Rich v. Kaiser Gypsum Co.
2012 Fla. App. LEXIS 18519, 2012 WL 5232177, 103 So.3d 903 (2012)
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Rule of Law:
Under Florida Statute § 90.804(2)(a), the term 'predecessor in interest' for the admission of former testimony does not require strict legal privity. Instead, it is satisfied by a showing that a party in the prior proceeding had a similar motive and opportunity to develop the witness's testimony regarding the same material facts.
Facts:
- In 1957, Fred and Abbey Rich moved into a home in Brooklyn, New York, near a service road used by large trucks.
- The vibrations from the trucks caused a crack to form in a wall of their home.
- In the late 1960s, Fred Rich repaired the wall with a sheetrock board made by Kaiser Gypsum, using Kaiser Gypsum’s powdered joint compound to seal it.
- Rich continued to patch the recurring crack with the Kaiser Gypsum powdered joint compound once or twice a year through the 1960s.
- In the early 1970s, Rich switched to using 'GP Ready-Mix,' a pre-mixed joint compound manufactured by Georgia Pacific.
- During each repair, Rich would sand the joint compound, creating dust that he inhaled.
- Decades later, after retiring to Florida, Fred Rich was diagnosed with mesothelioma, a cancer linked to asbestos exposure.
Procedural Posture:
- Fred Rich filed suit in a Florida trial court against Kaiser Gypsum, Union Carbide, and R.T. Vanderbilt, alleging their asbestos products caused his mesothelioma.
- During the trial, defendants Union Carbide and Kaiser Gypsum moved to introduce deposition testimony from two unavailable witnesses, which had been taken in prior, unrelated asbestos lawsuits.
- The Riches objected, arguing that the plaintiffs in the prior cases were not their 'predecessors in interest' under the Florida Evidence Code, and thus the testimony was inadmissible hearsay.
- The trial court overruled the objections and allowed portions of the depositions to be read to the jury.
- The jury returned a verdict for the defendants, finding them not liable.
- Abbey Rich, as personal representative of her late husband's estate, appealed the final judgment to the Florida Fourth District Court of Appeal.
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Issue:
Under Florida Statute § 90.804(2)(a), does the term 'predecessor in interest,' for the purpose of admitting former testimony of an unavailable witness, require strict legal privity or is it satisfied when a party in the prior proceeding had an opportunity and similar motive to develop the testimony?
Opinions:
Majority - Rosenberg, Robin L.
No. The term 'predecessor in interest' under Florida's former testimony hearsay exception does not require strict privity; it is satisfied where a party in the prior proceeding had a 'sufficient community of interest' and a similar motive to develop the testimony as the current party. The court, finding the federal courts' interpretation of the nearly identical Federal Rule of Evidence 804(b)(1) persuasive, held that the legislative change from 'privy' to 'predecessor in interest' signaled an intent to move away from a strict privity requirement. The proper analysis focuses on whether the previous party had a 'like motive to develop the testimony about the same material facts.' Applying this standard, the court found the plaintiff in the 'Kavanaugh' case was a predecessor in interest to Rich because both cases involved the same defendant, product, ingredient, and injury, creating a similar motive to cross-examine the witness about the defendant's asbestos use. Conversely, the court found it was likely error to admit testimony from the 'Rendle' case because the products at issue were different (powdered vs. pre-mixed compound), which would preclude a similar motive for examination. However, this error was deemed harmless as the testimony was cumulative of other evidence.
Analysis:
This is a case of first impression in Florida, establishing the legal standard for 'predecessor in interest' under the state's former testimony hearsay exception. By adopting the broader federal 'similar motive' test over a strict privity requirement, the court has significantly expanded the potential for admitting prior deposition and trial testimony in civil litigation. This decision streamlines the use of evidence in mass tort cases, such as asbestos litigation, where numerous plaintiffs bring similar claims against the same defendants. It aligns Florida's evidentiary rules with the dominant federal interpretation, though it also means current litigants may be bound by the strategic decisions made by different lawyers in prior cases.
