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Andrew Cowley, et al. v. Transferred From the District of Maryland Acands

December 23, 2010

ANDREW COWLEY, ET AL. PLAINTIFFS,
v.
TRANSFERRED FROM THE DISTRICT OF MARYLAND ACANDS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

CONSOLIDATED UNDER

MEMORANDUM

This is an asbestos personal injury case. Before the Court is the Motion for Summary Judgment of Defendant MCIC, Inc. f/k/a McCormick Asbestos Co. ("MCIC"). The issues to be addressed by the Court include: (1) whether a deposition of a witness taken in a prior action is admissible against a party in a later action who was not a party in the earlier action, and (2) whether Plaintiff has presented sufficient evidence that Andrew Cowley was exposed to asbestos-containing products supplied by MCIC on a frequent and regular basis. Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. The issue of the admissibility of depositions in the federal courts is a matter of procedure and thus is controlled by federal law. See King v. E.I. Dupont De Nemours & Co., No. 875, 2010 WL 3419572 at *2-3 (E.D. Pa. Aug. 25, 2010) (citing Hanna v. Plumer, 380 U.S. 460, 471-72). The sufficiency of the evidence on the issue of asbestos exposure and product identification is a matter of substantive law and thus is controlled, in this case, by Maryland law. Id.

An often repeated scenario in personal injury asbestos litigation involves the admissibility of deposition testimony taken in an earlier action against a defendant who was not a party to the earlier litigation. This is understandable given the long latency period of various diseases caused by exposure to asbestos fibers. Under the circumstances, the plaintiff may be deceased and the testimony of a co-worker in an earlier action may constitute the sole product identification evidence. The answer to the question admittedly is not clear cut and ultimately, the admissibility of such deposition testimony depends largely upon whether, at the time the deposition was taken, the interests of the defendant in the earlier litigation could be considered aligned with the interests of the defendant in the present case against whom the deposition is being offered.

I. Facts

Mr. Cowley brought suit against various defendants,

including MCIC, alleging occupational asbestos exposure. (Def.'s Mot. Summ. J., doc. no. 24 ¶ 1). MCIC was primarily an insulation contractor. (Def.'s Mot. Summ. J., doc. no. 27 at 2). This case was transferred to the Eastern District of Pennsylvania as part of MDL 875 on February 13, 2007. (Transfer Order, doc no. 1). Mr. Cowley was deposed on January 9, 1986 and on August 4, 1998, but MCIC was not present at either deposition. (Def.'s Mot. Summ. J. at 6). Both depositions were taken in a prior unrelated asbestos case where Mr. Cowley was testifying as a co-worker of another asbestos plaintiff. (Transcript of Oral Argument at 9, Cowley v. ACANDS, Inc., (E.D. Pa. Dec. 7, 2010)).

Mr. Cowley began working at the Bethlehem Steel Key Highway Shipyard on January 21, 1941 as a welder and burner. (Pl.'s Reply Br., doc. no. 28 at 14; Cowley Depo., doc. no. 28-1 at 9). From 1942 until 1945, Mr. Cowley served in the U.S. Army. (Cowley Depo. at 11). He then resumed working as a welder and burner at the Bethlehem Steel Key Highway Shipyard until he retired in 1982. (Id.). Mr. Cowley spent approximately 85% of his time working aboard the ships and the remaining 15% of the time working in the shipyard's shop. (Id. at 10).

Plaintiff offers the testimony of Harry Myers, who worked at the Bethlehem Steel Key Highway Shipyard as a pipefitter from 1964 until 1981. Mr. Myers' deposition was taken in a prior unrelated asbestos case and MCIC was present for the deposition.*fn1

Mr. Myers testified that several outside contractors, including MCIC, were used to perform pipe-covering or lagging. (Pl.'s Reply Br., at 17; Myers Depo. at 8-13). Mr. Myers testified that McCormick was one of the contractors installing new asbestos pipe-covering on the Calmar line. (Pl.'s Reply Br. at 17-18). However, Mr. Myers was not asked and, therefore, did not testify as to whether he witnessed Mr. Cowley working aboard the Calmar line of ships or whether Mr. Cowley worked around MCIC employees aboard these ships.*fn2 Mr. Myers' testimony places MCIC employees working with asbestos aboard the Calmar line of ships, but it does not place Mr. Cowley there. Thus, Plaintiff must rely upon Mr. Cowley's deposition testimony in the earlier action to show that Mr. Cowley worked aboard the Calmar line of ships.

In the earlier action, Mr. Cowley was a witness in a case involving a co-worker. At the deposition, Mr. Cowley testified that from 1969 until 1974, he spent the majority of his time working aboard the Calmar line of ships. (Cowley Depo., doc. no. 28-2 at 60). He worked aboard the Maramar, Penmar, Calmar, Ormar, and Portmar. (Id. at 60-61).

Mr. Cowley also testified that he worked directly with asbestos and that he worked around "laggers"*fn3 who were installing asbestos-containing pipecovering. (Pl.'s Reply Br. at 14-15). When asked whether Mr. Cowley remembered the names of any outside contractors at the Bethlehem Steel Key Highway Shipyard, Mr. Cowley stated, "Wallace and Gayle is the only one I can tell you, but then later on there were other ones that came in, but I don't know their names." (Cowley Depo., doc. no. 28-3 at 95-96). He testified that he was exposed to asbestos while working on these ships, but was not questioned about working near MCIC employees. (Id. at 61-62).

Therefore, the issue becomes whether Mr. Cowley's testimony from the earlier action in which MCIC was not a party may be admitted to show that he was present aboard the Calmar line of ships during the time when Mr. Myers testified that MCIC's employees working with asbestos-containing products were present aboard the Calmar line of ships.

II. Whether a deposition of a witness taken in a prior action is admissible against a party in a later action who was not present for the deposition Federal Rule of Evidence 804(b)(1) provides that if the party offering the evidence establishes that the declarant is deceased, former testimony is not excluded under the general rule disallowing the admission of hearsay.*fn4 Former testimony is [t]estimony 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 ...


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