Autopsy Ordered Over Plaintiffs’ Objections in Mesothelioma Case U.S. District Court for the Western District of Washington, October 23, 2017
WASHINGTON — Plaintiffs Leslie Jack and her late-husband Patrick Jack brought suit against numerous defendants, including Genuine Parts Company (GPC), alleging that exposure to their products caused Mr. Jack’s mesothelioma. Mr. Jack passed away on October 15, 2017 and defense counsel was notified on October 17, 2017. Counsel for GPC renewed a prior request for an autopsy on the same day. The plaintiffs’ counsel denied the request and informed defense counsel that Mr. Jack’s body would be cremated on October 19, 2017.
Counsel for GPC, joined by multiple other defendants, filed an emergency motion pursuant to Federal Rule of Civil Procedure 35 to compel Mrs. Jack to make the remains of Mr. Jack available for an autopsy and to preserve the lungs for later digestion studies. The court issued a TRO preserving the status quo. On October 19, the court held a hearing on the merits and granted a continuance until the parties submitted supplemental briefing.
Federal Rule of Civil Procedure 35 requires the movant to demonstrate that (1) the matter of the party’s physical condition is “in controversy” and (2) there is “good cause” for the examination. The requirements are met “only when the movant produces sufficient information about the particular decedent.” When applied to autopsies, the movant must show that “an autopsy is the most medically reasonable method, considering the reasonable medical alternatives, for determining decedent’s physical condition at death.”
The court determined that since the cause of death forms the crux of the suit, the physical condition is in controversy.
The parties disagreed about whether the available medical alternatives — Mr. Jack’s clinical history, occupational history, and existing tissue samples—were sufficient. The court opined that given Mr. Jack’s clinical history, which included a heart attack in May of 2017, an autopsy might reveal potential co-morbidities. Second, an autopsy would provide lung tissue to perform a tissue digestion and burden analysis which would ascertain the amount and types of asbestos fibers present in Mr. Jack’s lungs. In an asbestos case, this information is particularly important because the defendants allegedly have different types of asbestos in their products. Lastly, while “the court does not take lightly Mrs. Jack’s significant moral objections to having an autopsy done on her husband,” they do not outweigh the defendants’ showing that an autopsy is the most medically reasonable option as it “can reveal information that is both pertinent to the case and unobtainable through the currently available medical alternatives.”
Per Rule 35(a)(2), the court must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. The court identified a neutral, third-party examiner and ordered the costs be paid by GPC.