Fox v. Alcoa, Inc. (2005)

Our plain-English summary of Fox v. Alcoa, Inc. (Washington Court of Appeals, December 27, 2005).

Dawna Fox developed cancer in 2003, and initial testing suggested mesothelioma, though no primary tumor was found and she had no symptoms or treatment. She and her husband sued Alcoa, saying she was exposed to asbestos as a child when she helped launder the work clothes her grandfather wore at Alcoa's Wenatchee works. Before trial, Alcoa disobeyed a court order to produce documents and answer interrogatories, and failed to provide a usable privilege log, and the court held it in contempt. The trial court refused to enter a default judgment. It ordered Alcoa to pay copying costs, attorney fees and other expenses, and it offered Fox a continuance, which she declined. At trial the judge refused an adverse inference instruction, and the jury returned a defense verdict. On appeal the Foxes challenged only those sanctions. The Court of Appeals affirmed. It held that Fox had not shown prejudice serious enough to justify default. It also held that she had not shown the withheld material was relevant to her claims, as an adverse inference instruction requires.

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: Washington Court of Appeals, 1st Division
• Decided: December 27, 2005
• Docket: No. 54743-7-I
• Stage: Appeal from judgment after trial
• State: Washington

Outcome. The Court of Appeals affirmed the defense verdict for Alcoa, holding that the trial court did not abuse its discretion in refusing to enter default or give an adverse inference instruction as sanctions for Alcoa's discovery violations, so plaintiffs Dawna and Travis Fox lost.

What the court held. Default is a drastic sanction reserved for willful discovery violations that substantially prejudice the opponent's trial preparation, and the trial court has wide discretion in choosing a sanction. An adverse inference instruction requires a showing that the withheld evidence was relevant to the party's claim.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Dawna M. Fox (family member): mesothelioma

Who	Work	Where	When	Products
Dawna M. Fox	child who helped launder her grandfather's work clothes; dust brought home	Alcoa Wenatchee works, Wenatchee, Washington

The defendants

• Alcoa, Inc. (premises owner)

Amounts in the opinion

• $214,723.86 (other)

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.

DAWNA M. FOX and TRAVIS D. FOX, a married couple, Appellants,

v.

ALCOA, INC., Respondent.

No. 54743-7-I

Filed: December 27, 2005.

The Court of Appeals of Washington, Division One.

Counsel for Appellant(s), Matthew Phineas Bergman, Bergman & Frockt, 705 2nd Ave Ste 1601, Seattle, WA 98104-1711. David S Frockt, Bergman & Frockt PLLC, 705 2nd Ave Ste 1601, Seattle, WA 98104-1711.

Leann McDonald, Bergman & Frockt, 705 2nd Ave Ste 1601, Seattle, WA 98104-1711.

Meg Pageler, Attorney at Law, 1709 NE 90th St, Seattle, WA 98115-3249.

Counsel for Respondent(s), Lisa Marie Marchese, Stafford Frey Cooper, 601 Union St Ste 3100, Seattle, WA 98101-1374. Kim M Tran, Stafford Frey Cooper, 601 Union St Ste 3100, Seattle, WA 98101-1374.

ELLINGTON, J.

Dawna Fox developed cancer in 2003. Initial testing suggested a diagnosis of mesothelioma, an asbestos related cancer. Fox sued Alcoa, Inc., believing the cancer was caused by secondary exposure to asbestos from the Alcoa Wenatchee plant where her grandfather worked. Alcoa violated the court's discovery orders and was held in contempt. Fox contends that as a sanction, the court should have granted a default judgment or, at the least, have given an adverse inference jury instruction. Because the trial court did not abuse its discretion in setting the sanctions, we affirm.

BACKGROUND

As a child, Dawna Fox helped her grandmother launder the clothes her grandfather wore to his job at the Alcoa Wenatchee works. Asbestos was present at the Wenatchee site, and Fox remembers light gray dust coming off her grandfather's clothes when they were laundered.

In the summer of 2003, Fox discovered a hard lump in her neck, which tests showed to be cancer. The initial pathology report concluded that metastatic adenocarcimona was the most likely diagnosis, but that mesothelioma, a terminal cancer related to asbestos exposure, could not be ruled out.

The lump was removed. Because Fox was unusually young for a mesothelioma diagnosis and because no primary tumor had been located, a tissue sample was sent to the Mayo Clinic for a second opinion. The Mayo physicians concluded that the sample was most consistent with mesothelioma but that the case was `highly unusual,' and recommended the diagnosis be correlated with clinical and radiographic studies. Clerk's Papers at 14. Since then, X-rays and CT scans have located no primary tumor, Fox has exhibited no symptoms, and she has undergone no treatment.

