Autopsy is waived for asbestos victim

Since being diagnosed with asbestos-related cancer two years ago, James Ross has come to accept his terminal illness. It's the hours after the Queen Anne man takes his final breath that have him concerned.

After filing a lawsuit last year against several manufacturers of asbestos products, Ross, 71, learned that mesothelioma victims who die in the midst of civil litigation in King County must undergo an autopsy.

Ross objected, saying a physician has diagnosed him with the cancer and an autopsy will be unnecessary. He asked a King County judge to issue a protection order to spare his wife, Esther, the emotional stress of enduring an autopsy while trying to plan his funeral.

"I have said no, for philosophical reasons," Ross said. "They're pestering widows. They don't need that."

On Thursday, King County Superior Court Judge Paris Kallas issued a carefully worded order that waives the autopsy requirement for Ross. The ruling does not overturn the county's autopsy policy for mesothelioma victims embroiled in litigation, nor does it forbid defense lawyers from later petitioning a judge to order an autopsy on Ross' remains.

"The court grants Mr. Ross' motion for a protective order ... this does not prevent the defense from specifically seeking permission for an autopsy," Kallas wrote in her ruling.

For Ross, the judge's order means his remains will not be automatically subjected to an autopsy if he dies in the midst of litigation.

The autopsy requirement was adopted in 1984, when King County was overwhelmed with claims stemming from cancer-causing building materials, said Seattle attorney Matthew Bergman, who is representing Ross.

Twenty years ago, it was impossible to detect mesothelioma without an autopsy, but medical technology has evolved and now mesothelioma can be diagnosed before a person dies, Bergman said.

In his motion to have Ross' body kept off the exam table, Bergman pushed to have the county stop performing autopsies on those who had filed suit for asbestos-related damages.

While Kallas denied Bergman's move to throw out the autopsy requirement, Bergman says Ross' case lays the groundwork for other court challenges to the post-death examination.

"I believe, based on this precedent, it will be impossible for anybody [suffering from mesothelioma] to undergo an autopsy," said Bergman, who said he has handled nearly 250 mesothelioma lawsuits since 1998.

"I have done a lot of these cases, and the grief these families go through is horrific."

James Apa, spokesman for Public Health — Seattle and King County, said the most recent statistics his office has on hand are from 1999 to 2001, when there were 67 mesothelioma deaths in the county.

Ross said he worked for 51 years as a Seattle-based brakeman and conductor for Great Northern Railway (now BNSF Railway), and the companies that later bought the onetime railroad giant.

He thinks his illness was caused by the chemicals on the brake shoes and by asbestos in products he used to remodel his home.

The retiree's case is scheduled for trial in March, Bergman said.

When diagnosed two years ago, Ross was given about eight months to live, Bergman said.

A lawyer representing drywall company Kaiser Gypsum, one of the companies Ross is suing, could not be reached for comment Friday.

In a previous court filing, lawyers for the companies have argued that Ross did not have protection from the autopsy because he was not arguing for protection based upon religious beliefs.

Bergman said many mesothelioma victims have been granted protection from an autopsy in King County based upon religious beliefs. Ross, who said he is not against autopsies because of such a belief, calls this argument "rank discrimination."

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com