Testimony of Plaintiff’s Key Witness is Inadmissible Hearsay; Court Reverses Judgment in Mesothelioma Claim Court of Appeal, First District, Division 5, California, October 26, 2018

CALIFORNIA — In the matter of Frank C. Hart, he Court of Appeal, First District, Division 5, California reversed a lower court’s judgment against defendant after finding the testimony of plaintiff’s key witness was inadmissible hearsay.

The plaintiff Frank C. Hart filed suit alleging that his mesothelioma diagnosed was caused by exposure to asbestos from his work in construction as a pipe layer. The paintiff alleged that defendant supplied asbestos-containing piping that exposed him to asbestos. The lower court’s judgment was primarily based on a foreman’s (Foreman) testimony regarding invoices purporting to show the defendant supplied asbestos-cement pipes to a worksite in McKinleyville, California in the 1970s.

More specifically, Foreman testified he knew Johns-Manville manufactured the piping based on his observation of the stamp on the pipe. Further, Foreman believed the defendant supplied the pipe because he signed invoices as products were delivered to the worksite(s), and he checked the invoices to ensure everything was in order. Foreman testified that he believed the defendant supplied the piping at the relevant worksite where the plaintiff worked. However, Foreman could not recall exactly how defendant’s name was written on the invoices or the names of any other suppliers. Foreman had no other basis for believing that defendant supplied piping to this work site.

The court focused in on the fact that Foreman’s belief that the defendant supplied the asbestos-cement pipe was based on his review of invoices or delivery tickets only, and found the wording on these invoices or delivery tickets were out of court statements offered to prove the truth of the matter asserted (i.e. that defendant supplied the piping). Thus, the invoices were found to be hearsay.

The court ultimately found that Foreman lacked the personal knowledge of who the supplier really was and ruled his testimony admissible. As such, since there was no other evidence that the defendant supplied piping that the plaintiff worked with or around, the judgment against the defendant was reversed.

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