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Kirk v. Raymark Indus., Inc. - 61 F.3d 147 (3d Cir. 1995)

Rule:

Admission of testimony given by an unavailable witness as a witness at another hearing of the same or a related proceeding, or in a deposition taken in compliance with law in the course of such other proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination is not barred by Fed. R. Evid. 804(b)(1)

Facts:

Alfred Kirk, a retired painter, died from malignant asbestos-induced mesothelioma. Kirk’s widow (Kirk) suing on behalf of herself and her deceased husband's estate, filed this diversity action against eight defendants, one of which is was Owens-Corning. Kirk alleged that her husband's mesothelioma was caused by exposure to dust from asbestos products during his employment at the New York Shipyard in Camden, New Jersey, during the late 1950's and early 1960's. Based on a jury's verdict, the trial court granted judgment, including delay damages, in favor of Kirk. On appeal, Owens-Corning argued that the trial court erred in refusing two juror challenges for cause, requiring corporation to waste two of its peremptory strikes, and in admitting the prior testimony of a witness in an unrelated state court trial and the interrogatory of a settled co-defendant.

Issue:

Was admission of the prior testimony of a witness valid in an unrelated state court trial?

Answer:

No.

Conclusion:

The Court held that the admission of the prior testimony of a witness in an unrelated state court trial was error because none of the hearsay exceptions were applicable. Admission of the interrogatory of a settled co-defendant was error because it was hearsay, lacked trustworthiness, and wife failed to comply with the advance notice requirement of Fed. R. Evid. 803(24)The two jurors should have been struck for bias, requiring a per se reversal without the need to prove prejudice. Lastly, the award of delay damages was proper because corporation failed to make a settlement offer that would satisfy law.

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