Burkhart v. H.J. Heinz Co. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Burkhart v. H.J. Heinz Co., Slip Opinion No. 2014-Ohio-3766.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-3766
BURKHART, APPELLEE, v. H.J. HEINZ COMPANY, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Burkhart v. H.J. Heinz Co.,
Slip Opinion No. 2014-Ohio-3766.]
Evidence—Evid.R. 804(B)(1)—Hearsay exception for former testimony—
Predecessor-in-interest—Former testimony given by a claimant in a
products-liability lawsuit against asbestos manufacturers is not admissible
in a workers’ compensation lawsuit brought by the claimant’s surviving
spouse against the claimant’s employer alleging workplace exposure to
asbestos when the employer or a predecessor-in-interest did not have an
opportunity or a motive similar to the manufacturers’ motive to develop
the former testimony.
(No. 2013-0580—Submitted February 25, 2014—Decided September 3, 2014.)
APPEAL from the Court of Appeals for Wood County,
No. WD–12–008, 2013-Ohio-723.
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O’DONNELL, J.
{¶ 1} In this appeal, we are asked to clarify whether former testimony
given by the claimant in a products liability lawsuit against asbestos
manufacturers is admissible in a workers’ compensation lawsuit against the
claimant’s employer alleging workplace exposure to asbestos.
{¶ 2} Donald Burkhart worked for H.J. Heinz Company, developed
mesothelioma, and subsequently died. He had given deposition testimony in a
products-liability action he had filed against various asbestos manufacturers, but
he did not sue H.J. Heinz as part of that lawsuit. After he died, his wife, Mary
Lou Burkhart, filed a claim against H.J. Heinz seeking workers’ compensation
death benefits. She relied on her husband’s deposition in the products-liability
case to show that H.J. Heinz had injuriously exposed him to asbestos. The
Industrial Commission denied her claim, and on appeal, the trial court struck her
husband’s former testimony from the record and entered summary judgment for
H.J. Heinz. The court of appeals reversed the entry of summary judgment and
held that Burkhart’s deposition testimony is admissible to prove that H.J. Heinz
injuriously exposed him to asbestos, concluding that the manufacturers defending
the products liability action were predecessors-in-interest because they shared a
similar motive with H.J. Heinz to develop Burkhart’s testimony.
{¶ 3} Evid.R. 804(B)(1) states that former testimony of a declarant who
is not currently available to testify is not excluded as hearsay when the following
separate, conjunctive requirements are met: (1) the party against whom the
testimony is offered, or, in a civil action or proceeding, a predecessor-in-interest,
had an opportunity to examine the declarant in the prior proceeding, and (2) that
party had a motive that is similar to the motive that the party would have in the
present proceeding to develop the former testimony by direct, cross, or redirect
examination.
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{¶ 4} In this case, the parties who had an opportunity to examine
Burkhart at the prior deposition were not predecessors-in-interest to H.J. Heinz.
None of the asbestos manufacturers present at his deposition preceded H.J. Heinz
in ownership of its business, its facilities, or the pipe insulation that allegedly
caused his exposure to asbestos. Nor did any asbestos manufacturer in the
products-liability litigation have the same or similar motive as H.J. Heinz to
develop Burkhart’s deposition testimony; rather, each asbestos manufacturer
sought to disprove that he had been exposed to asbestos that it had produced, and
none had an incentive to dispute that he had not been exposed to asbestos at H.J.
Heinz.
{¶ 5} Accordingly, Burkhart’s deposition testimony is not admissible in
this case pursuant to Evid.R. 804(B)(1), and therefore the judgment of the court of
appeals is reversed, and the case is remanded to the trial court for further
proceedings.
Facts and Procedural History
{¶ 6} H.J. Heinz employed Burkhart as a maintenance worker at its
ketchup-bottling plant in Bowling Green, Ohio, from 1946 to 1976 and at its
Fremont facility from 1976 until his retirement in 1986. During his tenure at the
Bowling Green plant, he worked in the boiler room, where he was allegedly
exposed to pipe insulation containing asbestos.
{¶ 7} Doctors diagnosed him with malignant pleural mesothelioma in
November 2005, and as a result, he filed a products liability action against various
asbestos manufacturers. Prior to his death on May 23, 2007, he gave a videotaped
deposition in that case to perpetuate his testimony. However, H.J. Heinz was not a
party to that lawsuit and had no opportunity to cross-examine him at that time.
