In Kardos v. Armstrong Pumps Inc. et al., 2019 PA Super 324, the Superior Court of Pennsylvania recently ruled that where a party is given the opportunity to cross-examine a witness who later becomes unavailable due to his death, such testimony meets the hearsay exception and is admissible evidence.

Decedent Nicholas Kardos was diagnosed with mesothelioma in January 2016. On March 10, 2016, Mr. Kardos filed a lawsuit against numerous manufacturers, suppliers, and users of asbestos products. In September 2016, Mr. Kardos executed an affidavit related to his work history and exposures to asbestos, after a site visit of a prior worksite. In October 2016, Mr. Kardos was deposed over three days, including cross-examination by defendants regarding his work history and exposures to asbestos containing products. Mr. Kardos passed away on November 3, 2016, before any party re-noticed the deposition.

Subsequent to Mr. Kardos’ death and at the motion for summary judgment stage, five defendants, all of which were present at the deposition but only two of which cross-examined Mr. Kardos, moved to preclude Mr. Kardos’ deposition testimony and affidavit, arguing that this evidence was inadmissible hearsay. The Allegheny County Court entered an order precluding Plaintiff from using the affidavit and testimony in response and opposition to defendants’ motions for summary judgment. The court ultimately granted summary judgment in favor of defendants based on lack of product identification or lack of regular and frequent exposure to certain defendants’ products, and Plaintiff appealed. Plaintiff argued that the Court should have considered the deposition and affidavit as part of the summary judgment evidence, that the deposition testimony was an exception to hearsay, and that, at the very least, the Court should have permitted the use of the deposition against the defendants that concluded their cross-examination of Decedent.

The issues presented to the Superior Court were: (1) was Mr. Kardos’ affidavit and deposition improperly excluded at summary judgment stage; and (2) was the deposition of Mr. Kardos admissible at trial?

In ruling on these issues, the Superior Court held that Mr. Kardos’ affidavit should have been part of the record for the summary judgment proceedings as it was signed subject to penalty, based on personal knowledge, and consistent with his deposition testimony. Further, Mr. Kardos’ deposition testimony should have been part of the record for summary judgment proceedings because a non-movant is entitled to use hearsay in opposition to a movant’s motion.  See Petrina v. Allied Glove Corp., 46 A.3d 795, 799 (Pa. Super. 2012). Finally, the court held that the Decedent’s testimony could be used at trial, as a hearsay exception, since the witness was unavailable and the defendants had the opportunity to develop any testimony at his deposition. See Pa. R. E. 804(b)(1)(B); Pa.R. C. P. 4020(a)(3)(a). Of note, the defendants all attended Mr. Kardos’ deposition, there was no indication that the deposition completed, and neither party attempted to re-notice the deposition for a fourth day.  Because the defendants were present at the deposition, and therefore afforded the opportunity to cross-examine the witness, and develop his testimony, the Superior Court found that the testimony was admissible and preclusion of the testimony was prejudicial to Plaintiff as Plaintiff could not oppose summary judgment on the lack of product identification.

Taking a lesson from the Superior Court, toxic tort litigators in Pennsylvania should carefully consider their deposition strategy. When given the opportunity to cross-examine a witness to close out testimony, this decision specifies that a litigator must take it or risk undeveloped testimony barring that party’s possible success at summary judgment.