United States District Court, W.D. Washington, Seattle
ORDER GRANTING EMERGENCY MOTION FOR PRESERVATION OF
L. ROBART United States District Judge.
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.
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. ¶
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.)
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.
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. (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
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").
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."
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). 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
Defendants' Emergency Motion to ...