Final Judgment and Imposition of Sanctions Affirmed Against Automotive Defendant

Superior Court of New Jersey, Appellate Division, March 24, 2022

In this asbestos action, Deborah Marino (the plaintiff) alleged that her mother, Anita Creutzberger (the decedent), developed peritoneal mesothelioma from the decedent’s history of washing her husband’s and son’s clothing following their automotive work.  The plaintiff sued Ford Motor Company, among other defendants. During discovery in an unrelated case, Matthew Fyie, Ford’s employee designated to search for responsive discovery, testified that he did not review documents prior to his deposition as there were no documents to be found. After the plaintiff’s counsel confronted him with a 1974 Ford training manual, Fyie testified that he had seen the manual before and answered questions about the manual in a previous deposition. Following his deposition, the plaintiff moved for sanctions, suppression of Ford’s answer, and for the court to enter a default judgment. The court denied the plaintiff’s motion to strike and granted plaintiff’s motion for sanctions, which included a directed verdict on the issues of duty and breach of duty, instructing the jury that the foregoing sanction was a result of Ford’s violation of a court order and withholding of evidence, and $14,419.30 in attorneys’ fees and costs. Following trial, the jury found for the plaintiff and awarded $800,000 in compensatory damages. Five months later, the court entered final judgment in the amount of $1,024,359.39, including $750,000 (Survival Act damages), $50,000 (wrongful death damages), $194,000 (prejudgment interest), and $30,359.39 (counsel fees). 

Ford appealed on several grounds. First, there were several disagreements between the parties as to Ford’s contention that there were no relevant documents responsive to the plaintiff’s five deposition notices.   Following motions to quash the deposition notices and document requests, the parties agreed to a consent order in March 2014 which called for Ford, in relevant part, to:

  1. Search for training materials for the period 1960 to 1980 that were used to provide Ford sponsored training to dealership service managers and mechanics and any and all training for dealership service managers, and mechanics that referred to asbestos or handling asbestos containing products;
  2. [P]roduce any responsive documents it locates and pursuant to [Rule] 4:14-(2)(c) a corporate witness having knowledge of facts relating to the Ford sponsored training to dealership mechanics and service managers from 1960 to 1980 within [seventy-five] days of the date of [the] order.

In April 2014, Fyie testified in an unrelated New York asbestos trial that the 1974 manual was included in Ford’s training program for Ford dealership employees. In preparation for his trial testimony, Fyie consulted with Ford employee Albert Rocker. In May 2014, Ford responded to the plaintiff’s document request. Part of its response noted that they were “unable to locate any training manuals for the period 1960 to 1980 that were used to provide Ford sponsored training to dealership service managers and mechanics.” Ford further responded “that there are no available lists of former employees of the subject dealerships who participated in Ford sponsored training for service mechanics for the period 1960 to 1980.” In June 2015, Fyie testified in a deposition for this matter, where he answered “’I don’t know,’ ‘I’m not sure,’ ‘I’m not aware,’ or ‘I’m not familiar’” to almost two hundred questions. He did not review any documents prior to this deposition because there were no responsive documents found. Further, Fyie did not speak to Rocker in preparation for this deposition. When confronted by the plaintiff’s counsel with the 1974 manual, Fyie testified that he had seen the manual and testified about the same in the New York deposition.

The plaintiff moved to strike Ford’s answer for failing to produce the 1974 manual and “allow[ing] Fyie to give false testimony.” Ford contended that it complied with the discovery requests as Ford did not produce the 1974 manual during the New York deposition. Ford also argued that “the consent order did not apply to manuals, the 1974 training manual may have been purchased on eBay, and Ford could not be expected to comb the Internet for all relevant documents or monitor the documents produced by plaintiffs in all asbestos cases against it.” In addition, “Fyie made a good faith effort to obtain the information sought by the discovery questions and he did not speak with Rocker because he knew Rocker had no relevant knowledge.” The court denied the plaintiff’s motion to strike and granted the plaintiff’s motion for sanctions, which included a directed verdict on the issues of duty and breach of duty, instructing the jury that the foregoing sanction was a result of Ford’s violation of a court order and withholding of evidence, and $14,419.30 in attorneys’ fees and costs. On appeal, Ford argued that the trial court’s ruling that Ford violated the consent order was erroneous. However, the Appellate Court found that there was “little support” in the record as to Ford’s contention that they acted in good faith. As such, the trial court did not abuse its discretion in finding that Ford failed to comply with the consent order.

The Appeals Court also rejected Ford’s arguments that the unreasonable sanctions and their implementation during the trial prevented Ford from asserting a full defense during the trial. Ford contended that while the monetary sanctions were sufficient, “the additional sanctions removing the issues of duty and breach from the trial were unjust and unreasonable because Ford did not have the opportunity to argue against these sanctions.” The Appeals Court noted that Ford withheld the 1974 manual and characterized the claim that Fyie did not recall the New York testimony regarding the 1974 manual mere months after that testimony as “highly implausible.” In addition, the Appeals Court deemed Ford’s conduct throughout the discovery phase of this matter as a “deliberate disregard of the court’s authority.” Further, the court found that Ford was not prejudiced as they were still able to elicit precluded general causation evidence that chrysotile asbestos could not cause mesothelioma, as well as that mechanics were not at any greater risk of developing mesothelioma than the general population through the testimony of the plaintiff’s expert (Dr. Arthur Frank) and their own experts (Dr. Victor Roggli and Dr. Brent Finley).

Finally, Ford challenged two out-of-court statements admitted by the trial court. Under N.J.R.E. 803(c)(4), a hearsay statements is not excluded when the statement “(A) is made in good faith for purposes of, and is reasonably pertinent to, medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.” The Appeals Court found that the trial court did not err in admitting testimony from Dr. Roggli discussing a passage from decedent’s treating physician’s medical records as Dr. Roggli reviewed this record in reaching his opinion. Further, “decedent’s treating physician merely noted that decedent’s mesothelioma ‘may’ have resulted from [her husband’s] employment.” While the trial court did err in admitting Plaintiff’s testimony that one of decedent’s treating doctors told her that decedent’s mesothelioma was “from asbestos,” this error would not have caused an unjust result as the testimony “did not specifically reference Ford or [her husband’s] employment, and was merely in accordance with the general understanding . . . that asbestos caused mesothelioma.” Thus, the Appeals Court affirmed the final judgment.    

Read the full decision here.