Superior Court of Delaware, New Castle, July 1, 2020
A Delaware lower court has determined that an affidavit signed by a deceased plaintiff is admissible under that state’s “residual exception” to hearsay rules. Specifically, in Ogg, the plaintiff signed an affidavit regarding his work history prior to being hospitalized for end stage pulmonary fibrosis. After being discharged from the hospital, and about two weeks prior to his deposition, the plaintiff signed a second affidavit. The plaintiff passed away two days prior to a scheduled deposition. In connection with summary judgment motions, the parties sought a determination from the court concerning the admissibility of the affidavits.
The moving defendants asserted that the affidavits were inadmissible under various hearsay rules. The court ultimately determined that the affidavits were not admissible under Delaware’s ‘dying declaration’ exception to the hearsay rule because they were not executed:
“under a sense of impending death” as required under 804(b)(2). Although the October Affidavit certainly came closer to his final days, the record reflects that Mr. Ogg and his counsel contemplated he would have time to provide additional statements at his deposition on October 21. These would not be his final words. Therefore, as in Stigliano and Collins, this Court finds that the lapse in time between Mr. Ogg’s death and the execution of the affidavit ‘precludes a finding of imminence needed to satisfy the dying declaration exception.’ Therefore, neither affidavit is admissible as a dying declaration under D.R.E. 804(b)(2).” [citations omitted]
The court, however, determined that the affidavits were admissible under Delaware’s “residual exception” to the state’s hearsay rules. Here, the court found the affidavits accounted ‘in great detail’ certain information regarding ‘where and when’ the plaintiff worked with certain products. The court discussed various other factors under Delaware law in determining that, in that case, the affidavits satisfied Delaware’s residual exception rule. For example, the court distinguished a prior Delaware case finding a deceased plaintiff’s affidavits were inadmissible because the affidavits at issue in the prior case were issued after that plaintiff’s deposition was taken. The court further stated:
“Although Defendants argue they cannot challenge the credibility of [plaintiff’]s accounts, the question before this Court is as to the admissibility-not the credibility of the affidavits. The jury decides issues related to witness credibility and resolves conflicts in testimony, if any. The Defendants will have the opportunity to present impeachment evidence to undermine [plaintiff’s] statements or accounts ….[and] can argue what weight they believe the jury should afford [plaintiff’s] affidavits and why.” [citations omitted].
Accordingly, the court determined that the affidavits in the Ogg matter satisfied Delaware’s ‘residual exception” and determined that such affidavits were consequently admissible.