Clayton v. Air & Liquid Systems Corp. (2019)

Our plain-English summary of Clayton v. Air & Liquid Systems Corp. (U.S. District Court, Western District of Washington, October 28, 2019).

William R. Clayton and his wife Jill D. Clayton sued Air & Liquid Systems Corp., Syd Carpenter Marine Contractor Inc., Vigor Shipyards Inc. and other defendants. Mr. Clayton died on May 28, 2019, five days before discovery closed. Mrs. Clayton, as executor, later filed a corrected amended complaint adding a wrongful death claim. She said his death certificate listed mesothelioma as the cause of death. The opinion does not describe where or how he was exposed to asbestos. Syd Carpenter asked the court to reopen discovery on the cause of death, saying death certificate errors are common. Mrs. Clayton opposed, arguing Syd Carpenter had been delaying. The court found good cause to modify the schedule, because discovery had closed before a wrongful death claim was in the case and Syd Carpenter had no notice it would need that discovery. It extended the expert disclosure deadline to December 16, 2019 and the discovery deadline to January 31, 2020, allowing only expert depositions, medical records from April 1 to May 28, 2019, and depositions of Dr. Erina Sugai and his primary care or hospice providers.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Washington
• Decided: October 28, 2019
• Docket: Case No. C18-0748JLR
• Stage: Discovery or evidence ruling
• State: Washington

Outcome. The court granted defendant Syd Carpenter's motion to extend the discovery and expert deadlines for limited discovery on William Clayton's cause of death, over plaintiff Jill Clayton's opposition.

What the court held. A scheduling order may be modified for good cause; good cause existed because discovery closed before a wrongful death claim was added to the case, so the defendant had no notice it would need discovery on cause of death.

Issues decided: Causation, Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• William R. Clayton: mesothelioma; died

The defendants

• Syd Carpenter, Marine Contractor, Inc. (contractor)
• Air & Liquid Systems Corp.
• Vigor Shipyards Inc

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Clayton v. Air & Liquid Systems Corporation (June 26, 2018). The federal district court denied William and Jill Clayton's motion for an expedited December 2018 trial against the defendants and said it would enter its standard scheduling order.
• Clayton v. Air & Liquid Systems Corporation (July 20, 2018). The court granted Saberhagen's motion for judgment on the pleadings because the Claytons sued more than three years after Saberhagen dissolved, denied their Rule 56(d) discovery request, and denied their motion for relief from a deadline as moot.
• Clayton v. Air & Liquid Systems Corporation (August 9, 2019). The court granted Syd Carpenter's motion for partial summary judgment on the strict liability, conspiracy and breach of warranty claims, denied it on unspecified miscellaneous claims, and granted the Claytons' motion against Syd Carpenter's government contractor defense.
• Clayton v. Air & Liquid Systems Corporation (February 13, 2020). The court denied plaintiff Jill Clayton's motion to exclude defendant Syd Carpenter's industrial hygienist's dose reconstruction opinions, and denied as moot the part of the motion aimed at Vigor's expert because Vigor had settled.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM R. CLAYTON and JILL D. CLAYTON, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP., etal., Defendants.

Case No. C18-0748JLR.

October 28, 2019.

United States District Court, W.D. Washington, Seattle.

Jill D. Clayton, as Executor of the William Richard Clayton Plaintiff, represented by Glenn S. Draper, BERGMAN DRAPER OSLUND.

Jill D. Clayton, as Executor of the estate of William Richard Clayton, Plaintiff, represented by Matthew Phineas Bergman, BERGMAN DRAPER OSLUND.

Jill D. Clayton, as Executor of the William Richard Clayton, Plaintiff, represented by Ruby K. Aliment, BERGMAN DRAPER OSLUND & Vanessa Firnhaber Oslund, BERGMAN DRAPER OSLUND.

Syd Carpenter Marine Contractor Inc, Defendant, represented by J. Scott Wood, FOLEY & MANSFIELD & R. Dirk Bernhardt, FOLEY & MANSFIELD.

Vigor Shipyards Inc, a subsidiary of Vigor Shipyards Inc, Defendant, represented by D. David Steele, YARON & ASSOCIATES, pro hac vice, George D. Yaron, YARON & ASSOCIATES, pro hac vice & Walter Eugene Barton, KARR TUTTLE CAMPBELL.

Syd Carpenter Marine Contractor Inc, Consol Defendant, represented by Diane Catherine Babbitt, FOLEY & MANSFIELD, J. Scott Wood, FOLEY & MANSFIELD, R. Dirk Bernhardt, FOLEY & MANSFIELD, Zackary A. Paal, FOLEY & MANSFIELD & Brian Bernard Smith, FOLEY & MANSFIELD.

