In a resounding legal victory for the family of Doy Coogan, the Washington Supreme Court last week reinstated the $81.5 million verdict awarded to them by a jury in 2017 for the wrongful death of their husband and father. It was a unanimous opinion. The opinion is a vigorous defense of the right to a jury trial and the importance of it in our justice system. At the end I thought I’d also wildly speculate about why this 9-0 opinion took eight months to come out—which is much longer than normal for a unanimous opinion for this court.
Background
The details of what the family went through are important because they really drove the jury’s decision. Doy Coogan died a drawn-out, awful, painful death while his family watched him die in slow motion.
Doy Coogan spent decades working on cars and repairing industrial equipment, using what ended up being asbestos-containing parts sold in NAPA stores. In 2015 he fell ill and was diagnosed with mesothelioma that metastasized to other parts of his body, including his abdomen, diaphragm, and both lungs. The tumors caused fluid to build up, putting painful pressure on his internal organs and made it difficult to breathe. Doctors drained fluid from his stomach every week. The tumors obstructed his bowels, leading to anorexia and malnutrition. He developed open wounds on his body. His lungs collapsed and kidneys failed. He died six months later at the age of 67.
The Trial
Coogan’s widow, daughters, and estate sued NAPA and several other entities for wrongful death. After several entities were either dismissed or settled out, the plaintiffs endured a 3 month trial in 2017 vs. NAPA and a related entity. The jury unanimously found NAPA and the other entity were liable for Coogan’s death and entered an $81.5 million verdict, broken down like this: $30 million for Coogan’s pain and suffering, $30 million to Coogan’s widow for her loss of consortium, $20 million to Coogan’s daughters for their loss of consortium, and $1.5 million for the loss of services he would have provided to his family.
Note—Washington does not have punitive damages, so these damages are all considered compensatory.
NAPA moved to set aside the verdict and for a new trial, or alternatively, to enter a remittitur of damages. Remittitur can occur where the judge (1) finds the jury verdict was so excessive given the evidence that it must be the result of passion or prejudice, and then (2) gives the plaintiff a choice: accept a reduced amount of X or I grant a new trial. In support of their motion, Defendants argued that one of their medical experts was wrongly excluded and the verdict was the result of passion or prejudice brought on by the alleged misconduct of Coogan’s attorney. The trial court denied the motion.
Defendants appealed. While that appeal was pending, they then moved for relief from judgment on the basis that the Coogan family hid evidence and misrepresented the quality of Coogan’s relationship with his family. The trial court denied that motion, and that order was appealed as well.
Court of Appeals
In a splintered opinion, the Court of Appeals, Division II, affirmed the liability verdict, but set aside the damages award. By a vote of 3-0, the court held the trial court abused its discretion by excluding the Defendants’ medical expert, and as a result, the jury award to the widow and daughters had to be reversed. The court also set aside the noneconomic damages award for Coogan’s pain and suffering (by a vote of 2-1) because it was excessive and shocked the conscience of the court. The court also held (by a different lineup of 2-1) the trial judge did not abuse its discretion when it ruled there was no misconduct requiring a new trial on liability. Accordingly the court ordered a new trial on damages.
The first dissenter, Judge Linda Lee, would have granted a new trial on liability, as well as damages, due to the prejudicial misconduct of plaintiff’s counsel.
The second dissenter, Judge Rich Melnick, would not have reversed the general damages award for Doy Coogan’s noneconomic damages. He said the majority substituted its judgment for that of the jury’s and based its ruling “solely on its subjective belief, after reading a cold record, that the verdict ‘shocks the conscience of the court.’”
The Court of Appeals’ opinions can be found at 2020 WL 824192 and 2020 Wash. App. LEXIS 379.
