contends a subpoena is defective or improper may move to quash or modify it. (See Code Civ. Proc., §§ 1985.3, subd. (g), 1987.1.)

UCSD did neither.

By failing to serve any timely objection, failing to move to quash, and failing to oppose this motion, UCSD has forfeited any objection to the subpoena’s form or scope, and its bare, out-of-court “denial” of the subpoena is not a recognized basis for noncompliance.

There is no authority permitting a nonparty to unilaterally decline to comply with a facially valid, properly served subpoena. (Reply, pp. 2:1–22; Steinberg Decl., ¶¶ 4–5 & Ex. 3; Memo, pp. 12:5–13:8; Austin Decl., ¶ 8 & Ex. 5.)

B. The Subpoena is Procedurally Valid, and the Motion is Timely

The subpoena was issued on Judicial Council form SUBP-010 and, through its Attachment 3, describes the specific items sought: Mrs. Estrada’s pathology specimens from Accession No. HSC-25-30913.

This satisfies the particularity requirement of section 2020.410, subdivision (a).

It was directed to UCSD’s Department of Pathology (the custodian of the specimens) and personally served on April 24, 2026, with a compliance date of May 14, 2026 (twenty days after service) satisfying section 2020.410, subdivision (c).

The motion, filed July 2, 2026, is within sixty days of the May 14, 2026 non-production and is supported by a detailed meet-and-confer showing, satisfying section 2025.480, subdivision (b).

Indeed, although a business-records subpoena requires no showing of good cause, Plaintiffs’ meet-and-confer efforts here were extensive and made in evident good faith. (Memo, pp. 11:8–13:8; Austin Decl., ¶¶ 2–3, 6–8, 17 & Ex. 1–5.)

C. The Requested Materials are Relevant

The requested specimens are Mrs. Estrada’s own tissue, removed from her body during surgery, and go to the heart of the disputed causation issue: whether asbestos or asbestiform fibers are present in her tissue.

Fiber-burden (“digestion”) testing can be performed only on the tissue blocks, not on slides; the recut slides Plaintiffs already obtained cannot answer the causation question.

That the parties have stipulated to a testing protocol (June 9, 2026) confirms the centrality of this evidence to both sides.

Relevance is not seriously in question, and no privacy interest weighs against production; the tissue is the plaintiff’s own, she has expressly consented to its release and testing through UCSD’s Consent Supplement, and she has offered a hold-harmless agreement.

Given the September 14, 2026 preferential trial date and imminent expert discovery, Plaintiffs’ need is both substantial and time-sensitive. (Memo, pp. 6:18–27, 13:9–14:18; Austin Decl., ¶¶ 10–12, 15, 18–19 & Ex. 7, 9.)

D. The Form of the Subpoena Does not Defeat Production

The Court notes a characterization question: a subpoena “for production of business records” under section 2020.410 speaks of records produced “for copying,” whereas Plaintiffs seek the original physical tissue blocks rather than copies of documents.

To the extent the specimens are better understood as “tangible things” than as records to be copied, that distinction does not warrant denial of the motion.

Section 2025.480, subdivision (a), expressly authorizes an order compelling production of a “tangible thing ... specified in ... a deposition subpoena,” and the Court’s authority under section 1987.1 is broad enough to order compliance and fashion appropriate terms.

Most importantly, any objection to the form of the subpoena was UCSD’s to raise by timely written objection or a motion to quash; having done neither and having filed no opposition, UCSD has waived the point.

On this unopposed record, particularly given Plaintiffs’ clear entitlement to Mrs. Estrada’s own pathology tissue, the Court declines to let a characterization argument that no party has advanced stand in the way of production. (See Memo, pp. 11:8–13:21.)

E. UCSD’s Stated Reasons Do Not Justify Noncompliance

The reasons UCSD conveyed informally (i.e., that the blocks are finite and “may be” needed for ongoing patient care, and unspecified “institutional obligations and regulatory requirements”) were never presented to the Court through an objection, motion, or opposition, and are unsupported by any evidence.

On the present record they do not excuse compliance.

Mrs. Estrada has consented in writing to the release and potential exhaustion of her tissue, Plaintiffs have offered a hold-harmless agreement, and the surgical pathology report reflects that the blocks have not been used since September 2025.

If UCSD has a genuine, particularized need to retain a minimum quantity of diagnostic tissue, the appropriate course was to raise it through the meet-and-confer process or a motion, not to disregard the subpoena.

To preserve UCSD’s legitimate interests while honoring Plaintiffs’ right to their own tissue, the Court’s order below permits the parties to address any such concern through the existing testing protocol and hold-harmless mechanism. (Memo, pp. 15:2–17:5; Austin Decl., ¶¶ 5, 8, 14–15 & Ex. 5–7.)

IV.

Conclusion

The Court GRANTS the motion to compel as follows:

1. Within 5 calendar days after service of notice of this order, nonparty U.C. San Diego Health shall produce and release to Plaintiffs the pathology specimens contained in FFPE blocks D1 through D16 from Mrs. Estrada’s August 2025 surgery, Accession No. HSC-25-30913.

2. Production shall be subject to Mrs. Estrada’s executed Consent Supplement and to the parties’ June 9, 2026 Stipulation and Order re: Testing of Plaintiff’s Pathology Materials.

The parties and UCSD may adopt by written agreement a mutually acceptable hold-harmless agreement and reasonable chain-of-custody terms.

Nevertheless, no such agreement is a condition of, or shall delay, the production ordered herein.

3. Plaintiffs have not sought monetary sanctions.

While the Court reserves the right to order sanctions in the future, it does not impose sanctions at this time.

4. Because UCSD is a nonparty that may not have appeared, Plaintiffs shall serve notice of this order on UCSD (including its Department of Pathology and Risk Management) by personal service or another method reasonably calculated to give actual notice, and shall file proof of service.

Plaintiffs shall prepare the order and judgment in accordance with California Rules of Court, rule 3.1312.

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