Plaintiff’s Incomplete Deposition Testimony Deemed Inadmissible; Summary Judgment Granted for Defendant U.S. District Court for the Northern District of Ohio, Eastern Division, October 19, 2017

OHIO — The decedent, Donald French, filed suit as a result of his diagnosis of mesothelioma allegedly caused by occupational exposure from asbestos-containing products through his work at U.S. Steel in Dearborn, Michigan. French provided testimony as to his alleged exposures at a discovery deposition that lasted approximately 18 hours over three days. On the third day, French identified the defendant as a source of exposure. The deposition, however, was not completed. The fourth day of deposition was adjourned due to French’s poor health. French passed away shortly thereafter and the deposition was never completed. The defendant acknowledges, during the relevant time period, that it did manufacturer and sell products that contained asbestos. However, there was no other evidence in this case connecting defendant to French or U.S. Steel.

The defendant subsequently filed motions to strike and exclude the plaintiff’s deposition testimony and for summary judgment. The defendant argued this testimony could not be admitted when there is no reasonable opportunity to cross-examine the witness on the subject topic and the admission of this testimony would be a violation of defendant’s basic protections of the Confrontation Clause of the Sixth Amendment to the United States Constitution. The plaintiff opposed.

Both parties agreed that the defendant was present at French’s deposition and that Fed. R. Civ. P. 32(a)(2) through (8) allows for the use of depositions when the witness is unavailable by reason of death. The dispute arises out of the disagreement on whether French’s testimony identifying defendant is admissible under the Rules of Evidence.  The plaintiff argues that the defendant was present during three days of testimony, which allowed an opportunity to cross examine French.  The plaintiff concedes that the defendant was not identified by French until close to the end of the third day of deposition.

The court, while understanding the plaintiff’s frustration, held in favor for the defendant. The decision held it appeared clear from the uncontested facts and that defendant was not provided a reasonable opportunity to cross-examine French about his identification of the defendant’s products. The court also emphasized the sworn obligation to uphold the constitutional and procedural protections put in place to protect the defendants from potentially unwarranted liability.

The defendant’s motion to strike and preclude the plaintiff’s deposition testimony was granted. Therefore, as plaintiff could no longer provide admissible evidence connecting defendant to any alleged exposure, the defendant’s motion for summary judgment was also granted.

Read the full decision here.


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