Fox filed this action against Alcoa in October 2003. The matter was assigned to Judge Sharon Armstrong for pretrial supervision. Fox requested an expedited trial schedule on grounds that she was suffering from a terminal illness. The court granted her request, set the discovery deadline for April 12, 2004, and scheduled trial for May 17, 2004.

Fox served 42 interrogatories on January 20, 2004. On February 18, Alcoa responded to 23 interrogatories by stating that the information requested could be found in documents that would be available for Fox's counsel to review at a mutually agreed time. The following week, Alcoa advised Fox that all the relevant documents were located in Houston, Texas, and because they comprised 300 boxes, it was not feasible to transport the documents to Seattle for review.

Fox moved to compel production in Seattle. The court granted the motion, noting that `Alcoa, as a defendant experienced in asbestos matters, has been required to previously collect the types of information sought by {Fox}.' Clerk's Papers at 336. The court ordered Alcoa to produce the documents and to provide comprehensive answers to Fox's interrogatories by April 16, 2004.

Alcoa then informed Fox that the documents actually comprised 1,500 boxes, and would cost $300,000 to copy. Fox and Alcoa negotiated a paring down in the scope of the discovery request, but on April 2, 2004, Alcoa sought reconsideration of the order compelling production, arguing that even with the narrower scope of discovery, reproduction costs would exceed $300,000. Further negotiations between the parties ensued. Finally, the parties signed a stipulation further limiting Fox's requests for production and requiring Alcoa to produce a log of any documents for which privilege would be claimed. On April 13, apparently overwhelmed by thousands of pages of irrelevant documents and duplicates with identical Bates numbers, Fox instructed Alcoa to cease producing documents so Fox could determine the relevance of those already provided.

Alcoa provided neither the privilege log required by the parties' agreement nor the comprehensive answers to interrogatories required by the order to compel.

On April 28, Fox filed a motion for default, contending that Alcoa was in contempt and that default was the only appropriate sanction. Fox also suggested the alternative sanction of an adverse inference jury instruction.

The court found Alcoa in contempt of its March 23 order, and concluded in order to complete discovery, Fox was entitled to a continuance at Alcoa's expense. The court asked counsel whether Fox's medical condition precluded a continuance. Counsel responded that although Fox was unlikely to die in the next month or two, she had a terminal illness and her prognosis was uncertain, and he therefore declined any continuance.

The court ordered Alcoa to produce the privilege log and to revise its interrogatory answers immediately. Upon reviewing Alcoa's submissions in response to this order, the court ruled that Alcoa had intentionally violated the March 23 order, and had ultimately produced a privilege log that was `of no value' because it failed to describe the nature of the documents listed. Clerk's Papers at 1471.

The court found merit in Fox's claims of prejudice from these violations,[1] but also noted that Fox had declined the court's suggestion of a short continuance. The court declined to order default as a sanction, but required Alcoa to reimburse half the copying costs paid to date,[2] pay all additional copying costs, pay the expenses of the motion (attorney fees), and pay any expenses incurred by Fox as a result of Alcoa's discovery violations. The court deferred the question of an adverse inference jury instruction to the trial judge, who could better assess the eventual prejudice resulting from the violations. The following week a jury trial began before Judge Michael Fox. At the close of evidence, Ms. Fox requested an adverse inference instruction, arguing that she was prejudiced by Alcoa's discovery violations in two ways: its failure to reveal the names of the safety officers at the Wenatchee plant until the eve of trial, and its failure to produce a usable privilege log. The court declined to give the instruction. The jury returned a defense verdict.

The only question raised on appeal is whether the judges abused their discretion under CR 26(g)[3] in setting the sanctions for Alcoa's discovery violations. We review such rulings for abuse of discretion. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993). A court abuses its discretion when a ruling is manifestly unreasonable, or discretion is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). In determining what sanctions are appropriate, a trial court is given wide latitude. Fisons, 122 Wn.2d at 355.

ANALYSIS

Default Sanction. Alcoa disregarded both the court's orders and its own stipulation, and does not challenge the court's finding of contempt. It is useful here to reiterate the court's summary of the discovery violations:

{P}laintiffs did not receive discovery that had been ordered/agreed to until days before trial. Furthermore, when Alcoa this week produced a log of privileged documents withheld from production, contrary to the terms

of the discovery requests and accepted practice, the log failed to describe the subject matter of the

documents, rendering it of no value.