{¶ 8} In March 2009, Burkhart’s wife, Mary Lou Burkhart, filed a
workers’ compensation claim for death benefits, asserting that her husband had
been exposed to asbestos while working for H.J. Heinz and that he died as a result
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of an occupational disease. Both the district hearing officer and the staff hearing
officer denied her claim, concluding that Mrs. Burkhart failed to prove that
workplace exposure to asbestos caused her husband’s death. The Industrial
Commission denied review.
{¶ 9} Mrs. Burkhart appealed to the Wood County Common Pleas Court,
and H.J. Heinz moved for summary judgment, asserting that she could not prove
that it had injuriously exposed her husband to asbestos at work.
{¶ 10} Mrs. Burkhart opposed the motion for summary judgment,
attaching the transcripts of the video depositions of her husband in the products-
liability action. In particular, she relied on the following segments of his former
testimony:
Q All right. Now, in 1946, you said that you went into the
boiler room, what did you have to do in the boiler room, what was
your job?
A Well, like I said, Heinz never throwed nothing away,
and this asbestos stuff was knocked off the pipes, had to put it in a
bucket and saved it and we would, in spare time, would beat it to
pieces, make a paste out of it and put it back on the pipes.
Q Okay. And would these be the pipes in the boiler room?
A Yes, or anyplace else.
Q Now, when you say this asbestos stuff—
A Well, it was flaky, they called it asbestos, I don't know
what it was.
Q Who is they that called it asbestos?
A Management.
***
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Q When you would pick up this asbestos in the buckets to
mix it up and put it on, was that a dusty process?
A Oh, yes.
Q Do you believe that you breathed in that dust?
A Well, if it was dust, I got some of it.
{¶ 11} Mrs. Burkhart also attached invoices for pipe insulation sent to the
facility in Bowling Green, interrogatories filed in unrelated litigation in which
Owens Corning Fiberglass Corporation admitted that this type of pipe insulation
contained asbestos, an environmental report indicating that asbestos was present
in pipe insulation in the Bowling Green and Fremont facilities, an affidavit from a
coworker who expressed a belief that Burkhart had been exposed to asbestos dust
in the workplace, Burkhart’s medical records, and expert reports opining that
workplace exposure to asbestos caused Burkhart’s mesothelioma.
{¶ 12} The trial court struck Burkhart’s deposition transcripts from the
record, concluding that the exception to the hearsay rule for former testimony did
not apply because H.J. Heinz, or a predecessor-in-interest, was not involved in the
earlier litigation. It also struck the invoices for pipe insulation, the
interrogatories, and the environmental report, and it disregarded statements in
Burkhart’s medical records and the reports of Mrs. Burkhart’s experts relating to
Burkhart’s workplace exposure to asbestos.
{¶ 13} The common pleas court then granted summary judgment in favor
of H.J. Heinz, finding that evidence from a coworker that Burkhart had “worked
in a dusty boiler room containing pipes he thought might have been covered with
asbestos insulation” and testimony from a current H.J. Heinz employee that “it
was ‘possible’ someone working in the boiler house at the Bowling Green plant
could have been exposed to asbestos and that asbestos existed in the Fremont
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plant at least until 1987” did not create a genuine issue of material fact that
Burkhart had an injurious exposure to asbestos at the H.J. Heinz facilities.
{¶ 14} Mrs. Burkhart appealed to the Sixth District Court of Appeals,
which reversed and held that the trial court erred in striking Burkhart’s deposition
testimony, because it determined that the manufacturers in the asbestos litigation
were predecessors-in-interest to H.J. Heinz for purposes of Evid.R. 804(B)(1), in
that, the appellate court concluded, they shared a similar motive to develop his
testimony. According to the appellate court, “the defendants in the Cuyahoga
County asbestos cases and appellee share the same position with respect to
appellant: all would benefit if it was disproven that Donald Burkhart had been
exposed to asbestos. ” 2013-Ohio-723, 989 N.E.2d 128, ¶ 41 (6th Dist.). And
after deciding that the trial court had acted unreasonably in striking the invoices
for pipe insulation, the interrogatories, the environmental report, and portions of
Burkhart’s medical records and the expert reports, the court of appeals concluded
that Mrs. Burkhart had presented sufficient evidence to survive the motion for
summary judgment. Id. at ¶ 58.
