FILE NO. 05C-11-257 ASB


Plaintiff, Roland Grenier, respectfully submits this brief in response to Defendants Ford Motor Company and General Motors Corporation’s Motion to Preserve Plaintiff’s Lung Tissue.


This Court is well aware of Mr. Grenier’s battle with mesothelioma, which the jury found was caused by his extensive exposure to Defendants’ asbestos-containing products. Now, one and a half years after receiving notice of Mr. Grenier’s claims, and long after discovery closed, a full trial was had, a jury verdict rendered, and Defendants’ motion for new trial denied, Defendants make a final effort to revive their defense, this time in a most intrusive and offensive manner. Defendants’ motion is untimely, harassing, without good cause, and should be denied.

Argument and Authority

Defendants do not cite a single legal authority for their motion, because there is none. In fact, this request does not comport with any of the general requirements for discovery, as it is not “relevant to the subject matter involved” in a pending action and is not “reasonably calculated to lead to the discovery of admissible evidence.” R. Civ. Pro. 26. Since the trial is over, there is no place to admit evidence, even if admissible evidence were adduced. At best, Defendants’ request falls within the ambit of Superior Court Rule of Civil Procedure 35, which permits physical examinations in the course of discovery when the physical condition is “in controversy,” and “only on motion for good cause shown and upon notice . . . specify[ing] the time, place, manner, conditions and scope of the examination.” However, nothing in the text of the Rule suggests that it applies to deceased parties or to postmortem procedures. See, e.g., In re Asbestos Litig., 123 F.R.D. 84, 84 (D. Del. 1988) (finding that “it is doubtful that a corpse is a ‘person’ within the meaning of Rule 35”) (Ex. A); Holm v. Sup. Court, 187 Cal. App.3d 1241, 1248 (Cal. App. Ct. 1986) (such discovery applies only “to requests for examinations of living persons” and a “corpse is obviously not a ‘party’”) (Ex. B). Defendants have made no showing that, upon Mr. Grenier’s death, any other party would be subject to an order to remove Mr. Grenier’s lung tissue. Even if there was someone to whom a Rule 35 order applied, Defendants have met none of the requirements for the invasive procedure they seek.

First, Defendants’ motion is utterly untimely. Defendants’ expert states that the biopsies he examined “could not be used as documentation of prior asbestos exposures,” Travis Aff. at ¶ 6, but Mr. Grenier’s biopsies were produced before trial, and Defendants fail to explain why they did not seek further discovery at that time. Under similar conditions, the Delaware Supreme Court upheld a trial court’s denial of a late-filed request for an autopsy. Equitable Life Assurance Society v. Young & Revel, Inc., 250 A.2d 509, 510 (Del. 1969) (finding that trial court did not abuse discretion in refusing autopsy where demand was ten weeks late and thus not made within a reasonable time) (Ex. C). A court should not re-open discovery every time the losing party alleges that there is outstanding evidence that it deemed too insignificant to request before trial. Owen v. Pathmark Stores, Inc., No. 96C-05-256, 1998 WL 960685, *1 (Del. Super. Dec. 29, 1998) (denying motion for new trial based on discovery requests not made before trial: “the Court cannot encourage post-trial motions . . . when no [request] was made immediately prior to the start of trial”) (Ex. D); Del. Machinery & Tool Co. v. Yates, 351 N.E.2d 67, 76 (Ind. App. 1976) (finding party waived discovery of autopsy in failing to make timely request) (Ex. E). “It seems entirely reasonable, and in fact preferable, for the District Court to cut off discovery once a jury has returned a verdict.” Angelico v. Lehigh Valley Hosp., Inc., 85 Fed. Appx. 308, 311 (3rd Cir. 2004) (affirming denial of post-verdict discovery) (Ex. F).

Second, Defendants have not shown good cause. “[A]utopsy requests are treated in a different manner than requests for other forms of discovery” and are “granted only if there is a strong showing by the party making the request that an autopsy will be likely to establish the disputed fact and that the truth cannot be obtained through other evidence.” Del. Machinery, 351 N.E.2d at 73. See also, e.g., Petition of Sheffield Farms Co., 126 A.2d 886, 891 (1956) (finding that movant must show that it “would (in all reasonable probability) disclose the real truth not otherwise determinable”) (Ex. G); Equitable Life, 250 A.2d at 510 (finding it must be “reasonably certain that an examination of the body will reveal something bearing on the rights of the parties which could not otherwise be discovered”).

Postmortem procedures are “highly invasive” and the discovery rules do “not afford a carte blanche right of physical examination.” In re Certain Asbestos Cases, 112 F.R.D. 427, 434 (N.D. Tex. 1986) (Ex. H). The court went on to reject the defendants’ request for autopsies of asbestos victims, holding that a defendant must show both (1) “that each condition as to which the examination is sought is really and genuinely in controversy” and (2) “that good cause exists for ordering each particular examination.” Id. at 434 (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)). The discovery rule “‘requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of ‘in controversy’ and ‘good cause.’” Id. at 434-35 (quoting Schlagenhauf, 379 U.S. at 118-19).

