Coogan v. Borg-Warner Morse TEC Inc.

Decision Date08 July 2021
Docket NumberNO. 98296-1,98296-1
Citation490 P.3d 200,197 Wash.2d 790
Parties Gerri S. COOGAN, the spouse of Jerry D. Coogan, deceased, and James P. Spurgetis, solely in his capacity as the Personal Representative of the Estate of Jerry D. Coogan, Deceased, Petitioners, v. BORG-WARNER MORSE TEC INC., (sued individually and as successor-in-interest to Borg-Warner Corporation); Caterpillar Global Mining, LLC (sued individually and as a successor-in-interest to Bucyrus International f/k/a Bucyrus-Erie Co.); Certainteed Corporation; Dana Companies LLC (sued individually and as successor-in-interest to Victor Gasket Manufacturing Company); Deere & Company (d/b/a John Deere: FMC Corporation (d/b/a Link-Belt Cranes and Heavy Construction Equipment); Formosa Plastics Corporation U.S.A (sued individually and as parent, alter ego and successor-in-interest to J-M Manufacturing Company and to J-M A/C Pipe Corporation); Hollingsworth & Vose Company; Honeywell International, Inc. f/k/a Allied-Signal, Inc. (sued individually and as successor-in-interest to Bendix Corporation); J-M Manufacturing Company, Inc. (sued individually and as parent and alter ego to J-M A/C Pipe Corporation); Kaiser Gypsum Company, Inc. ; Link-Belt Construction Equipment Company, L.P., LLLP; Northwest Dryer & Machinery Co.; Officemax, Incorporated (f/k/a Boise Cascade Corporation); Parker-Hannifin Corporation; Pneumo Abex LLC (sued as successor-in-interest to Abex Corporation ); Saberhagen Holdings, Inc. (sued as successor-in-interest to The Brower Company ); Standart Motor Products, Inc. d/b/a EIS; SPX Corporation (sued individually and as successors-in-interest to United Dominion Industries Limited f/k/a AMCA International Corporation, individually and as successor in interest to Desa Industries Inc. and/or Insley Manufacturing as well as Koehring Company, individually and as successor in interest to Schield Bantam Company); Terex Corporation d/b/a Koehring Company individually and as successor-in-interest to Schield Bantam Company; and Wellons, Inc., Defendants, Genuine Parts Company d/b/a National Automotive Parts Association (a/k/a NAPA), and National Automotive Parts Association, Respondents.
CourtWashington Supreme Court

Brian D. Weinstein, Alexandra Brett Caggiano, Weinstein Caggiano PLLC, 600 University St. Ste. 1620, Seattle, WA, 98101-4106, Lisa W. Shirley, Dean Omar Branham Shirley LLP, Jessica Dean, Dean Omar Branham LLP, 302 N. Market Street, Suite 300, Dallas, TX, 75202, William Joel Rutzick, Schroeter Goldmark & Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, for Petitioners.

Michael Barr King, Timothy Kost Thorson, Jason Wayne Anderson, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Jeanne F. Loftis, Bullivant Houser Bailey PC, 1 Sw Columbia St. Ste. 800, Portland, OR, 97204-4022, Brendan Philip Hanrahan, Zones, LLC, 1102 15th St. Sw. Ste. 102, Auburn, WA, 98001-6524, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw., Third Floor Ste. C, Seattle, WA, 98126-2138, for Respondents.

Matthew Phineas Bergman, Justin Olson, Bergman Draper Oslund Udo, PLLC, 821 2nd Ave. Ste. 2100, Seattle, WA, 98104-1516, for Amicus Curiae on behalf of Violent Crime Victim Services and Child USA.

Weston Dunn, Attorney at Law, 701 5th Ave. Ste. 6800, Seattle, WA, 98104-7066, Evan S. Nadel, Mintz Levin Cohen Ferris, 44 Montgomery Street, 36th Floor, San Francisco, CA, 94104, Aaron R. Fenton, Mintz Levin Cohen Ferris, 44 Montgomery Street, 36th Floor, San Francisco, CA, 94104, for Amicus Curiae on behalf of COAlition for Litigation Justice, Inc.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw. Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Noah Jaffe, Nicoll Black & Feig PLLC, 1325 4th Ave. Ste 1650, Seattle, WA, 98101-2506, for Amicus Curiae on behalf of Wa Defense Trial Lawyers.


¶1 Doy Coogan died of peritoneal mesothelioma after years of asbestos exposure through his automotive repair work and excavation business. A jury unanimously found Genuine Parts Company (GPC) and National Automotive Parts Association (NAPA) liable for Coogan's wrongful death and entered an $81.5 million verdict for his family and estate. GPC and NAPA moved for a new trial or alternatively a remittitur of damages, which the trial court denied.