{¶ 15} We accepted H.J. Heinz’s discretionary appeal on one proposition
of law:
Pursuant to Evid.R. 804(B)(1) a deposition taken in an
unrelated tort action against sellers of asbestos-containing
materials is not admissible against a defendant employer in a
subsequent workers’ compensation action where the employer was
not a party to the tort action and the alleged tortfeasors had no
similar motives in cross-examining the decedent.
H.J. Heinz maintains that its own interests conflicted with those of the
manufacturers who defended the asbestos litigation, because the manufacturers
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had no incentive to challenge Burkhart’s assertions that he had been exposed to
asbestos in the workplace. H.J. Heinz emphasizes that the manufacturers made no
effort to question Burkhart’s ability to identify asbestos materials, to examine his
potential exposure to asbestos during military service and at his father’s garage, or
to develop his statement that management had told him that the pipe insulation he
repaired in the boiler room contained asbestos; rather, the manufacturers needed
to establish only that their own asbestos had not been present in the H.J. Heinz
facilities.
{¶ 16} Mrs. Burkhart contends that the manufacturers in the asbestos
litigation can be considered predecessors-in-interest to H.J. Heinz because they
had an opportunity and similar motive to develop Burkhart’s testimony. She
notes that her husband’s exposure to asbestos at the workplace concerned each of
the manufacturers, because “[n]o exposure at Heinz would mean no exposure to
their product.” She cites the Third Circuit Court of Appeals’ decision in Lloyd v.
Am. Export Lines, Inc., 580 F.2d 1179 (3d Cir.1978), for the proposition that any
party to prior litigation can be considered a predecessor-in-interest if it had a
similar motive to cross-examine the declarant as the present party, and she notes
the Sixth Circuit Court of Appeals and other Ohio intermediate appellate courts
have adopted this view. And because the asbestos manufacturers and H.J. Heinz
shared a “community of interest,” id. at 1185, to disprove Burkhart’s allegations
of injurious exposure to asbestos, the former testimony is similar to the testimony
H.J. Heinz would have sought to develop had it been present. Lastly, she argues
that H.J. Heinz is estopped from objecting to the use of the deposition testimony,
because it has used and continues to use that testimony to prove that Burkhart was
not exposed to asbestos at the workplace.
{¶ 17} Accordingly, the issue is whether asbestos manufacturers
defending a products-liability action may be considered predecessors-in-interest
with a similar motive to develop the testimony of a witness as an employer
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contesting a workers’ compensation claim that it had injuriously exposed its
employee to asbestos.
The Former Testimony Exception to the Hearsay Rule
{¶ 18} At common law, courts recognized an exception to the hearsay rule
for former testimony elicited in a prior proceeding involving the same parties
litigating the same issue. See generally 2 McCormick, Evidence, Section 303, at
487-490 (7th Ed.Broun Ed.2013); 5 Wigmore, Evidence, Section 1388, at 111
(Chadbourn Rev.1974); Weissenberger, Ohio Evidence, Section 804.16, at 232
(2013). Courts accepted former testimony because the core concern of the
hearsay rule had been satisfied when the assertions of the witness had been tested
in the crucible of cross-examination by the party against whom it was offered. 5
Wigmore, Evidence, Section 1362, at 3; 2 McCormick, Evidence, Section 301, at
482; Lilly, An Introduction to the Law of Evidence, Section 7.23, at 326 (3d
Ed.1996).
{¶ 19} We first adopted the common-law exception in Wagers v. Dickey,
17 Ohio 439, 1848 WL 124 (1848), stating at the syllabus, “Where a witness who
has testified in a cause is dead, on a trial of the same cause between the same
parties, another witness may testify as to the substance of what the deceased
witness testified on the former trial.” And in Summons v. State, 5 Ohio St. 325,
342-343 (1856), we explained,
Testimony of the statements of deceased witnesses given on a
formal trial, between the same parties, touching the same subject-
matter, has been admitted among the exceptions to the rule
excluding hearsay evidence, from a very early period, and has been
sanctioned by an unbroken current of decisions, both in England
and in this country.