Supreme Court
In an opinion written by Justice Debra Stephens, the Supreme Court reversed the Court of Appeals and reinstated the verdict. She begins by briefly but evocatively describing Doy Coogan’s awful experience with mesothelioma (she’s a fantastic writer):
Coogan was soon diagnosed with malignant mesothelioma in his peritoneum that metastasized to other parts of his body. Tumors developed in his abdomen, diaphragm, and both lungs. The tumors caused fluid to build up in ascites, putting painful pressuring on Coogan’s internal organs and making it difficult for him to breathe. To relieve that pressure, doctors had to drain fluid out of Coogan’s abdomen every week. Eventually, they had to place a catheter in Coogan’s chest to drain fluid from his lungs even more frequently. Coogan’s tumors also obstructed his bowels, leading to anorexia and malnutrition. Coogan’s body began to deteriorate from a lack of nutrients. He developed open wounds on his body. His lungs collapsed. His kidneys failed. Unable to eat, drink, or breathe without pain, Coogan died six months after he first sought medical attention. He was 67 years old.
From what I understand, even the defense conceded at trial that how Coogan died was one of the worst ways to die. The plaintiff’s lawyer at oral argument described it as something like both slowly starving and suffocating to death at the same time.
The court’s analysis begins with an ode to the jury trial:
Trial by jury is the bedrock of our justice system. We trust juries to render verdicts based on their assessment of the evidence according to the law as instructed by the trial court. Appellate review is appropriately limited, serving as a backstop to ensure trials are conducted fairly, the law is applied correctly, and the verdict is within the bounds of justice. Apart from answering questions of law and reviewing the trial court’s discretionary rulings for any manifest abuse of discretion, appellate courts will not substitute their own judgment for that of the trial court or jury. Most relevant here, we will not set aside a jury’s verdict unless circumstances clearly show it is the product of an unfair process or improper considerations, such that no reasonable person could believe the verdict is just.
The court first held the trial judge was well within his discretion to exclude the Defendants’ medical expert. Defendants had a medical expert who was going to testify that Coogan may have also suffered from late stage liver cirrhosis that could have significantly reduced his life expectancy. Under our rules of evidence, expert testimony is admitted only if the testimony will assist the trier of fact, which means the expert’s opinion must be based on fact and cannot be a conclusion or based on an assumption.
Basically the expert was going to speculate that Coogan was likely going to live only 5 more years and not the 15 provided for in the actuarial chart. He based this belief on the presence of some of the same symptoms that occur with mesothelioma. He could not say what percent of those symptoms could be ascribed to cirrhosis vs. mesothelioma, much less that any of them were caused by cirrhosis. Basically his testimony came down to Coogan might have only five years to live because he might have stage 3 cirrhosis.
The trial court excluded the testimony as too attenuated and too speculative. The judge also ruled it was unfairly prejudicial because evidence of alcohol abuse, the cause of cirrhosis, has the potential to stimulate an emotional response. The Supreme Court agreed on all counts.
The court then held the trial court properly denied the motion for a new trial on the basis of the alleged misconduct of plaintiff’s counsel. The record did not show the alleged misconduct had a prejudicial effect on the jury. Trial judges are—and should be—accorded great deference when ruling on a motion for a new trial because they witnessed all the testimony and the alleged misconduct. They are therefore in a much better position than the appellate courts, who are simply reading trial testimony and argument from the “cold record,” as Judge Melnick put it in his dissent on a different issue. A couple of instances of improper questions in a three month trial do not amount to misconduct. Further, several of the statements that Defendant claims were misconduct during closing arguments were never objected to at the time, even when the trial judge invited the parties to place any objections on the record at the end of closing.
Third, the court addressed the Court of Appeals reversal of the noneconomic damages award for Doy Coogan’s pain and suffering leading up to his death. This is the part of the opinion that I think will have the most impact.
The court emphasized that appellate courts have a limited role in reviewing jury verdicts. There is a strong presumption a jury’s verdict is correct, especially after a trial judge has denied a motion for a new trial, and only in narrow circumstances can that presumption be overcome.
In WA, courts can set aside a jury’s damages verdict for two reasons. First, if “it is outside the range of substantial evidence in the record.” The evidence and all reasonable inferences must be viewed in the light most favorable to the verdict. Second, a damages verdict can be set aside when the record manifestly shows the jury based its verdict on “some malign influence or egregious impropriety at trial rather than properly admitted evidence.”
Defendants challenged the jury verdict award only under the second scenario because, the court noted, they recognized the substantial evidence in the record supporting the verdict. To prevail, Defendants must show the jury’s verdict was improperly influenced by “untoward incidents of such extreme and inflammatory nature that the court’s admonitions and instructions could not cure or neutralize them.”
