Prior Depositions of Non-Party Asbestos Supplier Representative Ruled Inadmissible on Appeal

NEW YORK — In 2014, decedent, Kimberlee Billok, was diagnosed with mesothelioma and died three months later at the age of 42. She claimed to have been exposed to Georgia-Pacific joint compound as an infant, and sued Union Carbide based upon it having supplied asbestos to Georgia-Pacific. Prior to trial in 2017, Union Carbide filed a motion in limine to preclude depositions of Georgia-Pacific’s corporate representative taken in 2001 and 2003, or in the alternative, to permit introduction of a 2007 deposition of the same witness which contradicted testimony from the two earlier depositions.

The trial court denied Union Carbide’s request to preclude the 2001 and 2003 testimony, but permitted it to introduce the 2007 testimony. The jury later returned a defense verdict.

The plaintiff appealed, arguing that the trial court abused its discretion by permitting introduction of the 2007 deposition testimony. The appellate court agreed, holding that because the plaintiff was not a party to the 2007 action, she did not have an opportunity to cross-examine the witness. As such, the court ruled the 2007 testimony inadmissible and remitted the matter for a new trial.

However, because the court ordered a new trial, it was necessary to review the denial of the motion in limine to preclude the 2001 and 2003 testimony. The witness had never testified for any party in this case. Based on that fact, the court found that CPLR 3117(a)(2) did not permit the plaintiff to introduce the 2001 and 2003 depositions in her case-in-chief. Furthermore, CPLR 3117(c) did not permit Union Carbide to impeach those depositions with another deposition