Supreme Court of Ohio Applies Strict Limits to Hearsay Exception for Former Testimony

Posted on September 3rd, 2014 by Matthew C. O’Connell

The Supreme Court of Ohio today issued its Opinion in Burkhart v. H.J. Heinz Co. (OSC 2014-Ohio-3766), interpreting the hearsay exception of Ohio’s Evidence Rule 804(B)(1).  With this Opinion, the use of former testimony of a now-unavailable witness in a subsequent proceeding has been severely limited.

The underlying facts of the case are as follows:  Mr. Burkhart was a long-time employee of the H.J. Heinz Company from 1946 until his retirement in 1986.  Part of his work responsibilities included maintenance in the boiler room at one of the Heinz plants.  Mr. Burkhart was diagnosed in 2005 with pleural mesothelioma and soon thereafter, filed a products liability case in Cuyahoga County against various manufacturers and suppliers of asbestos containing products to which he was allegedly injuriously exposed.  He did not sue Heinz.  Mr. Burkhart gave a videotaped deposition in which he identified areas in his workplace where he was allegedly exposed to asbestos-insulated equipment in the 1940’s.  He also testified that management at Heinz identified the materials in the boiler room as asbestos-containing.  Mr. Burkhart died in May, 2007.

Two years later, in May, 2009, Mr. Burkhart’s widow filed a claim for death benefits with the Ohio Bureau of Workers’ Compensation.   When her claim was denied, she appealed to the Wood County Court of Common Pleas and Heinz moved for summary judgment.  In response, Mrs. Burkhart filed the transcripts of the videotaped deposition given by her husband in the products liability case.

The trial court struck Mr. Burkhart’s deposition from the record on the basis that Heinz, or a predecessor-in-interest, was not involved in Mr. Burkhart’s products liability case and, accordingly, the hearsay exception contained in Evidence Rule 804(B)(1) did not apply.  Absent that evidence, the trial court concluded the testimony of Mr. Burkhart’s co-workers that he “might have been exposed” to asbestos at the Heinz plant was insufficient to create a genuine issue of material fact.  On appeal to the Sixth District, the Court of Appeals reversed – holding that the defendant manufacturers in the products liability case were, in fact, aligned in interest with Heinz.

The Supreme Court reversed and remanded the case back to the trial court.   Rejecting a “community of interest” approach, the Court held that the motives of the asbestos defendants in the tort case were not aligned with Heinz.   Heinz’ interest was to show that Mr. Burkhart was not exposed to asbestos in the workplace, whereas the manufacturers’ interest was to show that their products were not present at Heinz or were insufficient to cause injury.   Heinz argued there were several areas of inquiry it would have pursued had it cross-examined Mr. Burkhart at his deposition—but of course Heinz wasn’t there.

Interpreting Evidence Rule 804(B)(1), the Supreme Court noted that prior testimony of a now-unavailable declarant is not excluded as hearsay in a subsequent proceeding when that party or a predecessor-in-interest had the opportunity to cross-examine the declarant in the prior proceeding  and that party or predecessor had a motive to develop the former testimony similar to the motive of the party in the present proceeding.  Significantly, the Court stated:

“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’.”

Today’s decision contains a stated departure from interpretations of the analogous Federal rule, which have held that neither privity nor common property interests are required to establish a predecessor-in-interest relationship where a shared interest in the material facts and outcome of the case is sufficient to admit former testimony. With this case,  Ohio now takes a much stricter approach concerning the admissibility of former testimony of a now-unavailable witness in a subsequent proceeding.