Coogan v. Borg-Warner Morse Tec Inc.
| Decision Date | 19 February 2020 |
| Docket Number | 51253-0-II |
| Court | Washington Court of Appeals |
| 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, Respondents, 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); STANDARD MOTOR PRODUCTS, INC. d/b/a EIS; SPX CORPORATION (sued individually and as successor-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, Appellants. |
UNPUBLISHED OPINION
Order Filed Date April 7, 2020
Appellants Genuine Parts Company and National Automotive Parts Association request this court to reconsider its February 19 2020 decision to correct two errors. After consideration, we grant Appellant's motion and amend the opinion in part as follows:
We do not amend any other portion of the opinion or the result. Accordingly, it is
SO ORDERED.
Genuine Parts Company (GPC) and National Automotive Parts Association (NAPA) appeal the trial court's order denying their motion for a new trial under CR 59 in a wrongful death action arising from Jerry "Doy" Coogan's death from peritoneal mesothelioma, a disease caused by exposure to asbestos. Doy [1] died less than six months after he first saw a doctor for symptoms and less than three months after he was diagnosed. Doy's estate, his wife Gerri Sue Coogan, and his adult daughters Roxana Coogan and Raquel Coogan Baxter (collectively the Coogans) filed suit against GPC, NAPA, and several other entities associated with the manufacture, distribution, and sale of products containing asbestos.
GPC and NAPA were the only defendants remaining after all the other defendants settled or were dismissed. After a lengthy trial the jury found both GPC and NAPA liable for Doy's death. The jury entered an $81.5 million verdict, which consisted of $30 million to Doy's estate for his pain and suffering $30 million to Doy's wife Sue for loss of marital consortium, $10 million each to Roxana and Raquel for their damages, and $1.5 million for the loss of Doy's services.
We reverse different portions of the damages verdict on independent grounds. First, we hold that the trial court erred in excluding the testimony of a medical expert who would have testified that Doy had stage 3 liver cirrhosis that likely would have shortened Doy's life expectancy to five years instead of 15 years. Therefore, a new trial is required on the loss of consortium and loss of services claims, which directly relate to Doy's life expectancy. Second, we hold (with one judge dissenting) that the $30 million verdict in favor of Doy's estate is so excessive that it shocks the court's conscience and therefore a new trial on the estate's claim is required under CR 59(a)(5).
We affirm the liability verdict against both GPC and NAPA. First, we hold (with one judge dissenting) that the trial court did not err in concluding that Doy's attorney did not commit misconduct in the presentation of evidence and during closing argument. Second, we hold that the trial court did not err in excluding evidence that five people who worked at the Spokane plant of Wagstaff, Inc. at roughly the same time as Doy had contracted asbestos-related diseases. Third we hold that the jury reasonably could infer from the evidence that NAPA was the manufacturer, distributor, or seller of asbestos-containing products.
Accordingly, we reverse in part, affirm in part, and remand for a new trial on damages only.
Doy was 67 years old when he died in 2015. He and Sue were married in 2011, but they had lived together since 1995. Doy had two daughters from an earlier marriage: Roxana, who was 46 years old when Doy died; and Raquel, who was 44 years old when Doy died. Sue also had an adult daughter from a prior relationship, Kelly Marx.
GPC distributed automotive parts, including brakes and clutches beginning in the 1920s. GPC's Rayloc division also remanufactured brakes and clutches using parts supplied by others. These products contained asbestos. GPC is a primary NAPA distributor and has owned and operated a NAPA auto parts distribution center in Spokane since the mid-1960s.
NAPA is a membership trade association. NAPA members own and operate retail auto parts stores and parts distribution centers, which are licensed to use the NAPA logo and trademark. Parts manufacturers also are licensed to use the NAPA logo and trademark on parts supplied to NAPA members. But NAPA claims that it does not own or operate any stores and does not sell or distribute any products.
Over the course of Doy's working and personal life, he was exposed to asbestos from multiple sources. These asbestos exposures included from GPC/Rayloc brakes and clutches and American Brakeblok brakes purchased from NAPA auto parts stores. Both types of brakes were branded with the NAPA logo. Doy's brother Jay Coogan operated a NAPA store in Colville for several years, and Doy purchased Rayloc parts there.
Doy presented to a doctor in January 2015 with a swollen, distended belly and resulting pain. No evidence was presented regarding when his symptoms started. Doy was diagnosed with peritoneal mesothelioma in April 2015. Peritoneal mesothelioma is a cancer that occurs in the lining of the abdominal cavity and is an asbestos-related disease. Doy's health rapidly declined. He died on July 1, 2015.
The Coogans filed a wrongful death lawsuit against GPC, NAPA, and many other defendants alleging that Doy developed mesothelioma because of his exposure to asbestos-containing products and equipment manufactured, sold and/or distributed by the defendants. The Coogans settled their claims with some of these defendants before trial, some defendants were dismissed, and others settled during trial. GPC and NAPA were the only defendants remaining in the case when the jury rendered its verdict.
At trial, the jury heard evidence that Doy had developed malignant peritoneal mesothelioma as a result of exposure to asbestos. His decline and resulting death occurred rapidly, less than six months after first seeing a doctor for symptoms and less than three months after being diagnosed with peritoneal mesothelioma.
Doy's mesothelioma initially developed in the peritoneum (the membrane which lines the abdominal cavity) and eventually caused tumors in his abdomen, bowels, diaphragm, and lungs. Doy developed severe ascites (fluid build-up) in his abdomen, which resulted in the painful expansion of the belly as fluid pressed against organs and skin. This fluid build-up necessitated regular drainage from his abdomen. A catheter was placed in his chest to drain the fluid building up around Doy's lungs. Doy eventually received three rounds of chemotherapy.
Doy experienced dyspnea, or "air hunger," a sensation of breathlessness caused by the fluid build-up around his lungs. He suffered pain-related insomnia, constipation, dehydration, and kidney failure. Doy's condition also resulted in malnutrition and cachexia, which is the weakness and wasting of the body due to severe chronic illness. His conditions required narcotic pain medicine that affected his cognitive awareness.
Roxana testified that Doy never let his family see him in pain and died with much dignity. But she stated that "I know he knew he was going to die." 18 Report of Proceedings (RP) at 79-80.
The trial court excluded evidence in two areas. First, the court excluded the testimony of Dr. Gary Schuster, GPC's expert, that Doy had preexisting stage 3 cirrhosis of the liver. Dr. Schuster presented an opinion that stage 3 cirrhosis reduced Doy's life expectancy to five years rather than the 15 years indicated by the life expectancy tables. The trial court ruled that the expert testimony was...
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