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{¶ 20} The common-law rule evolved to also permit the admission of
former testimony against a party “when that party is a successor in interest to the
corresponding party in the former suit. This notion, to which the label ‘privity’ is
attached, is considered to offer adequate protection to the party opposing
admission.” 2 McCormick, Evidence, Section 303, at 488. As Professor
Weissenberger explains,
Forcing a party to accept another litigant’s cross-examination
seemed unfair unless there was only a nominal change in parties,
as when the parties were connected by privity, meaning they were
privies in blood, property, or law, and held the same rights and
protected the same interests. It did not appear unfair to hold a
party responsible for a previous litigant’s examination or cross-
examination of a witness when the party against whom the prior
testimony was offered had succeeded to the position of the
predecessor litigant conducting the examination or cross-
examination in the prior action.
(Footnotes omitted.) Weissenberger, The Former Testimony Hearsay Exception:
A Study in Rulemaking, Judicial Revisionism, and the Separation of Powers, 67
N.C.L.Rev. 295, 307-308 (1989).
{¶ 21} For example, in Rutherford v. Geddes, 71 U.S. 220, 224, 18 L. Ed.
343 (1866), the United States Supreme Court upheld the exclusion of depositions
taken in a separate admiralty action,
for the reason that they were taken without notice to defendants, in
another suit to which defendants were not parties, and in which
they had no right or opportunity to cross-examine the witnesses.
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Nor were defendants in any manner privies to either party in the
former suit, in which the depositions had been taken. This alone, it
is well settled, is a sufficient reason for their exclusion.
Accord Tappan v. Beardsley, 77 U.S. 427, 436, 19 L. Ed. 974 (1870) (“depositions
in chancery can only be read when the bill shows that the cause was against the
same parties, or those claiming in privity with them”); Rumford Chem. Works v.
Hygienic Chem. Co. of New Jersey, 215 U.S. 156, 159-160, 30 S. Ct. 45, 54 L. Ed.
137 (1909) (excluding former testimony based on the proponent’s failure to
establish that the party opponent was a party or a privy to a party in the prior
proceeding).
{¶ 22} In Metro. St. Ry. Co. v. Gumby, 99 F. 192, 198 (2d Cir.1900), the
Second Circuit Court of Appeals applied the former-testimony exception and
explained that privity meant that the parties had
“mutual or successive relationships to the same rights of property,
and privies are distributed into several classes, according to the
manner of this relationship. Thus, there are privies in estate, as
donor and donee, lessor and lessee, and joint tenant; privies in
blood, as heir and ancestor, and co-parceners; privies in
representation, as executor and testator, administrator and intestate;
privies in law, where the law, without privity of blood or estate,
casts the land upon another, as by escheat.”
Id. at 198, quoting 19 American and English Encyclopedia of Law, Privies-
Privity, at 156 (1892). Similarly, the Supreme Court of North Carolina stated,
“To make one a privy to an action, he must be one who has acquired an interest in
the subject-matter of the action, either by inheritance, succession, or purchase
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from a party to the action subsequent to its institution.” Bryan v. Malloy, 90 N.C.
508, 511 (1884).
{¶ 23} In Indus. Comm. v. Bartholome, 128 Ohio St. 13, 26, 190 N.E. 193
(1934), we recognized that “[t]he rigor of the common-law rules of evidence has
undergone much relaxation in order to meet the demands of an ever-changing
civilization.” In that case, Joseph Bartholome had been deposed by counsel for
the Industrial Commission in his claim for workers’ compensation benefits. After
he died, his wife relied on his prior deposition to prove her entitlement to
workers’ compensation survivor benefits. We noted that former testimony is
admissible in a civil proceeding if the person against whom the evidence is
offered had the opportunity to cross-examine the declarant, the issues were
substantially similar in both proceedings, and the proceedings involve either the
same parties or their representatives in interest. Id. at 25-26. Noting that
Bartholome had been cross-examined by the counsel for the Industrial
Commission, the party opponent in both proceedings, we upheld the admission of
this evidence. Id. at 25-26.
Evid.R. 804(B)(1)
{¶ 24} Effective July 1, 1980, we adopted the Ohio Rules of Evidence,
which pursuant to Evid.R. 102, “shall be construed to state the principles of the
common law of Ohio unless the rule clearly indicates that a change is intended.”
{¶ 25} Evid.R. 804(B) restates the former testimony exception to the
hearsay rule:
The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at
another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the same
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or another proceeding, if the party against whom the testimony is
now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. Testimony
given at a preliminary hearing must satisfy the right to
confrontation and exhibit indicia of reliability.
