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Jack v. Asbestos Corp. Ltd.

United States District Court, W.D. Washington, Seattle

October 23, 2017

PATRICK JACK, et al., Plaintiffs,
v.
ASBESTOS CORPORATION LTD., et al., Defendants.

          ORDER GRANTING EMERGENCY MOTION FOR PRESERVATION OF EVIDENCE

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before the court is Defendant Genuine Parts Company's ("GPC") emergency motion for preservation of evidence (Mot. (Dkt. # 207)), joined by Defendants Kelsey-Hayes Company ("Kelsey-Hayes"), MW Customs Papers LLC ("MW"), Asbestos Corporation Limited ("Asbestos Corp."), Ingersoll Rand Co. ("Ingersoll Rand"), and Velan Valve Corporation ("Velan") (collectively, "Defendants") (see 10/18/2017 Not. of Joinder (Dkt. # 209); 10/20/2017 Not. of Joinder (Dkt. # 222)). The court has considered the parties' submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. The court also heard arguments of the parties at two telephonic hearings. (See 10/18/2017 Min. Entry (Dkt. # 214); 10/19/2017 Min. Entry (Dkt. # 221).) Being fully advised, the court GRANTS the motion for preservation of evidence and ORDERS the parties to meet and confer, and submit a joint statement with the information detailed below.

         II. BACKGROUND

         Plaintiffs Leslie Jack and her late-husband Patrick Jack brought suit against numerous defendants, including GPC, Kelsey-Hayes, MW, Asbestos Corp., Ingersoll Rand, and Velan. (See generally Compl. (Dkt. #1).) The complaint alleges that Mr. Jack was exposed to asbestos throughout his life (Compl. ¶ 1) and learned in July 2016 that he had mesothelioma (id. ¶ 44F). He and his wife brought suit against defendants that "manufactured and/or put asbestos and asbestos-containing products ... into the stream of commerce and/or used asbestos containing material at work sites where [Mr. Jack] worked." (Id. ¶ 46.)

         Mr. Jack passed away on October 15, 2017. (Loftis Deck (Dkt. # 208) ¶ 4, Ex. B at 1.) Mrs. Jack's attorney notified opposing counsel of this news on October 17, 2017. (Mot. at 2; Loftis Deck ¶ 4, Ex. B at 1.) Counsel for GPC replied the same day, renewing a prior defense request for an autopsy. (See Loftis Deck ¶ 5, Ex. C at 1.) Mrs. Jack's attorney responded that "the asbestos companies who manufactured, sold, and distributed asbestos products without warnings that Mr. Jack used throughout his life do not have a legal right to interfere with the funeral and burial plans of Mr. Jack's grieving family." (Loftis Decl. ¶ 6, Ex. D at 1.) Her attorney also informed GPC that the family is scheduled to cremate Mr. Jack's remains, likely on Thursday, October 19, 2017. (Id.) After conferencing over the telephone, the parties could not agree on the autopsy issue. (Compare Loftis Decl. ¶ 10, Ex. H, with Id. ¶ 11, Ex. I.)

         On October 18, 2017, GPC filed an emergency motion to "compel [Mrs. Jack] to make the remains of [Mr. Jack] available for an autopsy and preservation of the lungs for later digestion studies, " pursuant to Federal Rule of Civil Procedure 35. (Mot. at 1.); see Fed. R. Civ. P. 35(a). Other defendants-Kelsey-Hayes, MW, Asbestos Corp., Ingersoll Rand, and Velan-joined GPC's motion. (10/18/2017 Not. of Joinder at 1; 10/20/2017 Not. of Joinder at 1.) The court held a telephonic hearing the same day and issued a TRO preserving the status quo until the court could hold a hearing on the merits of the motion. (See 10/18/2017 Min. Entry.) On Thursday, October 19, 2017, the court held the hearing on the merits, granted a continuance of the previously-issued TRO, and ordered preservation of the body in whole until the parties submitted supplemental briefing. (See 10/19/2017 Min. Entry.) As requested, GPC and Mrs. Jack have submitted supplemental briefing and various declarations in support of their respective arguments. (See Defs. Supplemental Br. (Dkt. # 224); Pls. Supplemental Br. (Dkt. # 227).) The court now considers the merits of the emergency motion.

         III. ANALYSIS

         Defendants argue that Federal Rule of Civil Procedure 35 permits the court to make the remains of Mr. Jack available for autopsy so that his lungs can be preserved for later medical studies.[1] (Defs. Supplemental Br. at 1.) Mrs. Jack argues that Defendants have not shown the necessary good cause for an autopsy to be ordered. (Resp. (Dkt. # 217) at 6-7.) The court finds that Defendants have sufficiently demonstrated good cause, and thus grants the motion to preserve evidence.

         A. Legal Standard

         Federal Rule of Civil Procedure 35(a)(1) provides that ''[t]he court.. . may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). Such an order "may be made only on motion for good cause and on notice to all parties and the person to be examined; and... must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Id. 35(a)(2). As a pretrial discovery rule, Rule 35(a) is interpreted liberally in favor of granting discovery. See Schlagenhauf v. Holder, 379 U.S. 104, 114-15 (1964). However, courts are skeptical of vague requests to conduct Rule 35(a) medical examinations because "Rule 35(a) does not afford a carte blanche right of... examination." In re Certain Asbestos Cases, 112 F.R.D. 427, 434 (N.D. Tex. 1986) ("Certain Asbestos I").

         By its express terms, Rule 35 requires the movant to demonstrate that (1) the matter of a party's physical condition is "in controversy"; and (2) there is "good cause" for the examination. Schlagenhauf, 379 U.S. at 117. These two requirements "are not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Id. at 118. The requirements are met "only when the movant produces sufficient information about the particular decedent." Certain Asbestos I, 112 F.R.D. at 435. "The ability of the movant to obtain the desired information by other means is also relevant." Id.

         Defendants are correct that Rule 35(a) applies to autopsies. (See Mot. at 4.) In the context of an autopsy, courts require a movant to show that "(1) the decedent's physical condition is in controversy and (2) that an autopsy is the most medically reasonable method, considering the reasonable medical alternatives, for determining the decedent's physical condition at death." Belkow v. Celotex Corp., No. 89 C 3049, 1989 WL 56976, at *2 (N.D. Ill. May 22, 1989).[2] The movant must demonstrate each requirement through affidavit testimony. In re Certain Asbestos Cases, 113 F.R.D. 612, 614 (N.D. Tex. 1986) ("Certain Asbestos II'').

         B. Defendants' Emergency Motion to ...


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