Let me tell you, that is a high bar to clear. And the court holds the Defendants cannot clear it.
The court quotes the trial judge:
[I]n a three-month long trial, it is impossible not to be able to go through a record and pull out this question and that one and string together an argument that looks like there was some prejudice when the great mass of the evidence is what the jury is supposed to consider and what I have to assume they did consider.
And here is where the Supreme Court—gently—indicates its displeasure at the Court of Appeals. First, the court notes, the Court of Appeals’ decision to overturn the damages verdict as shockingly excessive is undercut by its decision to uphold the liability verdict:
The Court of Appeals appropriately rejected GPC and NAPA’s challenge to the liability verdict premised on instances of attorney misconduct alleged to have prejudiced the jury against GPC and NAPA. Common sense suggests that if those incidents did not prejudice the jury’s verdict on liability, they did not prejudice the jury’s verdict on damages either.
“Common sense suggests….” Ouch.
The court next criticized the Court of Appeals for reweighing the evidence instead of deferring to the jury’s assessment of the evidence. Again using common sense, the court points out that because there was a dissent on this issue, that should probably tell you that reasonable minds differ on the value of Coogan’s suffering.
The court emphasizes there is no legal standard for determining the length of suffering needed to support a significant verdict. The court described Coogan’s suffering this way:
In this case, the evidence showed that Coogan suffered for months from an ever-growing array of symptoms that robbed him of the ability to eat, drink, or breathe without pain. His body deteriorated with alarming speed, while fluid built up in and around his internal organs. He knew death was fast approaching. Given the severity of Coogan’s suffering, the jury’s verdict does not shock the conscience or offend notions of justice.
And then quoting an earlier case, the court said: “‘Our conscience is apparently more resilient than the Court of Appeals to shock.”
Oof.
Lastly, the court held the trial court did not abuse its discretion in denying the Defendants’ motion for relief from judgment on the basis of newly discovered evidence. The Defendants accused the family of hiding evidence that showed familial discord. The evidence they were apparently “hiding” was declarations filed in probate court over a dispute about Doy Coogan’s will. But the Defendants knew about the probate proceedings and even tried to admit one of the declarations at trial. So basically the court said “you knew about this stuff, but failed to investigate or pursue it. That’s on you and can’t be the basis for relief from judgment because of alleged newly discovered evidence.” The court noted in a footnote that this failure appears to have been a consequence of trial strategy because the Defendants focused exclusively on liability and did not argue the appropriate amount of damages.
This was a resounding win for the plaintiffs, yes, but also the right to trial by jury. My hope is this gives the family some measure of closure.
My Wild Speculation
Ok, so I referenced at the top that this 9-0 opinion took eight months to be published. That’s at least twice as long as other 9-0 opinions have taken recently. So what happened?
Let me say at the outset, I have no inside information. I don’t know what happened behind the scenes, if anything happened at all, and we’ll likely never know.
But, it’s kind of fun to speculate, so speculate I shall…
If you watch oral argument, which you can do here if you so desire, you’ll notice Justice Sheryl Gordon McCloud asks several technical procedural questions of the parties, like “if we disagree with you on this issue, what part of the verdicts are affected.” Those are the kind of questions that someone writing an opinion would have because they get at the precise relief the court would grant. So my guess—again, just a guess—is Justice Gordon McCloud was either (1) the assigned justice and who would write the opinion if she was in the majority, or (2) preparing to write a dissent.
Then something happened. It could have been in the conference of justices, where Justice Gordon McCloud was outvoted, so she became a dissenting judge but ultimately changed her mind. Or maybe in the process of writing the opinions, Justice Stephens wrote a dissent that later got turned into a majority opinion because others changed their minds. Or maybe there was a lot of back and forth between justices about particular language and in an effort to come up with a unanimous opinion, Justice Stephens made some concessions. Or maybe Justice Stephens was the original assignment judge, but she was also finishing up her duties as Chief Justice and was behind and needed a few months to get caught up.
Again, I’m going to emphasize I don’t know if anything happened, or if so, what. But it sure seems odd to me that a 9-0 opinion would take eight months to publish when the court frequently publishes those kinds of opinions in three.