{¶ 26} This exception to the hearsay rule applies to former testimony
offered against a party when that party or the party’s predecessor-in-interest was a
party to the prior proceeding. The term “predecessor-in-interest” is generally
treated as interchangeable with the phrase “persons in privity” and refers to one
“from whom the present party received the right, title, interest or obligation that is
at issue in the current litigation.” Lilly, An Introduction to the Law of Evidence,
Section 7.23, at 328; see also Weissenberger, Ohio Evidence, Section 804.16, at
234, fn. 730 (explaining that use of the term “predecessor in interest” in Evid.R.
804(B)(1) “was intended to mean ‘privity’ or some analogous concept implicating
a true succession of legal interests”).
{¶ 27} Thus, our rule does not change the common-law former-testimony
exception, but rather retains the requirement that either the party against whom
the former testimony is offered or that party’s privy—i.e., its predecessor-in-
interest—had the opportunity to cross-examine the declarant in the prior
proceeding. It is therefore not enough that a prior litigant had an opportunity and
similar motive to develop the testimony; there must be some legally recognized
interest shared by the parties to assuage “the historical concern that it is generally
unfair to impose upon the party against whom the hearsay evidence is offered
responsibility for the manner with which the witness was handled by another
party.” Weissenberger, Ohio Evidence, Section 804.16, at 233.
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{¶ 28} We recognize that some federal courts have determined that
neither privity nor common property interests are required to establish a
predecessor-in-interest relationship, concluding that a shared interest in the
material facts and outcome of the case creates an interest that is sufficient to admit
former testimony pursuant to Fed.R.Evid. 804(b)(1), the federal analogue to
Evid.R. 804(B)(1). See, e.g., New Jersey Turnpike Auth. v. PPG Industries, Inc.,
197 F.3d 96, 110, fn. 21 (3d Cir.1999), citing Lloyd v. Am. Export Lines, Inc., 580
F.2d 1179 (3d Cir.1978); New England Mut. Life Ins. Co. v. Anderson, 888 F.2d
646, 651 (10th Cir.1989); Clay v. Johns-Manville Sales Corp., 722 F.2d 1289,
1295 (6th Cir.1983); Rule v. Internatl. Assn. of Bridge, Structural & Ornamental
Ironworkers, Local Union No. 396, 568 F.2d 558, 569 (8th Cir.1977), as modified
on denial of rehearing (1978).
{¶ 29} Although federal caselaw construing an analogous provision in the
Federal Rules of Evidence may be instructive in interpreting our rules, it is not
binding on this court. Ohio Consumers’ Counsel v. Pub. Util. Comm., 111 Ohio
St.3d 300, 2006-Ohio-5789, 856 N.E.2d 213, ¶ 89; State ex rel. Tyler v.
Alexander, 52 Ohio St. 3d 84, 85, 555 N.E.2d 966 (1990), quoting Houston v.
Lack, 487 U.S. 266, 280, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988) (declining to
adopt construction of an appellate rule that is “remote from plain English”).
{¶ 30} We do not find the federal cases persuasive. First, the historical
development of the hearsay exception for former testimony in Ohio demonstrates
that the use of the term “predecessor-in-interest” maintains the rule that former
testimony may be offered against only a party to the prior proceeding or one in
privity with such a party, and we construe the Rules of Evidence as continuing the
common-law practice unless a change is clearly indicated. See Evid.R. 102;
Weissenberger, Ohio Evidence, Section 804.11, at 224 (Evid.R. 804(B)(1) “is in
accord with preexisting Ohio law”), and fn. 690, citing Bartholome, 128 Ohio St.
13, 190 N.E. 193.
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{¶ 31} Second, the plain language of Evid.R. 804(B)(1) establishes
separate, conjunctive requirements for the admission of former testimony: (1)
either the party against whom the testimony is now offered, or that party’s
predecessor-in-interest, had an opportunity to examine the declarant in the prior
proceeding, and (2) that party or its predecessor-in-interest had a motive to
develop the former testimony that is similar to the motive that the party would
have in the present proceeding. It is a basic rule of construction that a court will
give effect to each term and avoid a construction that renders any provision
meaningless, inoperative, or superfluous. Rhodes v. New Philadelphia, 129 Ohio
St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 23; State ex rel. Whitacre-Greer
Fireproofing Co. v. Conrad, 96 Ohio St. 3d 340, 2002-Ohio-4742, 774 N.E.2d
1209, ¶ 16; see Turner, Federal Rule of Evidence 804: Will the Real Predecessor-
in-Interest Please Stand Up? 19 Akron L. Rev. 251, 260 (1985) (“If a
‘predecessor-in-interest’ is merely a person with a ‘similar motive to examine’
then the phrase is meaningless and redundant”). We decline to adopt a reading of
Evid.R. 804(B)(1) that conflates these two separate requirements. And we
therefore reject the analysis of the federal courts.
