The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge
AND NOW, this 3rd day of June, 2011, upon consideration of the Motion to Exclude the Deposition of Emmett Wingfield, III (Doc. 93) filed by John Crane, Inc.,*fn1 and joined by Warren Pumps, Inc. (Doc. 119), General Electric Co. (Doc. 129), Georgia Pacific Corporation (Doc. 139) and Crane Co.,*fn2 (John Crane, Inc., Warren Pumps, Inc., General Electric Co., Georgia Pacific Corporation and Crane Co. hereinafter collectively referred to as the "Moving Defendants") and plaintiff's response thereto (Doc. 124), it is hereby ORDERED that the motion is GRANTED with respect to the Moving Defendants.
Plaintiff filed an action in the Superior Court of Fulton County, Georgia, on July 3, 2003, alleging injuries to Emmett Wingfield, III, caused by his occupational exposure to asbestos-containing products manufactured, sold and/or supplied by the various defendants in this case. Mr. Wingfield was deposed on July 25 and August 1, 2003. The deposition on July 25, 2003 was a videotaped, direct examination conducted by plaintiff's counsel. This deposition was taken prior to a discovery deposition. At the end of the videotaped deposition, defense counsel objected to the use of the videotaped deposition at trial unless and until the defendants conducted a cross-examination of Mr. Wingfield through a discovery deposition as well as a videotaped cross-examination. A partial discovery deposition was conducted on August 1, 2003, but, due to Mr. Wingfield's deteriorating condition, it was adjourned before the defendants completed the cross-examination. See Doc. 124, Ex. B at 80-85. Mr. Wingfield passed away on August 4, 2003. (Doc. 124, Ex. B.)
The Moving Defendants assert that Mr. Wingfield's videotaped deposition testimony should be excluded because it is inadmissible hearsay.*fn3 Federal Rule of Civil Procedure 32 provides an exception to the hearsay rule and permits the use of deposition testimony at trial if, inter alia, the deposition would be admissible under the Federal Rules of Evidence if the deponent were present and testifying. Fed. R. Civ. P. 32(a)(1)(B).
Furthermore, Federal Rule of Evidence 804(b)(1) provides that, as an exception to the hearsay rule, former testimony of an unavailable witness is admissible if it 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 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.
The Third Circuit has explained that "[i]n order for former testimony to be admissible as an exception to the hearsay rule: (1) the declarant must be unavailable; (2) testimony must be taken at a hearing, deposition, or civil action or proceeding; and (3) the party against whom the testimony is now offered must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164 (3d Cir. 1995). The first and second prongs of the test are not at issue in this case. The only issue before the court is whether the Moving Defendants had an opportunity to develop Mr. Wingfield's testimony by cross-examination.
Mr. Wingfield's deposition testimony does not qualify under this hearsay exception because the Moving Defendants simply did not have the opportunity to cross-examine Mr. Wingfield prior to his death. See Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487, 503 (D. Del. 2005) (finding the deposition testimony at issue admissible under Rule 804(b)(1) as former testimony because the testimony had guarantees of trustworthiness as it was given under oath and defendants had the opportunity to test the accuracy of the deponent's statements). See also U.S. v. King, 713 F.2d 627, 630 (11th Cir. 1983) ("In order for Rule 804(b)(1) to apply the opportunity to cross-examine must be 'adequate,' or 'meaningful'; however, it need not be unbounded.").
The record shows that the July 25, 2003 videotaped deposition commenced at 9:54 a.m. (Doc. 124, Ex. A at 15.) At the time of the deposition, Mr. Wingfield was on a variety of medications for his illness. Mr. Wingfield's counsel questioned Mr. Wingfield until 10:20 a.m., when a twenty minute break was taken. (Doc. 124, Ex. A at 42.) After the break, it was noted that Mr. Wingfield was offered morphine for his pain, but he declined to take it. Id. at 42. The deposition continued for approximately fifty more minutes, but then adjourned for a ninety minute lunch break. Id. at 107-08. When the parties reconvened the deposition, Mr. Wingfield's counsel stated that Mr. Wingfield's family and his hospice nurse advised the parties that Mr. Wingfield "has had about enough today." Id. at 108. Counsel spent the next ten minutes placing defense objections on the record. Id. at 108-16. Defense counsel objected to the use of the videotaped deposition at trial, in part, because no opportunity for discovery deposition had been provided prior to the trial deposition. Id. at 113. The direct videotaped deposition was adjourned at 1:16 p.m. Id. at 117.
Subsequently, the discovery deposition was conducted on August 1, 2003. See Doc. 124, Ex. C at 48-85.*fn4 At the commencement of the deposition, Mr. Wingfield was asked if he was capable of testifying:
Q. Mr. Wingfield, did you take some medication this morning with regard to your health?
A. I think I took one pill, but I can't tell ...