Court Allows Defendants’ Experts’ Testimony on Alternative Exposure, as Well as Decedent’s Testimony Against Defendant Who Had Not Been Sued Prior to Decedent’s Deposition and Death
In two separate decisions in this federal court case, the plaintiffs brought a motion to preclude the defendants’ experts, Danny Joyce and Dennis Paustenbach, while the defendant, Continental Insurance Company, moved to exclude the deposition testimony of decedent, Sally Gros Vedros. The plaintiffs allege that the decedent was exposed to asbestos from laundering her father’s clothes while he worked as a welder at the Avondale shipyard from 1943-1976 and from her own work at Avondale in the purchasing department from 1960-1963. The defendants disclosed experts Joyce and Paustenbach to prove alternative exposure to asbestos that the decedent had through her father’s other work and through her own exposure. The plaintiffs were challenging the experts on lack of factual basis for their opinions. The court denied the plaintiffs’ motion, holding: “The crux of Plaintiffs’ arguments with regard to both experts seems to be that they lack a factual basis for their opinions. Further, Plaintiffs seem to be arguing the merits of their case rather than the admissibility of the evidence. The Court finds that the issues that Plaintiffs raise relating to the basis and sources of Joyce and Paustenbach’s opinions should be left to the jury. See 14.38 Acres of Land, 80 F.3d at 1077. Plaintiffs may expose the alleged weaknesses in the opinions of Joyce and Paustenbach through cross examination and our adversarial system. See Daubert, 509 U.S. at 596. The Court will not preclude testimony of Joyce and Paustenbach.”
Regarding the preclusion of the decedent’s deposition testimony, Continental claimed the testimony was inadmissible hearsay as the testimony taken in both the discovery and perpetuation depositions was taken prior to Continental being brought into the case. Continental is the successor in interest to Fidelity Insurance Company of New York, who served as the insurer of Marquette Insulations, Inc., the manufacturer of products which the plaintiffs allege contained asbestos and to which decedent was allegedly exposed, from the period of January 1, 1963, to January 1, 1965. After January 1, 1965, until its bankruptcy and ultimate dissolution, Marquette was insured by Maryland Casualty Company. Because Marquette was dissolved at the time of the filing of this lawsuit, the plaintiffs named both Continental and Maryland Casualty as direct action defendants pursuant to Louisiana’s Direct Action Statute, La. Rev. Stat. § 22:1269. Maryland was present at and participated in both depositions.
Despite Continental’s argument to the contrary, the court found that Fed. R. Evid. 804(b)(1) applied and held: “While not identical, the Court finds the motives of both Continental and Maryland Casualty in developing Vedros’s testimony to be sufficiently similar to warrant the application of Rule 804(b)(1). Certainly Maryland Casualty had a similar interest in prevailing on the issue of Marquette’s liability. Continental’s inability to cite to any part of Vedros’s deposition testimony in which Maryland Casualty actually attempts to deflect liability by showing that any exposure to Marquette’s asbestos-containing products occurred during Continental’s policy period rather than its own further satisfies the Court of the propriety of its position. Because both Continental and Maryland Casualty had a primary motive to develop Vedros’s testimony to show that she was never exposed to asbestos through Marquette’s products, the requirements of Rule 804(b)(1) are satisfied, and Vedros’s deposition testimony is admissible at trial.”
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