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Reargument of Summary Judgment Denied; Decedent’s Exposure Affidavit Admissible for Motion

Superior Court of Delaware, New Castle

In this matter, the plaintiff alleges that the decedent’s asbestosis was caused by exposure to the defendants’ asbestos-containing products throughout his career as a mechanic. Pertinent to this motion, the decedent executed an affidavit containing details of his work history and the products with which he worked on July 16, 2014. The decedent was subsequently hospitalized on two separate occasions, and was deemed a candidate for hospice care. He executed a second affidavit on October 8 and passed on October 19, two days before his scheduled deposition on October 21.

The defendants moved for summary judgment, arguing that the statements contained within the affidavits were inadmissible hearsay. The plaintiff opposed the motion, contending that the statements were qualified exceptions to hearsay. As previously reported by the Asbestos Case Tracker, the court found that the plaintiff’s statements qualified under the residual exception pursuant to Delaware Uniform Rules of Evidence Rule 807, and denied the defendants’ motion.

Thereafter, the defendants filed a motion for reargument under Delaware Superior Court Civil Rule 59(e), which sets forth that a party must show that “the court overlooked a controlling precedent or legal principle, or the court has misapprehended the law or facts such as would have changed the outcome of the underlying decision.” Further, ‘[t]he moving party has the burden of demonstrating ‘newly discovered evidence, a change of law, or manifest injustice.’”

The defendants argued that the court erred in considering the hearsay issue. The court rejected this argument, stating that the defendants fully briefed and requested a ruling on the issue. The court also noted that “[a]n unexpected adverse ruling is no grounds for Rule 59 relief.”

Second, the defendants set forth what the court described as traditional reargument contentions, including that the court overlooked controlling precedent. In support, the defendants submitted supplemental briefing and additional authority to exclude the statements contained within the affidavits. While first noting that the briefing was not presented at the summary judgment stage, the court also set forth that the “belated authority does not establish a misapprehension of law or facts that would alter the outcome of the discreet admissibility issue.” The court found that the cases cited by the defendants at the summary judgment stage, as well as in the supplemental briefing, were distinguishable from this matter. In Collins v. Ashland, the decedent’s affidavit did not fall under the residual exception to the hearsay rule as the court found several statement in the affidavit to be false.

In Sternhagen v. Dow Co., the affidavit was not admissible under the residual exception as a 40-year time gap weighed against its truthfulness. In this matter, the defendants did not argue that the statements in decedent’s affidavit were false, or that there was a substantial time gap which would weigh against its truthfulness. The defendants also cited to Stigliano v. Anchor Packing Co., which the court distinguished as the plaintiff had been deposed four times and did not mention the defendant’s product prior to executing the affidavit. The court noted that “given the substantial deposition record in Stigliano, there was certainly far more probative evidence available than just plaintiff’s affidavit. Here, where [decedent] died two days before his scheduled deposition, his prior affidavits are the most probative evidence available.” Therefore, the court held that it did not overlook controlling precedent in its previous ruling.

In addition, the defendants contend that the court’s ruling would encourage the plaintiffs’ attorneys to obtain affidavits from their clients, and subsequently argue that their clients’ physical conditions would prevent their clients from participating in depositions. The court also rejected this argument, noting that this narrow evidentiary ruling would not be a “sweeping decision affecting the future of all Delaware asbestos litigation.” Instead, admissibility issues are decided on a case-by-case basis, and any plaintiff who seeks the admissibility of an affidavit under this hearsay exception would have to satisfy the “exacting” requirements of Delaware Uniform Rules of Evidence Rule 807. The court further warned that all parties are “under a duty to participate in good faith in the framing of a discovery plan” pursuant to Delaware’s Rules of Civil Procedure Rule 26, and any “party acting in bad faith, does so at its peril.”