Carroll v. Akebono Brake Corp.

• Decision Date: 01 August 2022
• Docket Number: 82245-4-I
• Parties: Marjorie CARROLL, individually and as Personal Representative of the Estate of Lawrence W. Carroll, Deceased, Appellant/Cross-Respondent, v. AKEBONO BRAKE CORPORATION; Akebono Brake Industry, Ltd.; Honeywell International, Inc., individually and as successor-in-interest to Bendix Corporation ; Nissan Motor Company Ltd.; Nissan North America, Inc.; Olympic Brake Supply, Respondents/Cross-Appellants, Borgwarner Morse Tec, LLC ; Clifford Performance; Cooper Industries, LLC, individually and as successor-in-interest to McGraw Edison Company; Dana Companies, LLC, f/k/a/ Dana Corporation; Exedy Corporation of Japan, individually and as successor-in-interest to Daikin Clutch Corporation ; Exedy Globalparts Corporation, as a wholly-owned subsidiary of the Exedy Corporation of Japan, and as successor-in-interest to Daikin Clutch Corporation; Genuine Parts Company; Hennessy Industries, Inc.; Jack Clifford Performance Products Inc.; Luk Clutch Systems LLC; Metropolitan Life Insurance Company; Six Robblees’ Inc. ; and Union Carbide Corporation, Defendants.
• Court: Washington Court of Appeals

514 P.3d 720

Marjorie CARROLL, individually and as Personal Representative of the Estate of Lawrence W. Carroll, Deceased, Appellant/Cross-Respondent,

v.AKEBONO BRAKE CORPORATION; Akebono Brake Industry, Ltd.; Honeywell International, Inc., individually and as successor-in-interest to Bendix Corporation ; Nissan Motor Company Ltd.; Nissan North America, Inc.; Olympic Brake Supply, Respondents/Cross-Appellants,Borgwarner Morse Tec, LLC ; Clifford Performance; Cooper Industries, LLC, individually and as successor-in-interest to McGraw Edison Company; Dana Companies, LLC, f/k/a/ Dana Corporation; Exedy Corporation of Japan, individually and as successor-in-interest to Daikin Clutch Corporation ; Exedy Globalparts Corporation, as a wholly-owned subsidiary of the Exedy Corporation of Japan, and as successor-in-interest to Daikin Clutch Corporation; Genuine Parts Company; Hennessy Industries, Inc.; Jack Clifford Performance Products Inc.; Luk Clutch Systems LLC; Metropolitan Life Insurance Company; Six Robblees’ Inc. ; and Union Carbide Corporation, Defendants.

No. 82245-4-I

Court of Appeals of Washington, Division 1.

FILED August 1, 2022

Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, Jeffrey Paul Downer, Lee Smart PS Inc., 701 Pike St. Ste. 1800, James Minha Chong, Attorney at Law, 701 Pike St., 1800 One Convention Place, Seattle, WA, 98101, for Appellant/Cross-Respondent.

Claude F. Bosworth, Kevin Robert Clonts, Rizzo Mattingly Bosworth PC, 1300 Sw 6th Ave. Ste. 330, Portland, OR, 97201-3530, Rachel Tallon Reynolds, Lewis Brisbois Bisgaard & Smith LLP, 1111 3rd Ave. Ste. 2700, Seattle, WA, 98101-3224, George S. Pitcher, Lewis Brisbois Bisgaard & Smith LLP, 888 Sw 5th Ave. Ste. 900, Portland, OR, 97204-2023, Jose Edward Gaitan, John Earl Lenker, John Earl Lenker, The Gaitan Group PLLC, 411 University St. Ste. 1200, Seattle, WA, 98101-2519, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, Andrew Chen, Perkins Coie, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Diane Catherine Babbitt, Lane Powell, P.O. Box 91302, Seattle, WA, 98111, J Scott Wood, Sinars Slowikowski Tomaska LLC, 1000 2nd Ave. Ste. 1950, Seattle, WA, 98104-3616, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Dwyer, J.

¶1 Marjorie Carroll appeals from the trial court's order granting the motion filed by Nissan Motor Company Ltd. and Nissan North America, Inc. (collectively Nissan) to strike Carroll's complaint. In its motion to strike the complaint, Nissan asserted that Carroll and her counsel engaged in numerous willful and deliberate discovery violations that substantially prejudiced Nissan's ability to prepare for trial. On appeal, Carroll contends that the trial court abused its discretion by striking the complaint because none of the alleged violations met all of the standards required for a trial court to impose extreme sanctions under CR 37(b). Additionally, Carroll asserts that the trial court failed to consider as a lesser sanction an adverse inference jury instruction that would have cured any prejudice resulting from the alleged discovery violations. We agree with Carroll in both of these respects. Accordingly, we reverse the order striking Carroll's complaint and remand the cause for further proceedings.

¶2 On cross appeal, Nissan asserts that the trial court erred by limiting a monetary sanction that was imposed on one of Carroll's attorneys, Thomas Owens, to $1,000. Because the trial court did not err in this respect, we affirm the trial court's order sanctioning Owens.

I

¶3 On October 19, 2015, a physician diagnosed Marjorie Carroll's husband, Lawrence Carroll, as being afflicted by mesothelioma

. Lawrence¹ died on April 18, 2016. He was 82 years old.