To prove “good cause,” a defendant must demonstrate by affidavit that the postmortem procedure “is the most medically reasonable method, considering the reasonable medical alternatives, for determining the decedent’s physical condition at death.” In re Certain Asbestos Cases, 113 F.R.D. 612, 614 (N.D. Tex. 1986) (Ex. I). Defendants offer only conclusory claims about the pathology required to diagnose asbestos-related diseases, rely solely on one article and a perfunctory affidavit, and fail to consider any less-invasive alternatives. Other courts have rejected such general evidence as insufficient. In one case, for example, a defendant supported its request for an autopsy to confirm a plaintiff’s mesothelioma diagnosis with citations to medical reports, textbooks, and a pathologist’s affidavit. The court held that there was “no compelling reason to mandate an autopsy in this case.” Belkow v. Celotex Corp., 1989 WL 56976, *2 (N.D. Ill. 1989) (Ex. J). Another court was similarly unconvinced by a general affidavit that represented that “an autopsy can provide a much more accurate diagnosis of a person’s illnesses and their causes than may be achieved by examination of a living person,” noting that it was wary of giving that affidavit conclusive effect, even though it was uncontradicted. In re Asbestos Litig., 123 F.R.D. 84 (D. Del. 1988). Yet another court took it upon itself to appoint an independent expert to determine whether good cause existed for an asbestos plaintiff’s autopsy and ultimately rejected the defendant’s request when the expert concluded that “no meaningful information could be added . . . by a performance of an autopsy.” See Broyle v. Eagle Picher Indus., 123 F.R.D. 230, 231 (M.D. La. 1988) (Ex. K).

Defendants also suggest that Mr. Grenier has brought this demand upon himself by failing to “recall the manufacturers or products names with which he worked in these settings [n]or … identify co-workers who could testify as to the products he worked with in sufficient enough detail to allow Defendants to identify specifically the fiber type or to estimate the amount of exposure Mr. Grenier had at these jobs.” Motion at ¶ 10. Defendants ignore the fact that Mr. Grenier was dying at the time of his deposition. Nor do Defendants recognize that their duty to diligently conduct their case included such rudimentary things as deposing Mr. Grenier about the products he had identified on his work history sheet, which Defendants failed to do. Defendants’ conclusory arguments do not come close to meeting the requirements set out by courts that have considered whether to order postmortem procedures. Defendant has neither controverted Mr. Grenier’s diagnosis and proof of causation nor shown good cause for the procedure, particularly since the existing evidence – and the jury’s verdict – supports the diagnosis and the plaintiff’s theory of causation.

Indeed, the cause of Mr. Grenier’s mesothelioma is not “in controversy,” as it has already been fully considered and decided by the jury, which ruling this Court upheld in denying Defendants’ hard fought motion for new trial. Nor do Defendants come close to showing that the evidence they seek is “clearly superior” to evidence that the jury considered. See Belkow, 1989 WL 56976 at *2 (movant must show that “results from a post-mortem examination will be clearly superior to the data already available”). Defendants’ expert hypothesizes that Mr. Grenier’s lung tissue “would aid the jury in determining the cause of Mr. Grenier’s mesothelioma, an issue which is in dispute in this case.” Travis Aff. at 7. Of course, causation is no longer in dispute, but was decided months ago by the jury.

Defendants also suggest that the invasive discovery they seek “may reveal” something to support the argument that they already lost at trial. See Motion at ¶ 11. But the fact that Defendants may or may not find something to their liking simply does not justify the belated and extraordinary discovery they demand. See, e.g., Equitable Life, 250 A.2d at 510 (finding that trial court did not abuse discretion in refusing autopsy where “the record does not show that the cause of death will necessarily be determined by the proposed autopsy” and the movant’s claims that “an autopsy ‘may’ or ‘could’ prove causation are insufficient as the do not make it “reasonably certain” that he autopsy will establish the cause). Del. Machinery, 351 N.E.2d at 76 (denying request for autopsy where the movant’s “speculative purpose” that a postmortem “might show” another cause “falls short of establishment of necessity sufficient to require” the discovery). Defendants’ claim “is too speculative to justify relief in a case where no request was made” for the discovery before trial. Owen, 1998 WL 960685 at *2. “The Court certainly cannot assume that this entry would be seriously probative in overriding the jury’s perception of the eyewitness accounts, including particularly the Plaintiff’s own testimony.” Id.

Defendants overlook the fact that Plaintiff did not bear the burden to prove that Defendants’ products were the sole cause of Mr. Grenier’s mesothelioma. Rather, Mr. Grenier had to prove that Defendants’ products were a proximate cause of his illness. See, e.g., Del. Machinery, 351 N.E.2d at 76 (denying request for autopsy where movant could not show that postmortem could be expected to rule out another proximate cause). Even if the procedure Defendants seek did show exposure to other types of asbestos, there is no reason to believe it would have altered the jury’s finding that the asbestos in Defendants’ products were a cause of Mr. Grenier’s cancer. Defendants had extensive evidence regarding their causation theory – including pathology slides, medical records, Mr. Grenier’s work history sheets and testimony, expert testimony, and descriptions of scientific studies – and now make no showing that one more piece of evidence would probably change the jury’s finding. Without this threshold showing “that each condition as to which the examination is sought is really and genuinely in controversy,” a court cannot order an examination or autopsy.

Third, Defendants have not met the requirement to specify the time, place, manner, conditions and scope of the examination, as required in Rule 35. Defendants admit that “numerous issues will need to be resolved…including the mechanics of where and by whom a tissue sample shall be taken,” Motion at ¶ 8, thus suggesting an excuse for yet more delay. Defendants vaguely state that “science has developed several methods of analysis . . . [t]here are also various forms of analysis available” Motion at ¶ 5, but provide no insight into what exactly they intend to do with a portion of Mr. Grenier’s body, whether other reasonable and less invasive alternatives were available, and why they failed to make this discovery request during discovery.


Defendants have failed to show that its request is proper under the Delaware Rules of Civil Procedure. Further, Defendants have made no effort to show that Mr. Grenier’s mesothelioma diagnosis and the jury’s finding of causation is “in controversy” or that it has “good cause” for an autopsy. Plaintiffs respectfully request that this Court DENY Defendants’ Motion to Preserve Plaintiff’s Lung Tissue, and for such other and further relief to which Plaintiffs may be entitled.

Respectfully submitted,

Dated: August 3, 2007