{¶ 32} Evid.R. 804(B)(1) bars the admission of former testimony against
a party when that party or a predecessor-in-interest had no opportunity to examine
the declarant at the prior proceeding. And, even if the party or the party’s
predecessor-in-interest had an opportunity to examine the declarant, former
testimony is nonetheless inadmissible if the examiner in the prior litigation lacked
a similar motive to develop the declarant’s testimony. Thus, contrary to the
interpretation of the federal courts, we view the requirement that the examiner
have had a similar motivation to be a further restriction on the admissibility of
former testimony, not an expansion of the common law rule that permits the
admission of former testimony against parties unrelated to the prior action.
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{¶ 33} Here, the record does not demonstrate that any manufacturer that
participated in Burkhart’s deposition is a predecessor-in-interest to H.J. Heinz.
Nothing indicates or suggests that any of these entities preceded H.J. Heinz in the
ownership of its business or its facilities. Nor is there any showing in this record
that any of these manufacturers sold the pipe insulation that allegedly caused his
exposure to asbestos at the H.J. Heinz facilities. Thus, Mrs. Burkhart has failed to
establish that any predecessor-in-interest to H.J. Heinz had an opportunity to
cross-examine Burkhart during the prior litigation.
{¶ 34} In addition, Mrs. Burkhart has not demonstrated that any of the
asbestos manufacturers had a similar motive to develop Burkhart’s testimony as
H.J. Heinz would have in this case. Notably, a manufacturer in a multidefendant
asbestos case is liable only if the claimant has been exposed to its product and that
exposure was a substantial factor in causing the claimant’s injury. Horton v.
Harwick Chem. Corp., 73 Ohio St. 3d 679, 653 N.E.2d 1196 (1995), paragraph
one of the syllabus. Thus, a manufacturer is not necessarily motivated to disprove
the claimant’s exposure to asbestos at the workplace, but rather is focused on
ensuring that its asbestos products are not identified as causing the claimant’s
injury. A manufacturer may have an incentive to develop or allow testimony
against other potentially liable parties, which could diminish its own liability and
decrease its share of the damages. See R.C. 2307.22(A)(2) (providing that when
multiple parties to a tort action are found responsible for the same injury, a
tortfeasor responsible for 50 percent or less of the tortious conduct is liable only
for its proportionate share of compensatory damages). It is not clear from this
record that any of the manufacturers in the products liability case produced the
pipe insulation at issue here or that any had an incentive to refute the assertion
that it caused an injurious exposure to asbestos.
{¶ 35} Thus, the asbestos manufacturers that cross-examined Burkhart at
his 2006 deposition neither were predecessors-in-interest to H.J. Heinz nor had a
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similar motive to develop the deposition testimony through cross-examination.
His former testimony is therefore not admissible in this action pursuant to Evid.R.
804(B)(1) as an exception to the hearsay rule.
Conclusion
{¶ 36} Former testimony of an unavailable witness is admissible when the
party against whom the testimony is offered, or, in a civil action or proceeding, a
predecessor-in-interest, had an opportunity and similar motive to develop that
testimony by direct, cross, or redirect examination. A predecessor-in-interest
relationship is not established merely by showing that the parties to the
proceedings shared an interest in the material facts and outcome of the case;
rather, a predecessor-in-interest is one from whom the present party received the
right, title, interest, or obligation that is at issue in the current litigation. And even
if the party or its predecessor-in-interest had an opportunity to examine the
declarant in a prior proceeding, former testimony is nonetheless inadmissible if
the examiner lacked a similar motive to develop that testimony.
{¶ 37} Here, neither H.J. Heinz nor any predecessor-in-interest to H.J.
Heinz had an opportunity to cross-examine Burkhart in the prior products-liability
litigation, nor was there a similar motive to develop his testimony during his
depositions. Thus, the transcript of that deposition testimony taken in that
products-liability case may not be offered against H.J. Heinz in this action for
workers’ compensation benefits.
