Asbestos Case Involves Rules for Testimony and Exclusion

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

(1) The facts set forth in the petition show the desire to perpetuate testimony is based upon a reasonable belief that there is a substantial possibility that the person whose testimony is sought will die or be too incapacitated to testify before a contradictory hearing can be held; and
(2) The interest of justice requires the immediate perpetuation of the testimony.

Opposing counsel argued that the deposition was not admissible in trial because they never had the opportunity to cross-examine the witness. The district court admitted the full video deposition, and the case was reviewed by the Supreme Court. On May 8, 2012, the Supreme Court ruled that most of the deposition was inadmissible because, under the Louisiana Code of Civil Procedure article 1450, for a deposition taken to perpetuate testimony to be admissible where the witness is unavailable at trial, “the party against whom it is being used or with similar interests to that party must have been given the opportunity to cross-examine the witness.” The court asserted that “the necessity of an opportunity for cross-examination is evident from the notice provisions of La. C.C.P. art. 1430, which provide that if a party cannot be given timely notice of a de position to perpetuate testimony, the court must appoint an attorney to represent that party who “shall cross examine the deponent.”

In this case, the opposing party did not have an opportunity to cross, thus the Court explained that the deposition is inadmissible hearsay unless it fell within one of the hearsay exceptions. Here, the Court stated that most of the deposition did not qualify as a hearsay exception and that, particularly, none of the testimony met the “dying declaration” exception, since the deposition was not taken when Mr. Trascher believed his death was “imminent.”

The only part that the Court found admissible was the portion of the video in which Trascher is asked and answers the question “today how do you feel?” The court explained that his answer met the Louisiana Code of Evidence article 803(3) exception to hearsay, which allows the admission of a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or his future action. The Court stated that this line of question and answer reflected Trascher’s “then existing mental, emotional, or physical condition and is offered to prove his then existing condition, which is highly relevant in a wrongful death and survival claim.”

In the end, this case demonstrates that legal conditions are very stringent and important to follow. While many of the elements that were deemed inadmissible would have been difficult, possibly impossible, to do differently, this situation reminds why hiring counsel that are versed in these topics.

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