June 7, 2022

Alleged Discovery Violation Leads to Sanctions

A major car manufacturer (“Defendant”) recently failed to persuade a New Jersey appeals court to invalidate an $800,000 judgment to the estate of a woman who allegedly developed mesothelioma from exposure to asbestos through her husband and son’s work at car dealerships.

Marino vAbex Corp. et al., No. A-1523-19, 2022 WL 868811 (N.J. Super. Ct., App. Div. Mar. 24, 2022).

The 2010 wrongful death suit alleged the deceased plaintiff developed mesothelioma from the defendant’s brake dust her husband and son brought home on their clothes (from working at multiple car dealerships) she regularly laundered. 

During discovery, the defendant’s corporate designee testified he was unable to find any documents relating to the defendant’s certified training program for service employees from the period of 1960 to 1980, despite a discovery consent order calling to produce such documents. However, plaintiff’s counsel subsequently confronted the designee with a 1974 training manual on diagnosing and repairing brakes, which the designee admitted to having previously seen and testified about in a previous asbestos case.

Plaintiff moved for sanctions and asked the court to suppress Defendant’s answer and enter a default judgment. The trial court ruled the defendant violated Rule 4:14-2(c), which requires corporate representatives to testify “as to matters known or reasonably known to the organization.” The court issued a directed verdict to Plaintiff on general causation, ordered the jury be informed Defendant violated a court order and withheld evidence, and ordered Defendant to pay Plaintiff $14,419.30 in attorney fees and costs. The jury returned a verdict in Plaintiff’s favor, awarding her $800,000 in compensatory damages.

In affirming the trial court’s order, the appeals court rejected defendant’s contention it did not commit a discovery violation. The appellate court first affirmed the trial court’s factual findings that defendant willfully violated the discovery consent order. The court found no evidence to support defendant’s assertion it had acted in good faith in searching for evidence responsive to the consent order. The court further ruled the sanctions imposed by the trial court were not excessive due to the defendant’s actions/violations. The court found Defendant willfully withheld production of training manuals for service department employees that would have proven Defendant knew about the risks of asbestos and for several years thereafter failed to advise its departments and employees of the risks and how to safely service asbestos-containing parts. 

The appellate court’s opinion highlights the importance of due diligence, preparation, and the necessity of full transparency by both parties throughout discovery. Thorough preparation for corporate representative depositions is vitally important for defendants to adequately defend themselves from plaintiff counsel’s often-utilized reptilian tactics in asbestos litigation. The attorneys at the O’Brien firm place significant importance on preparing corporate representatives for every deposition, no matter the case.


                                                                        O’BRIEN FIRM

                                                                        /s/ William F. O’Brien

                                                                        WILLIAM F. O’BRIEN, ESQUIRE