{¶ 38} Accordingly, the judgment of the court of appeals is reversed as to
the admissibility of Burkhart’s deposition testimony, and the matter is remanded
to the trial court to consider whether the remaining evidence creates a genuine
issue of material fact regarding his injurious exposure to asbestos in the
workplace.
Judgment reversed
and cause remanded.
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O’CONNOR, C.J., and STEWART, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
PFEIFER, J., dissents.
MELODY J. STEWART, J., of the Eighth Appellate District, sitting for
LANZINGER, J.
____________________
PFEIFER, J., dissenting.
{¶ 39} At some level, it is possible that the majority is technically correct
in concluding that each of the various defendants in the prior litigation did not
have a motive similar to that of H.J. Heinz Company in the current litigation. But
there is no way for the majority to know that it is correct without assessing every
question that each of the defendants asked in the prior litigation. To reach its
expansive conclusion, the majority would have to determine whether the motive
of each defendant to develop the testimony in the prior proceeding was similar to
any motive that Heinz might have to develop testimony. In short, the majority
would have to determine everything that each of the various attorneys thought
throughout the entire litigation and the reasons why they adopted the approaches
they did. The majority has not done so because the majority cannot do so.
{¶ 40} Instead, the majority falls back on a generality: it concludes that it
is not clear from the record that any of the prior defendants “had an incentive to
refute the assertion that it caused an injurious exposure to asbestos.” Majority
opinion at ¶ 34. It defies credulity to claim, as the majority does, that none of the
previous defendants had any incentive to attempt to establish that Donald
Burkhart was not injured by exposure to asbestos. (Burkhart’s attorney states
that at least 25 defendants cross-examined Burkhart during a deposition in the
previous litigation.) The majority would have us believe that each of the
defendants focused exclusively on pointing fingers at fellow defendants. But
surely each and every one of the defendants would have argued that there was no
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SUPREME COURT OF OHIO
workplace exposure to asbestos if that had been a credible argument. That none
of the defendants argued that there was no exposure to asbestos suggests that it
was overwhelmingly clear that there was exposure to asbestos in the workplace,
not that the prior defendants did not have an incentive to establish the absence of
asbestos.
{¶ 41} This case boils down to whether any of the various defendants in
the prior litigation was a “predecessor in interest” to Heinz. The majority in this
case views the issue in exceedingly narrow terms. A better approach would be to
adopt the standard espoused in Lloyd v. Am. Export Lines, Inc., 580 F.2d 1179 (3d
Cir.1978). The court stated that it preferred an interpretation of “predecessor in
interest” that “is realistically generous over one that is formalistically grudging.”
Id. at 1187. The court considered its view practical:
“[I]f it appears that in the former suit a party having a like motive
to cross-examine about the same matters as the present party would
have, was accorded an adequate opportunity for such examination,
the testimony may be received against the present party.” Under
these circumstances, the previous party having like motive to
develop the testimony about the same material facts is, in the final
analysis, a predecessor in interest to the present party.
Id., quoting McCormick, Handbook of the Law of Evidence, Section 256, 619-620
(2d Ed.1972).
{¶ 42} The majority’s approach in this case is “formalistically grudging,”
especially considering that we are assessing the evidence before us on a motion
for summary judgment in the context of our no-fault workers compensation
system. The key issue in this case isn’t whether Heinz did anything wrong,
whether intentionally, negligently, or in any other way, the issue is simply
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January Term, 2014
whether Donald Burkhart was exposed to asbestos at his workplace. It is clear
that he was exposed to asbestos in his workplace, and this court should not adopt
a formalistically grudging approach to allow a narrow technical argument to
obscure that unassailable fact.
{¶ 43} The former testimony is admissible and should be allowed. I
dissent.
____________________
Bevan & Associates, L.P.A., Inc., Thomas W. Bevan, David S. Bates, and
Joshua P. Grunda, for appellee.
Seeley, Savidge, Ebert & Gourash Co., L.P.A., Keith A. Savidge, Andrew
D. Bemer, and Eric D. Baker, for appellant.
Vorys, Sater, Seymour and Pease, L.L.P., Richard D. Schuster, Daniel E.
Shuey, and Damien C. Kitte, urging reversal for amicus curiae, Ohio
Manufacturers’ Association.
_________________________
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