Heather Isringhausen Gvillo Sep. 12, 2014, 10:47am

COLUMBUS, Ohio (Legal Newsline) – The Ohio Supreme Court has held that depositions used in asbestos lawsuits cannot also be used in Workers’ Compensation claims if the employer was not a defendant in the tort action.

In its decision, the Supreme Court addressed whether asbestos manufacturers defending a products liability action may be considered predecessors-in-interest with a similar motive to develop the testimony of a claimant as an employer contesting a Workers’ Compensation claim that it had exposed its employee to asbestos.

Justice Terrence O’Donnell delivered the Sept. 3 opinion, reversing the lower court’s judgment that the testimony was admissible in the Workers’ Compensation claim. Justices Sharon L. Kennedy, Judith L. French, William M. O’Neill and Judge Melody Stewart, of the Eighth Appellate District, concurred.

Justice Paul E. Pfeifer dissented, arguing that the majority views the predecessor-in-interest issue in “exceedingly narrow terms.”

“The key issue in this case isn’t whether Heinz did anything wrong, whether intentionally, negligently or in any other way,” Pfeifer wrote,” the issue is simply 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.”

Donald Burkhart worked for H.J. Heinz Company at its ketchup bottling plants from 1946 until 1986. He worked in the boiler room where he alleged he was exposed to asbestos-containing pipe insulation.

Burkhart developed mesothelioma in November 2005 and died in May 2007.

Burkhart filed an asbestos lawsuit but failed to list his employer amongst the named defendants.

After his death, his wife, Mary, filed a claim against Heinz seeking Workers’ Compensation death benefits.

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 Heinz.

The Court of Appeals, however, ruled that a deposition Burkhart provided prior to his death is admissible to prove that Heinz injuriously exposed him to asbestos, concluding that the defendants in the original lawsuit were predecessors-in-interest because they shared similar motives with Heinz.

The Supreme Court disagreed, ruling that the lower court misinterpreted the meaning of predecessors-in-interest.

“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,” O’Donnell wrote. “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.”

He explained that the term predecessor-in-interest is generally used interchangeably with the phrase “persons in privity,” meaning a party’s privy had the opportunity to cross examine a claimant in the prior proceeding.

In this case, however, Heinz was unable to cross examine Burkhart during his deposition and did not have a privy present at the prior deposition to provide a cross examination.

“It is, therefore, not enough that a prior litigant had an opportunity and similar motive to develop the testimony,” O’Donnell wrote. “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 responsible for the manner with which the witness was handled by another party.’”

Furthermore, the Supreme Court disagreed that the parties had a similar motive as Heinz to develop Burkhart’s testimony. The asbestos defendants from the original lawsuit sought to prove he was not exposed to asbestos in its products, but did not seek to dispute any alleged exposure at the Heinz facilities.

“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,” O’Donnell stated.

In fact, “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,” he added.

Therefore, the court ruled that the transcript from the deposition testimony may not be used against Heinz in the Workers’ Compensation case.

Pfeifer, however, said there is no way for the majority to know if they are correct in assuming the defendants’ motives without assessing every question that each of the defendants asked during cross-examination of Burkhart, which would be impossible.

“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,” he wrote in his dissent. “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.”

Pfeifer argued that the majority believes that each defendant focused exclusively on pointing fingers at other defendants.

“But surely each and every one of the defendants would have argued that there was no workplace exposure to asbestos if that had been a credible argument,” he wrote. “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.”

“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,” he added.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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