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Case Bulletin – Superior Court Permits Incomplete Deposition Testimony To Be Used Against Defendants

On October 28, 2019, Pennsylvania’s Superior Court issued a critical ruling in the Estate of Nicholas J. Kardos matter related to the admissibility of incomplete deposition testimony and an affidavit executed by an individual who died prior to completion of his deposition.  In its decision, the Kardos court held that the trial judge improperly excluded the affidavit of Nicholas Kardos prior to summary judgment arguments and vacated Orders granting summary judgment in favor of six Defendants.  2019 PA Super 324.

Sometime in 2016, Plaintiff-decedent Nicholas Kardos executed an affidavit identifying a number of manufacturers of products that he believed exposed him to asbestos.  Mr. Kardos appeared for a deposition on October 17 and 24, 2016, as originally noticed.  He appeared on a third day on October 26, 2016, which was noticed following the conclusion of the second day of testimony.  A notice of deposition was never served for a fourth day of testimony.  Subsequently, Mr. Kardos passed away on November 3, 2016.  During the three days of deposition, counsel for four Appellees began and completed their initial cross-examinations.  Counsel for two additional Appellees attended the three day deposition, but did not question Mr. Kardos.  Following Mr. Kardos’ passing, the Appellees filed motions for summary judgment, arguing that the court should not consider Mr. Kardos’ affidavit or incomplete deposition testimony.  Additionally, one of the Appellees filed a motion to preclude Mr. Kardos’ affidavit and deposition testimony.  In response, the trial judge issued an Order dated December 12, 2016 precluding Plaintiff from use of Mr. Kardos’ affidavit and deposition testimony in opposition to any party’s motion for summary judgment.  Thereafter, motions for summary judgment were granted in favor of the six Appellees.  Plaintiff filed a timely appeal to the Superior Court.

On appeal, the Kardos court reasoned that a nonmoving party may rely solely on a proper affidavit to create a genuine issue of fact when responding to a motion for summary judgment provided that the affidavit is based on personal knowledge and does not contradict the party’s prior testimony.  The court further reasoned that a nonmoving party may use hearsay, including deposition testimony, to defeat summary judgment if the non-movant provides a plausible avenue for admission of the hearsay at trial.  The Kardos court held that Mr. Kardos’ affidavit was improperly excluded as it was a properly executed affidavit subject to the penalties of unsworn falsification to authorities based on the direct knowledge of Mr. Kardos and was consistent with his deposition testimony.  The Kardos court further held that Mr. Kardos’ incomplete deposition testimony was improperly excluded as the testimony met the requirements for an exception to the rule against hearsay.  Specifically, Rule 804(b)(1) permits use of testimony of a witness who is unavailable if the testimony was given as a witness at a trial, hearing, or deposition and is now offered against a party who had an opportunity to conduct an examination of the witness.  Focusing on one specific term in Rule 804(b)(1)(B), the Superior Court found that all Defendants had the opportunity to cross-examine Mr. Kardos for three days and could have noticed him for a fourth day of testimony if necessary.  Finding that none of the Defendants noticed the continued deposition of Mr. Kardos for a fourth day or even indicated that they had any unfinished business related to Mr. Kardos’ deposition within the eight days between the third day of testimony and Mr. Kardos’ passing, the Superior Court held that Mr. Kardos’ deposition testimony met the former testimony exception to hearsay set forth in Rule 804(b)(1)(B).  Accordingly, the Superior Court vacated the Orders granting summary judgment in favor of the six Appellees and remanded for further proceedings.

With its ruling, the Superior Court has placed the onus squarely on defendants to take active steps to continue the deposition of a dying witness or risk a court finding that they were satisfied with the testimony and exercised their opportunity to cross-examine the witness.

We will continue to monitor this matter for any additional appellate activity.