¶2 The Court of Appeals reversed the trial court in part and vacated the jury's damages award. Though it rejected claims for a new trial premised on alleged misconduct by plaintiff's counsel, it concluded that the trial court erred by excluding one of GPC and NAPA's expert witnesses and that the jury's award was excessive. Specifically, the Court of Appeals rejected the jury's award of noneconomic damages in favor of its own "necessarily ... subjective" determination that the amount of damages was "so excessive that it shock[ed] the court's conscience." Coogan v. Borg-Warner Morse TEC Inc. , No. 51253-0-II, slip op. at 26, 25, 2020 WL 824192 (Wash. Ct. App. Feb. 19, 2020) (unpublished),

¶3 We granted review to address the appropriate standards for reviewing posttrial motions to set aside jury verdicts. While appellate review serves an essential purpose in safeguarding the integrity of the jury process, it must remain limited. Here, the Court of Appeals overstepped its limited role and inappropriately substituted its own judgment for that of the trial court and, most importantly, the jury. Accordingly, we reverse the Court of Appeals and reinstate the jury's verdict in full.


¶4 Coogan spent decades working on cars and repairing the industrial equipment used in his excavation business.

Throughout that time, Coogan purchased brakes, clutches, and other asbestos-containing parts distributed by GPC and sold in local NAPA stores. In 2015, as a result of cumulative exposure to asbestos, Coogan fell gravely ill.

¶5 Coogan was soon diagnosed with malignant mesothelioma in his peritoneum that metastasized to other parts of his body. Tumors developed in his abdomen, diaphragm, and both lungs. The tumors caused fluid to build up in ascites, putting painful pressuring on Coogan's internal organs and making it difficult for him to breathe. To relieve that pressure, doctors had to drain fluid out of Coogan's abdomen every week. Eventually, they had to place a catheter in Coogan's chest to drain fluid from his lungs even more frequently. Coogan's tumors also obstructed his bowels, leading to anorexia and malnutrition. Coogan's body began to deteriorate from a lack of nutrients. He developed open wounds on his body. His lungs collapsed. His kidneys failed. Unable to eat, drink, or breathe without pain, Coogan died six months after he first sought medical attention. He was 67 years old.

¶6 Coogan's widow, daughters, and estate sued GPC, NAPA, and several other entities for their role in causing Coogan's premature death. Every defendant except GPC and NAPA was dismissed by the trial court or settled the claims against them. After a 12 week trial, the jury unanimously found GPC and NAPA were liable for Coogan's death and entered an $81.5 million verdict against them. That damages verdict is made up of four parts: $30 million for Coogan's pain and suffering, $30 million to compensate Coogan's widow for her loss of consortium, $20 million to compensate Coogan's daughters for their loss of consortium, and $1.5 million for the loss of services Coogan would have provided to his family had he survived.

¶7 GPC and NAPA moved for the trial court to set aside the jury's verdict and grant a new trial on liability and damages under CR 59(a) or, alternatively, to enter a remittitur of damages under RCW 4.76.030. They argued that the trial court erroneously excluded the testimony of a medical expert and that the sizable verdict was excessive and the result of passion or prejudice brought on by Coogan's attorney's alleged misconduct. The trial court denied that motion, finding GPC and NAPA effectively went "through [the] record and pull[ed] out this question and that one and str[u]ng together an argument that looks like there was some prejudice" where none existed. Verbatim Tr. of Proceedings (VTP) (Dec. 1, 2017) at 56. The trial court also found GPC and NAPA's arguments that the damages award was excessive contradicted this court's precedent and "the enormous deference our Appellate Courts and our constitution give[ ] to the weight of the jury's verdict." VTP (Dec. 1, 2017) at 58-59.

¶8 GPC and NAPA timely appealed from the denial of their new trial motion.1 While their appeal was pending, GPC and NAPA moved for relief from judgment under CR 60 on the basis that the Coogan family misrepresented the quality of Coogan's relationship with his widow and daughters. The trial court denied that motion, so GPC and NAPA amended their appeal to challenge that ruling as well.

¶9 In an unpublished opinion, the Court of Appeals affirmed the jury's verdict on liability but set aside the damages award. The court first determined the trial court abused its discretion by excluding the expert testimony of Dr. Gary Schuster, who would have testified that Coogan had a history of heavy alcohol use and the state of his liver suggested he may have had advanced cirrhosis that could have reduced his life expectancy to only 5 years. Because the jury's damages award to Coogan's widow and daughters for their loss of consortium and services was based in part on actuarial evidence that Coogan would have likely lived for 15 more years but for his mesothelioma, the Court of Appeals reversed that award. Next, the Court of Appeals considered the jury's award for Coogan's pain and suffering and determined, "[A]t first blush, that the pain and suffering verdict [rendered by the jury] here is...

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