WILMINGTON, Del. (Legal Newsline) – A Delaware judge won’t change her ruling that allows into evidence statements made by an asbestos plaintiff who died before his case could make it to trial.
Judge Vivian Medinilla ruled Dec. 31 against the request of defendants like Ford Motor Company who are facing an asbestosis lawsuit from the estate of Charles Ogg. They sought the rejection of two affidavits that identified the products with which Ogg worked during his 40 years as a mechanic in Houston.
Medinilla wrote that her decision to allow them is “no game-changer.”
“The Court’s narrow ruling here on the consideration of certain evidence during summary judgment proceedings should not be construed as some broader statement on evidentiary issues for future asbestos trials. It is not,” she wrote.
Ogg executed his second affidavit on Oct. 8, 2014, while in hospice care. He was scheduled for a deposition on Oct. 21, 2014, but died two days before.
Defendants, in moving for summary judgment, called the affidavits inadmissible hearsay, but Ogg’s estate argued they were qualified exceptions. Medinilla rejected the argument that they were “dying declarations” but found they were sufficiently reliable to qualify for an exception.
After that ruling, defendants claimed Medinilla failed to recognize existing case law and asked her to reconsider. She declined.
“Defendants do not argue newly discovered evidence or a change of law,” she wrote. “Instead, Defendants shifted gears at oral argument and engaged a unique, novel, and rather peculiar theory of manifest injustice.
“They ask this Court to reconsider its judgment by arguing that it erred in considering the hearsay issue—an issue they raised and argued—in the first place. This type of argument is simply impermissible under Rule 59.”