Salamander’s Wool: Supreme Court of Ohio Refuses to Apply Former Testimony Exception in Asbestos Case Against Heinz

Similar to its federal counterpart, Ohio Rule of Evidence 804(B)(1) provides an exception to the rule against hearsay for

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 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….

So, what exactly qualifies as a “predecessor in interest” under this “former testimony” exception? Many federal courts have interpreted the federal exception to cover even parties related by neither privity nor common property interests. See, e.g., Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd Cir. 1978). But how far did the Supreme Court of Ohio go in Burkhart v. H.J. Heinz Co., 2014 WL 4358396 (Ohio 2014)?

In Burkhart, Mary Lou Burkhart filed a claim against H.J. Heinz seeking workers’ compensation death benefits for her deceased husband, Donald Burkhart, who developed mesothelioma due to asbestos exposure at the workplace. Donald had given deposition testimony in a products-liability action he had previously filed against various asbestos manufacturers, but he did not sue H.J. Heinz as part of that lawsuit.

Burkhart sought to admit this deposition testimony at trial under Ohio Rule of Evidence 804(B)(1), but the trial court deemed the testimony inadmissible and granted Heinz’s motion for summary judgment. The Court of Appeals then reversed, prompting Heinz to appeal to the Supreme Court of Ohio.

On appeal, Mary Lou Burkhart defended the opinion of the Court of Appeals by citing Lloyd “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 note[d] the Sixth Circuit Court of Appeals and other Ohio intermediate appellate courts have adopted this view.”

In response, the Supreme Court of Ohio traced the “former testimony” exception to its common law origins and concluded that the exception historically required privity for a former party to qualify as a “predecessor in interest.” The court then found that Ohio Rule of Evidence 804(B)(1)

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.”

The court did 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).” But the court held that this precedent was neither binding nor 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….

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.

-CM