Affidavits Executed by Decedent Containing Product Identification Admissible Under Dying Declaration Hearsay Exception Superior Court of Rhode Island, November 2, 2016

Decedent John Pisano executed three affidavits regarding Sears products after he was diagnosed with mesothelioma; he died three months after his diagnosis and was never deposed. The affidavits detailed the decedent’s use of floor tile, ceiling tile, and mastic purchased from Sears. Defendant Sears, Roebuck and Co. moved for summary judgment on various bases. The plaintiff presented these three affidavits in opposition to Sears’ summary judgment motion. The court denied the motion for summary judgment.

Sears argued the plaintiff could not demonstrate any causal connection between the decedent’s condition and the Sears products at issue, since at that time Sears sold different tiles. Further, the affidavits were inadmissible hearsay that were not executed with a sense of impending death in order to meet the dying declaration hearsay exception. Sears further argued it was exempt from liability due to Rhode Island’s statute of repose, and the facts of this matter fit the statute’s definition of improvement to real property such that no liability could attach.

The court analyzed Rhode Island rules of evidence to determine whether the affidavits were admissible. In doing so, it considered whether the decedent’s belief of impending death was sufficient to allow for the dying declaration hearsay exception. Rhode Island case law suggested that “no time limit applies in terminal illness cases when analyzing the definition of ‘impending.’” Here, the court was satisfied that decedent was fully aware of the terminal nature of his illness, such that the affidavits were admissible as an exception to hearsay.

Next the court analyzed whether the plaintiff provided sufficient product identification, since Sears argued it sold two identical tiles during the time of the decedent’s alleged exposure. The court looked to Massachusetts law for guidance in how a plaintiff might sufficiently allege contact with a defendant’s asbestos-containing product; these included: affidavits with a particular or specific date or range of contact, the proximity and frequency of any contact, and any witnesses who could support contact with the product. Applying these factors, the court found that the plaintiff alleged sufficient identification; sworn affidavits from a source with personal knowledge was sufficient to overcome product identification requirements at the summary judgment stage.

Finally, the court addressed the statute of repose argument. The intent of the legislature, and Rhode Island law, did not allow for application of this statute to the facts contained in this matter.

Read the full decision here.

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