The manner in which Alcoa responded to plaintiff's discovery requests resulted in Alcoa sending documents to plaintiffs rather than answering interrogatories when answers were required, and sending multiple copies of documents to plaintiffs, such that copying costs exceeded $100,000 (and were projected to exceed $300,000) causing plaintiffs to cancel the remainder of the production because of the prohibitive cost.

Clerk's Papers at 1471.

Sanctions are mandatory when discovery rules are violated. CR 26(g). In Fisons, the Washington Supreme Court enunciated factors for courts to consider when fashioning an appropriate sanction: the least severe sanction adequate to serve its purpose should be imposed, and the sanction should ensure the wrongdoer does not profit from its violation. The court may also consider whether the violation was intentional, and the other party's efforts to mitigate resulting prejudice. Fisons, 122 Wn.2d at 355-56. The extreme sanction of a default judgment should be imposed `only where there has been a willful or deliberate refusal to obey a discovery order which substantially prejudices the opponent's ability to prepare for trial.' Snedigar v. Hoddersen, 114 Wn.2d 153, 169, 786 P.2d 781 (1990) (emphasis added).

Fox first contends a default sanction was mandatory because Alcoa intentionally violated the rules and the court's order. This argument reflects a misunderstanding of the cases and ignores the other elements of the Fisons analysis, as well as the Snedigar holding that default is an appropriate sanction only where substantial prejudice is demonstrated. The wrongdoer's intent is relevant but is not alone determinative.

Fox also contends that only a default sanction could have satisfied the Fisons requirement of preventing Alcoa from profiting by its discovery violations. For this argument Fox relies primarily on Gammon v. Clark Equipment Co., 38 Wn. App. 274, 686 P.2d 1102 (1984). Clark manufactured a backhoe, which toppled over and killed the plaintiff's husband. In response to Gammon's interrogatories, Clark produced only five backhoe accident reports. After a court order, Clark turned over 50 more reports. During trial, it became apparent that Clark had withheld two further boxes of relevant documents. After a verdict for Clark, the trial court denied Gammon's motion for a new trial, but awarded $2,500 in sanctions against Clark. We reversed, holding that the court had abused its discretion because such a minimal sanction in the context of a $4.5 million lawsuit allowed Clark to profit from its wrongdoing and encouraged other litigants to act similarly. We remanded for a new trial. We did not, however, order entry of a default. Neither the facts nor the procedure in Gammon support Fox's argument. Profit from wrongdoing in discovery is largely a question of evaluating the prejudice that resulted. When Judge Armstrong declined to enter a default against Alcoa, she stated: `I am not going to enter a default. . . . I have done that in cases, but this is not the kind of case where the conduct is so egregious as to require that as a sanction.' Report of Proceedings (RP) (May 7, 2004) at 46-47. The written order stated: `The motion for default is denied. Default is an extreme remedy not appropriate under the circumstances presented here.' Clerk's Papers at 1472.

This was not an abuse of the court's discretion. The judge supervising discovery is uniquely positioned to weigh the nature of the violations against their likely prejudicial consequences, and has broad discretion in fashioning a sanction. For example, the court may consider whether a party failed to mitigate the prejudice caused by the discovery violation. Fisons, 122 Wn.2d at 355-56. Here, a short continuance would have allowed Fox to obtain the missing discovery. Such a continuance was expressly offered for a period of Fox's choosing[4] and at Alcoa's expense; it is clear from the record that the court intended to use the continuance to enforce discovery with dispatch. It is also clear, and must have been clear at the time of the motion, that there was no real medical reason for Fox to refuse a short continuance.[5]

Fox now shifts ground, and argues that her decision to reject a continuance was actually founded on potential costs amounting to several hundred thousand dollars for a three month continuance. But Fox did not make this argument to the trial court, and in any event, the court expressly ordered Alcoa to pay any costs incurred as a result of a continuance.[6] In contrast to the plaintiff in Gammon, who had endured two years of discovery and had no opportunity to mitigate the prejudice of discovery violations without interrupting an ongoing jury trial, Fox declined a remedy that would have allowed time for depositions, production of an amended privilege log, and in camera review.[7]

Further, unlike the plaintiffs in Fisons or Gammon, Fox does not point to smoking gun documents. The prejudice she now alleges stems from the tardy disclosure of the names of the plant safety directors, and the likelihood that unprivileged

documents were listed in the privilege log. But safety information was available from other sources. Alcoa timely disclosed the name of Fox's grandfather's supervisor, Brock Wilson, who had knowledge of her grandfather's working conditions and testified that he oversaw the department's safety practices. Fox neither deposed nor cross-examined him. It is difficult to see how prejudice justifying default resulted from tardy disclosure of the names of the safety officers. As to the documents listed in the privilege log, the potential for prejudice is almost impossible to assess.[8]