¶4 On the day of Lawrence's death, Carroll signed a form authorizing Regional Pathology and Autopsy Services, Inc. (RPAS) to conduct an autopsy of Lawrence. The authorization form provided that the reason for the autopsy was "Disease Litigation." The autopsy was paid for with a credit card belonging to one of Carroll's attorneys, Erik Karst. Karst is licensed to practice law in Texas and Minnesota.

¶5 The autopsy authorization form provided:

I understand and agree that after a period of six months immediately following the transmittal of the autopsy final report, any remaining tissue samples, fluids, and/or devices, will, without further notice, be made available to medical researchers instead of being destroyed. I understand that if retained, toxicology specimens and/or samples for DNA/molecular studies shall be stored for six months and then shall be destroyed without further notice. I understand that glass slides and histology blocks shall be retained indefinitely.

¶6 On April 21, 2016, three days after Lawrence's death, the autopsy was performed. A report of the autopsy, which was dated June 25, 2016, stated that Lawrence's cause of death was "MALIGNANT PLEURAL MESOTHELIOMA

WITH METASTASIS." The report did not specify the exact type or types of asbestos fibers that were present in Lawrence's body. Subsequently, Dana Carroll, Carroll's daughter, sent the autopsy report to Karst via an e-mail message dated July 19, 2016.

¶7 The autopsy report stated that various forms of tissue samples were retained by RPAS following the autopsy. The trial court later found that "RPAS retained 35 slides of the partial autopsy but, six months later, pursuant to its policy gave all remaining unclaimed tissue and fluid to medical research."² Finding of Fact 6 (emphasis added).

¶8 The trial court found that Nissan "had located the autopsy report on their own in 2019."³ Finding of Fact 8. A declaration of one of Nissan's attorneys, Virginia Leeper, asserted that RPAS "ceased operations on April 15, 2019." Leeper stated that she "was able to locate and obtain from Illume Pathology ... documents and 35 slides."⁴ Leeper additionally stated that "[t]here were no autopsy photographs, no tissue blocks, no wet lung

tissue nor other organs with the materials" that she obtained. According to Leeper, she was "not ... able to determine if Plaintiff's counsel or anyone else has possession of autopsy specimens or tissue samples, or if they have all been destroyed." On appeal, the parties agree that these tissue samples were likely destroyed.⁵ However, there is no indication in the record as to when, exactly, any unclaimed tissue samples or retained histology blocks were destroyed by RPAS, Illume Pathology, or some unidentified third party.

¶9 On April 28, 2016, Lawrence's body was cremated. That same day, Lawrence's death certificate was issued. The death certificate erroneously stated that no autopsy had been performed.

¶10 Between October 2017 and March 2018, Karst, on behalf of Carroll, filed claims against five bankruptcy court trusts. The trial court herein found that, in those bankruptcy trust proceedings, Carroll "claimed Lawrence Carroll's mesothelioma

was caused by his exposure to asbestos as a child, from his father's shipyard work clothes, while hugging and playing with his father and helping his mother launder his father's work clothes." Finding of Fact 11.

¶11 On April 10, 2018, Carroll, individually and as the personal representative of her husband's estate, filed a complaint against Nissan Motor Company Ltd., Nissan North America (collectively Nissan), and various other defendants in King County Superior Court. This complaint provided that "Plaintiff claims liability based upon the theories of product liability, including strict product liability under Section 402A of the Restatement (Second) of Torts, and negligence." According to the complaint, Lawrence worked from 1971 to 1989 as a service and parts manager at several vehicle dealerships that were owned and operated by Nissan. The complaint alleged that Lawrence was exposed to asbestos while working at these dealerships. Thomas Owens, a member of the Washington bar, signed the complaint. Karst was listed on the complaint as "of counsel."⁶

¶12 King County Superior Court's 2011 revised consolidated pretrial style order applicable to asbestos litigation required "[p]laintiffs’ counsel" to "execute a stipulation for the release of employment related records," including "social security records," to "counsel for all parties within 90 days of filing the Complaint." On June 11, 2018, prior to Nissan being served with a summons and 62 days after the complaint was filed, Karst's paralegal sent an e-mail message to the attorneys for all defendants who, at that time, had filed a notice of appearance. This e-mail message contained medical and billing records. Although this e-mail message stated that "updated authorizations" were also attached, such authorizations were, according to a declaration of Karst's paralegal, inadvertently not attached to this message.

¶13 On September 28, 2018, Carroll's attorneys submitted answers to style interrogatories that were required to be answered under King County Superior Court's 2018 second revised consolidated pretrial style order. Carroll subsequently verified with her signature the veracity of the answers to these style interrogatories.⁷ Interrogatory 20 requested that Carroll attach a copy of any death certificate to her response. Accordingly, Carroll attached a true copy of Lawrence's death certificate. Next, interrogatory 21 requested that Carroll attach a copy of any autopsy report. Carroll answered, "Not Applicable." Additionally, interrogatory 22 requested that Carroll provide information regarding any specimens or tissue samples taken or retained from any autopsy. Carroll again answered, "Not Applicable."

¶14 On October 9, 2018, six months after Carroll filed her complaint, Nissan Motor Company Ltd. was finally served with a summons.⁸ This delay in service resulted from Nissan's insistence that it be served according to the dictates of the Hague Convention. Sometime thereafter, both Nissan Motor...