Collateral Estoppel Did Not Bar Petition to Perpetuate Testimony in Federal Court Prior to Filing Suit Due to Key Distinctions Between Federal and Texas Rules of Civil Procedure U.S. District Court for the Southern District of Texas, September 30, 2016

The petitioner filed suit against various entities after developing mesothelioma, alleging asbestos exposure while working for Square D in Cedar Rapids, Iowa from 1971-76. Due to her extremely bad and rapidly deteriorating health, the petitioner sought a court order authorizing her oral and videotaped deposition for use in her anticipated lawsuit for either personal injury or wrongful death. The court granted her request to perpetuate testimony.

The court analyzed Federal Rule of Civil Procedure 27(a), which establishes the procedure for obtaining a pre-suit deposition to perpetuate testimony. The court also examined Fifth Circuit law outlining elements to consider when determining whether such a deposition was proper. Based upon the filings, presentations, and stipulations at the court hearing, the court found that the petitioner adequately satisfied the rule’s requirements.

The court also analyzed whether collateral estoppel applied to bar suit against four of the defendants in this case, due to previous dismissals for lack of personal jurisdiction in similar petitions in Texas state court. Collateral estoppel is a complete bar to later actions when the factual issues that are precluded from re-litigation are determinative of the matter in controversy in later suits. Here, collateral estoppel did not bar this proceeding due to key distinctions between Federal Rule 27 (a) and its Texas counterpart, Rule 202. Since this was a federal case, federal procedural rules applied, and Federal Rule 27 had very liberal jurisdictional provisions tor a proceeding to perpetuate testimony — allowing same where any expected adverse party resided. “The purpose of Rule 27(a)(1) is solely to permit the petitioner to preserve testimony or evidence that might be lost, concealed or destroyed before suit is filed, but, unlike its Texas counterpart, it is not for use to uncover facts that might support the future suit … this Court … may grant an order to take a deposition ‘if it is satisfied that a failure or a delay of justice may thereby be prevented.’”

Although General Electric argued that a Rule 27(a) petitioner must show they were presently unable to file a lawsuit because there was some obstacle beyond their control which prevented them from doing so, Rule 27 was available in special circumstances to preserve testimony which would otherwise be lost. It may not, however, be used to obtain facts necessary to draft a complaint. Substantial authority supported the petitioner’s claim that serious illness may constitute a significant risk that a witness’s testimony may be lost if not taken before suit can be filed.

Read the full decision here.


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