ORDER GRANTING DEFENDANT'S MOTION FOR LIMITED DISCOVERY ON

CAUSE OF DEATH

JAMES L. ROBART, District Judge.

Before the court is Defendant Syd Carpenter, Marine Contractor, Inc.'s ("Syd Carpenter") motion to extend the discovery deadline and to allow limited discovery into Plaintiff William R. Clayton's cause of death. (Mot. (Dkt. # 150).) Plaintiff Jill D. Clayton opposes the motion. (Resp. (Dkt. # 151).) Syd Carpenter filed a reply. (Reply (Dkt. # 154).) The court has considered the motion, the submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully informed, the court GRANTS Syd Carpenter's motion, subject to the limitations set forth below.

On August 19, 2019, the court granted in part Syd Carpenter's motion to continue the trial in this case. (See 08/19/19 Order (Dkt. # 148); see also Mot. to Continue (Dkt. # 139); Am. Sched. Order (Dkt. # 149).) The court ordered that "[a]ll pretrial deadlines that have passed will not be rescheduled except that the court allows Syd Carpenter to conduct limited discovery on Mrs. Clayton and the two Clayton heirs on the issue of damages." (08/19/2019 Order at 2.) The court further stated that " [i]f a party wishes to conduct limited discovery on the issue of Mr. Clayton's cause of death, the court will entertain a motion on that issue." (Id. at 2-3.)

Syd Carpenter now seeks limited additional discovery on Mr. Clayton's cause of death. (See Mot. at 1.) Syd Carpenter asserts that this additional discovery is necessary because "Mr. Clayton passed away on May 28, 2019, or five days before discovery closed and approximately two months after expert disclosures [were due]." (Id. at 1; see also Sched. Order (Dkt. # 49) at 1 (setting the discovery deadline to June 3, 2019).) Syd Carpenter argues that because the plaintiffs filed their corrected amended complaint alleges a wrongful death cause of action on August 15, 2019, after the close of discovery,

additional discovery is necessary to evaluate "[t]he nature of the damages and claims have changed in light of Mr. Clayton's passing." (See Mot. at 2-3 (quoting Mot. to Continue at 1).)

Mrs. Clayton responds that there is not good cause for additional discovery because "Syd Carpenter has demonstrated time and time again that delay, not diligence, is its primary motive" and because Syd Carpenter "seeks unlimited discovery." (See Resp. at 6-7). Mrs. Clayton also appears to suggest that no discovery on cause of death is necessary because "Mr. Clayton's death certificate unequivocally listed mesothelioma as his cause of death." (See id. at 2.) In reply, Syd Carpenter explains that it seeks only limited discovery, and argues that additional discovery on cause of death is necessary to obtain evidence on causation and damages—evidence that should not be limited solely to the death certificate. (See Reply at 2 ("Death certification errors are common.") (internal quotation omitted).)

"A schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P 16(b)(4). The court finds that good cause exists to modify the court's scheduling order and permit limited discovery on Mr. Clayton's cause of death. The discovery deadline closed before a wrongful death claim was at issue in this lawsuit. Regardless of whether Syd Carpenter was diligent in pursuing other discovery before the discovery deadline, Syd Carpenter had no notice that it would need discovery on a claim that was not in the case at that time.

The court ORDERS that the current case schedule (see Am. Sched. Order) is amended as follows:

The deadline to disclose expert testimony is extended to December 16, 2019, for the sole purpose of allowing the parties to disclose expert reports (or amendments to current expert reports) on Mr. Clayton's cause of death. The deadline to complete discovery is extended to January 31, 2020, for the following limited purposes only:

• The parties may depose any experts who disclose opinions on Mr. Clayton's cause of death, limited in scope to Mr. Clayton's cause of death.

• The parties may obtain authorization to collect Mr. Clayton's medical records from April 1, 2019 through May 28, 2019, the date of his death.

• The parties may depose Dr. Erina Sugai, M.D., on the sole issue of Mr. Clayton's cause of death.

• The parties may depose individuals who served at the time of Mr. Clayton's death as his primary care or hospice medical providers. Such depositions shall be limited in scope to Mr. Clayton's cause of death. Motions related to this additional discovery must be filed by January 10, 2020. Motions challenging expert witness testimony on Mr. Clayton's cause of death must be filed by February 17, 2020. All other case deadlines as set forth in the court's modified scheduling order (Am. Sched. Order) remain the same.

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites