Presence of Related Corporate Entities at Deposition Insufficient to Overcome Requirements of Notice and Opportunity to Cross-Examine State of New York Supreme Court, County of Monroe, July 23, 2018
The decedent Jo Ann Shields worked for a carpet and tile store for six years in the 1970s, and alleged that exposure to vinyl asbestos tile caused her fatal mesothelioma. Among other exposures, she alleged that she was exposed to asbestos floor tile manufactured by National Floor Products Company, a now defunct entity that was a subsidiary of a French corporation called Tarkett, S.A. Prior to her passing, she gave de bene esse and discovery depositions, at which defendants Tarkett, Inc. and Domco Products Texas, Inc. participated. The defendant Tarkett Alabama, a was added as a party defendant after Ms. Shields death, and they had no notice of her deposition, or opportunity to participate.
Tarkett Alabama moved for summary judgment arguing that the only evidence against it was Ms. Shields’ deposition testimony which would be inadmissible at trial per New York law. Plaintiff countered by arguing that corporate entities related to Tarkett Alabama, and with similar interests and motivations, participated actively in Ms. Shields’ deposition. The court granted the motion and held that Tarkett Alabama had been denied an opportunity to participate in the depositions, and that the testimony against it was inadmissible, uncorroborated hearsay.