Vedros v. Northrop Grumman et al
Filing
493
ORDER & REASONS: denying 442 Motion in Limine to Exclude Deposition Testimony of Sally Gros Vedros. Signed by Judge Carl Barbier on 6/18/15. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VEDROS
CIVIL ACTION
VERSUS
NO: 11-1198
NORTHROP GRUMMAN ET AL.
ORDER & REASONS
SECTION: “J” (4)
Before
the
Court
is
Defendant
The
Continental
Insurance
Company (“Continental”)’s Motion in Limine to Exclude Deposition
Testimony of Sally Gros Vedros (Rec. Doc. 442); Plaintiffs Sally
Gros
Vedros,
Doc.
462);
et
al
and
(“Plaintiffs”)’s
Continental’s
opposition
reply.
(Rec.
thereto
Doc.
489)
(Rec.
Having
considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
At this point in the litigation, both the Court and the
parties are very familiar with the facts of this case. The Court
has previously set out the detailed facts of this matter in its
Order and Reasons dated April 24, 2014. (Rec. Doc. 341) For
purposes of the instant motion, only the following facts are
pertinent.
This
(“Vedros”)
action
due
arises
to
from
the
mesothelioma.
death
Alton
of
Gros,
Sally
Gros
Vedros's
Vedros
father,
worked at Avondale as a welder from 1943 to 1976, and Vedros
claims
to
have
spent
many
years
washing
her
father's
work
clothes, which allegedly resulted in Vedros's secondary exposure
to insulation dust containing asbestos. Vedros also worked at
Avondale from 1960 to 1963 in the purchasing department, and she
claims
that
she
was
directly
exposed
to
asbestos
while
she
worked at Avondale.
In
2010,
Vedros
filed
the
present
lawsuit
in
the
Civil
District Court for the Parish of Orleans, naming a number of
parties as defendants. Defendants removed the matter to this
Court on May 20, 2011. Shortly thereafter, on June 3, 2011,
Vedros died from her struggle with mesothelioma. On July 18,
2011, Plaintiffs filed an amended complaint, naming Continental
as
an
additional
defendant.
Continental
is
the
successor
in
interest to Fidelity Insurance Company of New York, who served
as the insurer of Marquette Insulations, Inc., a manufacturer of
products which Plaintiffs allege contained asbestos and to which
Vedros
was
allegedly
exposed,
from
the
period
of
January
1,
1963, to January 1, 1965. (Rec. Doc. 442-1, p. 3) After January
1,
1965,
until
its
bankruptcy
and
ultimate
dissolution,
Marquette was insured by Maryland Casualty Company (“Maryland
Casualty”).
(Rec.
Doc.
442-1,
p.
3)
Because
Marquette
was
dissolved at the time of the filing of this lawsuit, Plaintiffs
named both Continental and Maryland Casualty as direct action
2
defendants pursuant to Louisiana’s Direct Action Statute, La.
Rev. Stat. § 22:1269. (Rec. Doc. 442-1, p. 3)
Prior to Vedros’s death, the parties in this matter took
her deposition two times. Both the discovery deposition and the
perpetuation
deposition
were
conducted
on
February
7,
2011,
shortly before this matter was removed, and several months prior
to
Plaintiffs’
filing
of
their
amended
complaint
naming
Continental as a defendant. Although Continental was not present
at either of these depositions, Maryland Casualty attended and
participated in both depositions. (Rec. Doc. 462, p. 2).
Continental has filed the instant motion requesting that
the Court exclude at trial Vedros’s deposition testimony as it
relates to Plaintiffs’ claims against Continental and Marquette,
on
the
basis
that
the
testimony
constitutes
inadmissible
hearsay. (Rec. Doc. 442)
PARTIES’ ARGUMENTS
Continental
first
notes
that
Vedros’s
depositions
were
conducted several months before it was even a party to this
lawsuit, and as such, it had no notice or reason to attend the
depositions.
Because
Continental
was
not
constitutes
hearsay,
Vedros’s
testimony
present,
Continental
which
does
not
fall
was
taken
asserts
under
any
while
that
it
hearsay
exception. Specifically, Continental disputes that the testimony
may be considered admissible as “former testimony” pursuant to
3
Federal
Rule
of
Evidence
804(b)(1).
