Client Alert: Plaintiffs’ Counsel Seeks to Amend Style Order Precluding Defendants’ Right to Autopsy and Pathology

In August 2011, asbestos counsel on both sides of the bar and then Presiding Judge Sharon Armstrong met in court to discuss revisions to the  Consolidated Pre-trial Order Re Asbestos Cases. Issues regarding latency of disease and access to pathology as evidence of exposure were a part of that in-court discussion. After a lengthy discussion, the parties reached the  following agreement regarding preservation of pathology and the right to autopsy:   

6.3       Autopsy and Pathology Reports.

(a)        Plaintiffs’ counsel shall attempt to obtain authorizations for autopsies from each plaintiff, and autopsies should be conducted for each plaintiff who expires for any reason during the pendency of this litigation, subject to religious or ethical considerations personal to that plaintiff or the immediate family.  Defendants may provide a defense pathologist at their cost to observe the autopsy, who may request additional tissues be taken but shall not otherwise participate in the performance of the autopsy. The defense pathologist shall be provided with access to tissue samples, slides, and other matters reasonably necessary to make his/her own diagnosis. Tissue slides and other factual data obtained by the autopsy physicians and/or pathologists shall be made available one to the other. All reports and information furnished by the autopsy physician and/or pathologist shall be distributed to all counsel.

(b)        Upon learning of the death of any plaintiff, plaintiff’s counsel shall contact defense counsel promptly to enable defendants to elect whether or not to send a defense pathologist to observe the autopsy. (emphasis added)

For the past 7 years, parties have been proceeding in accordance with the 2011 Consolidated Order. However, in a recent King County asbestos case currently set for trial in March 2018, the defendants were denied access to the remains for purposes of an autopsy as required by the Revised Consolidated Order. After being advised of the plaintiff’s passing, the defense requested an autopsy, which request was denied on religious and ethical grounds.  The body was disposed of and the parties proceeded with discovery. Defendants did not file a motion compel the autopsy. Depositions took place in which the defendants sought testimony regarding the bases for denying the autopsy.  A motion for spoliation followed. The Court found that there had been spoliation of evidence because plaintiffs did not made an autopsy available as required by Paragraph 6.3 and  failed to establish sufficient “religious or ethical” bases for refusing the autopsy.

In response to that pre-trial ruling, plaintiffs’ counsel filed a lengthy petition to the King County Superior Court seeking to remove Paragraph 6.3 form the Consolidated Order on constitutional grounds and that the order conflicts with the current statutory scheme under RCW 68.50.160(1) which gives  the next of kin the right to direct the disposition of the remains. 

Given the significance of the Petitions to all pending King County asbestos cases, the parties concerned have agreed to provide the Court with a briefing schedule and will set a date for oral argument later this month. We anticipate seeking participation from former Judge Sharon Armstrong as well as those counsel who were present during those in-court negotiations to provide the historical context which lead to the addition of the provision regarding preservation of pathology.  

More to come. 

For additional information, please contact:

Melissa K. Roeder at 206-456-5068 or mroeder@foleymansfield.com