Exclusion of Decedent’s Deposition Testimony Upheld due to Lack of Meaningful Opportunity for Cross Examination Superior Court of Delaware, February 7, 2018

DELAWARE — Plaintiff William Sykes filed suit in March of 2014 against numerous defendants after being diagnosed with mesothelioma in October, 2013. The plaintiff’s counsel requested expedited trial and discovery depositions due to Plaintiff’s rapidly deteriorating health; a video trial deposition was taken on April 16, 2014. During a break in the trial deposition, the plaintiff informed counsel that he was unable to complete the remainder of the deposition. At that time, the parties were left with only the video trial deposition and no cross examination by any defense counsel. Sykes’s health worsened, and he passed away two weeks later without any further depositions taking place.

The defendants sought to exclude the plaintiff’s testimony as inadmissible hearsay under the Delaware Rules of Evidence. The defendants further argued that the Delaware Rule of Evidence 804(b)(1) exception to the hearsay rule did not apply because the plaintiff did not meet his burden demonstrating that any defendant had an opportunity to develop testimony from the plaintiff and the defendants attempted to develop testimony but were denied the opportunity. Conversely, the plaintiff argued that the testimony was admissible under 804(b)(1) because the defendants, on the record, were given the opportunity to cross examine Mr. Sykes but did not do so. Additionally, the plaintiff argued that the plaintiff’s testimony fell within the Delaware Rule of Evidence 807 “catch all” exception because granting the motion would deprive the plaintiff of his day in court.

The Special Master found that Sykes’s deposition testimony fell within the parameters of hearsay under 801 as an out-of-court statement by a declarant, offered into evidence to prove the truth of the matter asserted. The Special Master considered three possible exceptions to the rule against hearsay: Superior Court Civil Rule 32, Delaware Rule of Evidence 804(b)(1) former testimony exception, and Delaware Rule of Evidence 807 residual exception. The Special Master held that there was no meaningful opportunity for cross examination under 804(b)(1) and the “catch all” provision did not apply.

The plaintiff filed a Notice of Exceptions to the August 5 Order by the Special Master. The plaintiff argued that the Special Master erred in granting the defendant’s Motion to Exclude Testimony because the plaintiff’s testimony is admissible under the former testimony exception of 804(b)(1) and also is admissible under Superior Court Rule 32 independent from the Rules of Hearsay. The defendants filed a Response in Opposition, arguing that they did not have the opportunity to depose the plaintiff, and neither Superior Court Civil Rule 32 nor the former testimony exception under 804(b)(1) applied.

The court held that the defendants did not have a meaningful opportunity to develop the plaintiff’s testimony; “merely because Defendants decided to postpone their cross examination following the videotaped direct examination does not constitute a ‘waiver’ of the opportunity as Plaintiff argues.” The court further stated that it was not satisfied that “Defendant was ‘represented’ at the taking of the deposition under Rule 32 because Defendant did not have the opportunity to cross-examine Plaintiff.” Finally, the court held that the Special Master did not misconstrue facts or the law for the court to review; the plaintiff simply “rehashed arguments already decided before the Special Master.”

The court affirmed the Special Master’s decision to exclude the plaintiff’s testimony.

Read the full decision here.

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