A Seattle man expected to die from an asbestos cancer is fighting a requirement that he must undergo an autopsy after his death, a requirement the court mandates before his estate can sue the company that allegedly poisoned him through exposure to asbestos.
James Ross, age 71, objects to an autopsy on moral grounds and has filed a motion with the Seattle court asking that the autopsy requirement be waived, despite the adverse effect it will have on his lawsuit against Kaiser Gypsum and T.H. Agriculture & Nutrition. The defendants in the case are of course fighting the motion, claiming that if he does not agree to an autopsy his case should be dismissed.
Under Washington law, participants in asbestos litigation can opt out of the required autopsy if they cite religious objections. According to court documents, Ross objects on his personal belief that an autopsy results in ultimate destruction and disfiguration of the body.
Refusal to honor Ross’s moral objection violates Washington’s statute governing autopsies and contravenes fundamental notions of religious freedom and equal protection.
“It’s not a matter of nominal faith,” explains Matthew Bergman, an attorney for Ross. “This is directly related to constitutional rights since autopsies are seldom necessary to confirm diagnosis. Why shouldn’t James Ross’ request to refuse an autopsy be honored?”
Ross worked in and around asbestos for several decades as a brakeman and conductor for Burlington Northern Railroad based in Seattle. During the 1960s and 1970s, he performed a home remodel exposing him to the toxic and potentially deadly material. Until the late 1970s, asbestos was a common ingredient in joint compounds and ceiling and wall textures, products widely used in commercial and residential construction as well as home remodeling projects. Asbestos exposure has been linked to mesothelioma, and other asbestos-related diseases that may take as long as 15 to 30 years to manifest. Once diagnosed, patients often have only months to live.
Defendants in the pending litigation, Kaiser Gypsum and T.H. Agriculture & Nutrition, argue the differential treatment based on religious beliefs is appropriate and non-believers should be compelled to undergo the autopsy or face a greater risk for dismissal of their case. Why? If the man is diagnosed with an asbestos disease while living, what’s the point?
The asbestos lawsuit against the defendant hasn’t moved to trial because the defendants claim the plaintiff has not yet succumbed to mesothelioma.
Ross and Bergman understand the importance of the autopsy results for their case but are willing to risk the burden of proof as this decision could help aid future cases and support others in their right to deny an autopsy.
On Friday, Oct. 31, King County Judge Paris Kallas heard oral arguments from counsel on the plaintiff’s motion for a protective order prohibiting unauthorized autopsy.
Bergman believes Ross deserves the same treatment as other individuals excused on the grounds of religious beliefs and following under the first amendment of the U.S. Constitution.
“Despite the greater burden of proof in proving that the plaintiff suffers from mesothelioma, autopsies are not required to prove diagnosis,” said Bergman. “Rather, autopsies are helpful in resolving disputes only when diagnosis is already in question — that isn’t the case here.”
According to court documents, regardless of arguments for the autopsy, it is a violation of due process to mandate non-religious plaintiffs to undergo procedures while excusing those with religious objections from the same.
Let us cut you open when you die of an asbestos disease, though the idea might disturb you, or we are entitled to a get out of jail free pass since you’re not claiming religious grounds for objection. If he were to claim religious grounds for objection, it would all be fine? What is this, the Inquisition??
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