In her reply brief, Fox claims for the first time that Alcoa's violations forced her to withdraw her claim of conspiracy. Fox did not make this argument below, and it is not borne out by the record. Although the court found Fox had been prejudiced by Alcoa's failure to disclose the names of the board of directors, Fox did not argue at the time of the default motion that she would be forced to abandon her conspiracy claim as a result. Later, in pretrial proceedings, Alcoa challenged the conspiracy claim for insufficient evidence. Fox did not respond that Alcoa's discovery violations precluded her from presenting a greater degree of evidence. The trial judge permitted the conspiracy claim to go forward. At the close of her case in chief, however, Fox voluntarily withdrew the claim without explanation and without arguing that its withdrawal was necessitated by Alcoa's discovery violations. Fox failed to preserve any issue of prejudice regarding the conspiracy claim.

Default is a drastic sanction, reserved for the most egregious and prejudicial instances of discovery violations. Rivers v. Wash. State Conf. of Mason Contrs., 145 Wn.2d 674, 696, 41 P.3d 1175 (2002).[9] The court did not abuse its discretion in concluding that Fox's claims of prejudice in trial preparation did not rise to a level warranting default.

In a separate argument, Fox asserts that the court erred under Rivers by failing to conduct an analysis on the record as to why the lesser sanction of the imposition of costs was appropriate. This argument has no merit. The Rivers court held that before the ultimate sanction of default may be imposed, it must be apparent from the record that: `(1) the party's refusal to obey the discovery order was willful or deliberate, (2) the party's actions substantially prejudiced the opponent's ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would probably have sufficed.' Id. at 686.

The purpose of this requirement is to ensure that all reasonable efforts are made to avoid the drastic outcome of default by requiring that where drastic sanctions are imposed, the court has considered and rejected lesser sanctions as inadequate. Id. at 696. Nothing in Rivers suggests that a court must conduct a reverse balancing and set forth the reasons lesser sanctions are more appropriate.

Adverse Inference Instruction. Fox proposed the following instruction: You are instructed that Defendant Alcoa, Inc. violated an Order of this Court by withholding information to which plaintiffs were entitled under the Washington Rules of Civil Procedure. You are entitled to presume that the information that Alcoa wrongfully withheld would have been beneficial to the plaintiff's case.

Clerk's Papers at 887. The trial judge declined to give the instruction. There is no Washington authority clearly approving the use of an adverse inference instruction as a sanction for a discovery violation. Courts that have approved the instruction describe its purpose as `restoring the prejudiced party to the same position he would have been in absent the wrongful {withholding} of evidence by the opposing party.' Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998). Cases from these jurisdictions make clear that when the instruction is sought on the basis that evidence was not produced in time for use at trial, the party seeking the instruction must show `(1) that the party having control over the evidence had an obligation to timely produce it; (2) that the party that failed to timely produce the evidence had `a culpable state of mind'; and (3) that the missing evidence is `relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.'[10] Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).

Here the difficulty lies in the third requirement. A prejudiced party may be permitted an inference in his favor `so long as he has produced some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the {withheld} files.' Kronisch, 150 F.3d at 128. Before an adverse inference is permitted, `we require some showing indicating that the. . . evidence would have been relevant to the contested issue.' Id. at 127.[11] To this end, a party seeking the instruction may rely on circumstantial evidence to suggest the contents of withheld evidence. Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001).

The two cases mentioned above are instructive. In Kronisch, an adverse inference was held appropriate where the plaintiff sought to prove CIA involvement in a victims' LSD exposure. The court found that the missing documents (reports of covert CIA drugging operations) were the obvious source of proof of the CIA's alleged contact with the victim. Kronisch, 150 F.3d at 129-30. In Byrnie, the court held that an adverse inference instruction was appropriate where ample evidence existed that withheld documents (consisting of notes made during candidate interviews) were relevant to plaintiff's claim of age and sex discrimination in hiring. Byrnie, 243 F.3d at 110.

In support of her request for the instruction, Fox identified two categories of withheld evidence: the late-disclosed names of the safety directors, and the documents for which privilege was claimed, which were listed but not described. Fox argued the safety directors could have testified about whether Fox's grandfather was offered disposable protective clothing during the 1970s and 1980s, which she described at the close of trial as `central to the issues of negligence and causation.' Clerk's Papers at 1479. Regarding the privilege log, Fox argued that `based upon Alcoa's overall discovery conduct in this case, it can reasonably be presumed that at least some of the documents. . . would have ultimately been found to be discoverable.' Clerk's Papers at 1480.