This
rule
allows
the
admission of testimony which was given during a deposition when
it is being introduced against a party whose “predecessor in
interest” had an opportunity and similar motive to develop the
testimony
Casualty,
through
the
providing
cross-examination.
insurance
coverage
company
to
who
Marquette,
Even
though
succeeded
was
Maryland
Continental
present
at
in
both
depositions, Continental argues that Marquette did not share a
“similar
motivation”
Continental
asserts
to
develop
Vedros’s
testimony.
while
Maryland
Casualty
that
Instead,
may
have
attempted, like Continental, to show that Vedros was not exposed
to asbestos through Marquette’s products, it alternatively would
have sought to prove that any such “exposure occur[ed] during
Continental’s policy periods rather than its own,” and was thus
“incentivized to impute liability” to Continental. (Rec. Doc.
442-1, p. 9) Because of these conflicting interests, Continental
disputes
that
the
parties
shared
a
“similar
motivation”
to
develop Vedros’s testimony, and the testimony should thus be
excluded as inadmissible hearsay. Continental also argues that
Plaintiffs are prohibited from introducing Vedros’s deposition
testimony in lieu of her live testimony, because the deposition
does
not
involve
“the
same
subject
matter
between
the
same
parties or their successors in interest” as required by Federal
Rule of Civil Procedure 32. (Rec. Doc. 442-1, p. 14)
4
In response, Plaintiffs argue that Vedros’s testimony is
admissible through three independent hearsay exceptions. First,
Plaintiffs reject Continental’s arguments, and assert that the
testimony
is
admissible
pursuant
to
Rule
804(1)
as
former
testimony. Plaintiffs note that while the motives of Continental
and
Maryland
Casualty
may
not
be
identical,
which
is
not
required by Rule 804(b)(1), they are sufficiently similar as to
warrant
submit
admissibility
that
the
of
the
testimony
testimony.
is
Second,
admissible
Plaintiffs
pursuant
to
Rule
804(b)(2), which allows for the introduction of statements made
under a belief of imminent death. Plaintiffs note that Vedros’s
depositions
were
conducted
less
than
four
months
prior
to
Vedros’s death, at which time she was aware of the fatal nature
of
the
disease
from
which
she
suffered.
Third,
Plaintiffs
contend that the testimony is admissible pursuant to Rule 807,
known as the residual hearsay exception, which allows for the
admissibility of hearsay when such relates to a material fact
and
contains
addition,
sufficient
Plaintiffs
guarantees
maintain
that
of
even
trustworthiness.
if
the
Court
In
deems
Vedros’s testimony inadmissible, it should determine pursuant to
Rule 703 that Plaintiffs’ experts may rely on the facts and data
contained in the testimony in developing their expert reports
and opinions.
5
In reply, Continental again asserts that Continental and
Maryland Casualty’s motives in developing Vedros’s testimony are
not
sufficiently
testimony.
similar
Continental
as
to
also
warrant
disputes
admissibility
admissibility
of
of
the
the
testimony pursuant to Rules 804(B)(2) or 807, and contests that
Plaintiffs’ experts may rely on the testimony.
DISCUSSION
Rule 804(b)(1) of the Federal Rules of Evidence provides
for the admissibility of former testimony, so long as such:
(A) was given as a witness at a trial, hearing, or
lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who had – or in a
civil case, whose predecessor in interest had – an
opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
FED.
R.
EVID.
“predecessor
804(b)(1).
in
In
interest,”
determining
the
U.S.
what
Fifth
constitutes
Circuit
Court
a
of
Appeals employs a “similarity of motive” test, thereby combining
the element of “predecessor in interest” with that of “similar
motive.” See United States v. McDonald, 837 F.2d 1287, 1292 (5th
Cir. 1988).
The
Fifth
Circuit
has
previously
clarified
that
the
“similar motive” requirement of Rule 804(b)(1) “does not mean
identical
motive.”
Battle
ex
rel.
Battle
v.
Mem’l.
Hosp.
at
Gulfport, 228 F.3d 544, 552 (5th Cir. 2000)(citing United States
v. Salerno, 505 U.S. 317, 326, 112 S.Ct. 2503 (1992)). Instead,
6
in
order
for
parties’
motives
to
be
considered
“similar”
as
envisioned by Rule 804(b)(1), the parties must be “on the same
side of the same issue at both proceedings” and must also have
“a substantially similar interest in asserting and prevailing on
the issue.” Id. (citing United States v. DiNapoli, 8 F.3d 909,
912 (2nd Cir. 1993)).
