Plaintiff’s Misconduct of Withholding Exposure Information of Decedent Leads to Upholding of New Trial for Premise Owner

Court of Appeals of Oregon, August 26, 2020

The decedent, Robert Golik, died of mesothelioma allegedly as a result of his exposure to asbestos. The decedent passed away prior to the lawsuit being filed, and was therefore, never deposed regarding his work history or exposure to asbestos. At trial, The plaintiff, Alice Golik, presented evidence that the decedent was an employee of Armstrong Contracting and Supply Corporation (AC&S) and worked as an insulator helper at the defendant, Georgia Pacific Consumer Products, LLC’s (GPCP) paper mill for a few weeks during 1965.

Without direct testimony from the decedent, GPCP was unsuccessful in trying to prove the decedent’s alternate exposures to asbestos.

To that end, during discovery, the defendants requested bankruptcy claim forms, supporting documents and any information that was submitted to the bankruptcy trusts on behalf of the decedent. The plaintiff produced the claim forms that were submitted to the trusts. She also produced a comprehensive work-history affidavit, which had been submitted to some of the trusts in support of the claims. The work-history affidavit summarized the decedent’s asbestos-related work history and detailed several of his exposures to asbestos. The work-history affidavit, in addition to attesting to many other exposures, stated that the decedent had worked, and been exposed to asbestos, on various defendants’ premises, including at defendant’s mill.

At trial, GPCP decided not to present the work-history affidavit that detailed possible alternate exposures since it also detailed exposures from GPCP’s mill. Based upon the evidence presented at trial, the jury found GPCP liable.

After trial, GPCP requested a hearing at which the court would decide whether the plaintiff’s previous settlements with the bankruptcy trusts had been reasonable. Under Washington law, once the court made that determination, it would reduce the verdict by the amount of the previous settlements.
To prepare for that hearing, GPCP sought additional information about the bankruptcy trust settlements. When GPCP received the documents directly from the bankruptcy trusts, it discovered that, during pretrial discovery, the plaintiff had not turned over all the supporting documents submitted in support of the claim forms. Among the undisclosed documents was an affidavit in which the decedent described his work in the merchant marine.
Upon learning of the new exposure and supporting documents, GPCP moved for a new trial under ORCP 64 B(2) and (4), arguing that the plaintiff’s failure to turn over the documents, including the merchant marine affidavit, was misconduct by the prevailing party, under ORCP 64 B(2), that materially affected GPCP’s substantial rights.

The plaintiff argued that the failure to provide the affidavit during discovery was an inadvertent oversight, not rising to the level of misconduct under ORCP 64 B(2). The court did not agree, finding that the plaintiff deliberately withheld discovery. The court further agreed that the plaintiff’s misconduct materially affected GPCP’s substantial rights since the affidavit included information regarding the decedent’s alternate exposures to asbestos that more than likely would have been presented by GPCP at trial. Therefore, the plaintiff’s misconduct materially impaired GPCP’s ability to present its case to the jury.

Here, the appellate court agreed with the trial court’s decision to order a new trial and vacate the judgment.