A trial court's decision to refuse a requested instruction, when based on the facts of the case, will not be disturbed on review except upon a clear showing of abuse of discretion.[12] We find no such abuse of discretion here. In contrast to Kronisch and Byrnie, Fox has not shown that the documents listed in the privilege log were relevant to supporting her claims. Fox may be correct that, given Alcoa's discovery tactics, it is likely that at least some documents listed in the privilege log were discoverable and should have been disclosed. This does not, however, answer what, if any, inference should be drawn from the withholding of unidentified documents of unknown nature. Nor has Fox pointed to any indication that the safety directors' testimony would have differed from Wilson's regarding the provision of disposable clothing to workers.

Further, neither the instruction nor the evidence at trial identified the nature of any information withheld by Alcoa. Indeed, the proposed instruction was so broad it left the jury without any meaningful guidance, and it is unclear how the jury could have sensibly applied a presumption that missing information would have benefited Fox.

Judicial discretion `means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.' State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The task of determining the relevance of destroyed or withheld evidence is `unavoidably imperfect, inasmuch as, in the absence of the. .. evidence, we can only venture guesses with varying degrees of confidence as to what that missing evidence may have revealed.' Kronisch, 150 F.3d at 127. But even given that difficulty, there must be a showing of relevance, and the jury must understand how and to what the inference applies. The court did not abuse its discretion in declining to give the instruction. Conclusion. Lastly, Fox asserts the trial court abused its discretion by failing to impose any sanction at all on Alcoa. This argument is belied by the record. Sanctions were imposed, including all expenses incurred as a result of the violations, together with costs of copying and costs of the contempt motion.

The court did not abuse of its discretion in the imposition of sanctions here. We affirm.

APPELWICK and AGID, JJ., concur.

[1] The court found that Fox's trial preparation was prejudiced by Alcoa's actions in five specific areas: whether the Wenatchee plant contained asbestos, the names of the boards of directors, the names of the six Wenatchee safety officers, Aloca's journal subscriptions, and the failure to include the subject matter in the privilege log.

[2] Alcoa asserts that these sanctions amounted to $214,723.86, an amount Fox disputes.

[3] CR 26(g) provides:

Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record. . . . The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. . . .

If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include

an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney fee. [4] The court stated: `If {Fox} wants it, I am going to continue the case for as many weeks as {her counsel} thinks he wants to do the discovery.' RP (May 7, 2004) at 47.

[5] Fox's expert later testified that Fox's prognosis indicated a six year life expectancy and that Fox would have `at least three to four years before manifesting significant secondary effects' from the cancer. RP (May 27, 2004) at 78.

[6] The court stated: `{W}hen we extend time, it's more expensive; because he's presumably nearly prepared to go to trial, because he's going to trial in a week. Any time you do a continuance, there's a certain reduplication of trial readiness. And I think {Fox} should be compensated for that amount.' RP (May 7, 2004) at 47-48.

[7] We are keenly mindful of the burdens on plaintiff's counsel created by Alcoa's contumnacious conduct, and we are also aware that in many circumstances, a continuance might serve to reward the withholding party. See Gammon, 38 Wn. App. at 282. We do not suggest that a continuance must be offered, much less accepted by the injured party, before extreme sanctions are appropriate. [8] Fox did not seek in camera review of the documents, which she alleges were numerous.

[9] See also RCL Northwest v. Colorado Resources, 72 Wn. App. 265, 272, 864 P.2d 12 (1993) (defendant did not respond to discovery even after court narrowed scope and failed to provide responses even after court vacated order of default on condition that answers be provided); Associated Mortg. Investors v. G. P. Kent Constr. Co., 15 Wn. App. 223, 225-26, 548 P.2d 558 (1976) (partial answers to interrogatories filed six weeks after deadline, defendant then failed to respond to two orders to compel, both threatening default, and further failed to fully respond when deadline extended).

[10] Wigmore states the adverse inference rule as follows:

The failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor, provided the opponent, when the identity of the document is disputed, first introduces some evidence tending to show that the document actually destroyed or withheld is the one as to whose contents it is desired to draw an inference. 2 John H. Wigmore, Evidence in Trials at Common Law sec. 291, at 228 (Chadbourn rev. 1979).

[11] See also Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 923-24 (2d Cir. 1981) (court erred in charging jury with adverse inference instruction based on nonproduction of personnel records when withheld documents were from a time period prior to alleged discrimination). [12] State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).

Sources

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