Improper Exclusion of Plaintiff’s Affidavit and Testimony Leads to Reversal of Summary Judgment Pennsylvania Superior Court, October 28, 2019

PENNSYLVANIA – The plaintiff, Nicholas Kardos, was diagnosed with mesothelioma in January 2016, and he filed suit against numerous defendants in March of that year. On September 12, 2016, he submitted an affidavit regarding his work at Gulf Research and exposure to asbestos while employed there. He was deposed and cross-examined by numerous defendants over three days in October 2016, and passed away eight days after the last day of testimony. Numerous defendants filed motions for summary judgment. All of the defendants were present at the deposition, but some did not cross-examine the plaintiff.

Numerous summary judgment motions were filed in December 2016, with several defendants arguing Kardos’ affidavit and testimony should be precluded as hearsay. On December 12, 2016, the court entered an order precluding the plaintiff from using Kardos’ affidavit and deposition testimony in opposition to any party’s motion for summary judgment. In August 2017, numerous summary judgment motions were granted. The case subsequently went to trial against other defendants, and they all eventually settled. The plaintiff timely filed a notice of appeal of the court’s preclusion and summary judgment orders.

The superior court held that the Rules of Civil Procedure explicitly allows Kardos’ affidavit and testimony to be part of the summary judgment record. The affidavit was subject to perjury penalties and Kardos had direct and personal knowledge of the facts contained within it. Additionally, the affidavit was consistent with his deposition testimony, so there was no reason to reject the affidavit as inherently unreliable. The affidavit was, therefore, improperly precluded.

Similarly, the Superior Court ruled that even if the deposition testimony was hearsay, plaintiff was allowed to use hearsay in opposition to a motion for summary judgment. Additionally, the defendants had an opportunity to cross-examine Kardos, making the testimony of an unavailable witness admissible at trial, pursuant to Pa.R.E. 804(b)(1)(B).

Accordingly, the court vacated the orders granting summary judgment and reversed the order precluding the affidavit and deposition testimony.

Read the case decision here.

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