Continental
firmly
denies
that
Maryland
Casualty,
which
insured Marquette during a at a different time, qualifies as its
“predecessor
in
interest”
in
this
matter
because
it
lacked
similar motive to develop Vedros’s testimony. Despite the fact
that
both
interest
parties,
in
as
proving
insurers
that
of
Vedros
Marquette,
was
not
have
exposed
a
primary
to
asbestos
through Marquette’s products, Continental asserts that “Maryland
Casualty’s interest are completely different from Continental’s
interests
as
it
occurred.”
(Rec.
relates
Doc.
to
442-1,
when
p.
8)
the
Marquette
Specifically,
exposure
Continental
submits that at the deposition, Maryland Casualty would have
been
seeking
asbestos
Marquette’s
Continental
to
develop
exposure
Vedros
products
was
Vedros’s
may
occurred
providing
testimony
have
show
that
experienced
during
Marquette’s
to
the
time
insurance
any
through
in
which
coverage,
as
opposed to when Maryland Casualty was providing the insurance
coverage. However, as noted by Plaintiffs, in both its motion
and
reply,
Continental
has
not
7
cited
to
any
portion
of
the
deposition testimony in which it appears that Maryland Casualty
sought to elicit testimony from Vedros to show that her exposure
occurred during Continental’s coverage period. Plaintiffs argue
that Maryland Casualty qualifies as Continental’s “predecessor
in
interest”
and
possessed
a
“similar
motive”
to
develop
Vedros’s testimony.
While not identical, the Court finds the motives of both
Continental
and
Maryland
Casualty
in
developing
Vedros’s
testimony to be sufficiently similar to warrant the application
of Rule 804(b)(1). See Clay v. Johns-Manville Sales Corp., 722
F.2d 1289, 1295 (6th Cir. 1983). Certainly Maryland Casualty had
a similar interest in prevailing on the issue of Marquette’s
liability. See Battle, 228 F.3d at 552 (citing DiNapoli, 8 F.3d
at 912). Continental’s inability to cite to any part of Vedros’s
deposition
testimony
in
which
Maryland
Casualty
actually
attempts to deflect liability by showing that any exposure to
Marquette’s
Continental’s
asbestos-containing
policy
period
products
rather
than
occurred
its
own
during
further
satisfies the Court of the propriety of its position. Because
both Continental and Maryland Casualty had a primary motive to
develop Vedros’s testimony to show that she was never exposed to
asbestos through Marquette’s products, the requirements of Rule
804(b)(1) are satisfied, and Vedros’s deposition testimony is
admissible at trial.
8
Continental also argues that Plaintiffs’ use of Vedros’s
deposition testimony at trial is prohibited by the Federal Rules
of Civil Procedure. Continental notes that although Federal Rule
of
Civil
Procedure
32(a)
allows
for
the
use
of
deposition
testimony in lieu of live testimony in circumstances where the
witness is no longer available to testify, this is limited to
matters in which the deposition “involve[s] the same subject
matter
between
the
same
parties
or
their
successors
in
interest.” (Rec. Doc. 442-1, p. 14) However, in describing this
Rule,
Continental
fails
to
acknowledge
the
full
text
of
the
provision allowing for the use of prior depositions. While Rule
32(a)(8) does impose a requirement that the deposition involve
the same subject matter and same parties as the current trial,
it also allows for the use of deposition testimony at trial when
such is “allowed by the Federal Rules of Evidence.” FED. R. CIV.
P. 32(a)(8). Accordingly, because the Court has determined that
Vedros’s deposition is admissible pursuant to the Federal Rules
of Evidence, it is not necessary that the deposition involve all
defendants made party to the lawsuit.
Because Vedros’s deposition testimony is admissible against
Continental pursuant to Rule 804(b)(1), it is unnecessary to
consider
whether
admissibility
804(b)(2)
or
Moreover,
807.
is
warranted
Plaintiffs’
9
expert
under
Rules
witnesses
are
entitled to rely on Vedros’s testimony in compiling their expert
reports and opinions. Accordingly,
IT IS HEREBY ORDERED that Continental’s Motion in Limine to
Exclude Deposition Testimony of Sally Gros Vedros (Rec. Doc.
442) is DENIED.
New Orleans, Louisiana this 18th day of June, 2015.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
10
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