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Kirk v. Raymark Industries, Inc., 61 F.3d 147 |
U.S. Court of Appeals |
1995 |
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Chapter |
6 |
Title |
Hearsay |
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Page |
193 |
Topic |
Hearsay Exceptions: Statement by Person Authorized. |
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Quick Notes |
The decedent was a former employee of Owens-Corning. The decedents wife sues Owens-Corning after husband died from malignant asbestos-induced mesothelioma. Trial Court allowed wife to admit the PRIOR testimony of an expert that testified in another UNRELATED case for Owens. The court held that the trial court erred because the expert witness was not an agent and was not under the control of Owens.
Statements by Person Authorized 801(d)(2)(C)
Court Expert Witness was NOT under the Clients Control o Rule 801(d)(2)(C) requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where the expert has not agreed to be subject to the client's control in giving his or her testimony.
Agent Definition o The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act
Court Reasoning o We are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, UNLESS 1. The expert witness is an agent of the party, and 2. The expert witness is authorized to speak on behalf of that party. |
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Book Name |
Evidence: A Contemporary Approach. Sydney Beckman, Susan Crump, Fred Galves. ISBN: 978-0-314-19105-2. |
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Issue |
o Whether the district court committed an error of law by (1) allowing plaintiff to introduce into evidence the prior testimony of an out of court expert witness from an unrelated state court action? Yes. |
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Procedure |
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Trial |
o Jury Awarded: $1.2 million to the Estate of Alfred Kirk. $810,000 to Sarah Kirk |
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Appellant |
o Reversed. Accordingly, we find Dr. Burgher's prior trial testimony to be hearsay in the context of the present trial. |
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Facts |
Discussion |
Key Phrases |
Rules |
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Pl Kirk Df Raymark Industries
Died from malignant asbestos-induced mesothelioma o Alfred Kirk ("decedent"), a retired painter, died on July 5, 1988 at the age of 65 from malignant asbestos-induced mesothelioma. Sued Owens-Corning o Mrs. Sarah Kirk ("Kirk"), suing on behalf of herself and her deceased husband's estate, filed this diversity action against eight defendants, including Owens-Corning Fiberglas Corporation ("Owens-Corning"). Caused by asbestos dust o 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. Jury Awarded o $1.2 million to the Estate of Alfred Kirk. o $810,000 to Sarah Kirk.
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Prior Testimony of Out of Court Witness - Discussion
Owens-Corning Expert o Said that the fibers in Kaylo do not can the bad fibers (crocidolite) that cause mesothelioma.
Kirk - Permitted to read to the jury Unrelated Expert testimony. o Kirk was permitted to read to the jury the prior trial testimony of Dr. Louis Burgher from an unrelated New Jersey State Court asbestos action in 1992.
Kirk was attempting to discredit Dr. Demopoulos o In that case, Dr. Burgher had been an expert witness for Owens-Corning and testified on cross-examination that it was possible for mesothelioma to be caused by chrysotile fibers contaminated with tremolite. o Owens-Corning's expert witness in a previous case voiced a different and contradictory opinion as to which asbestos fibers cause mesothelioma.
Jury o Returned a verdict in favor of Kirk,
Owens-Corning made a post-trial motion for a new trial o Based in part on the alleged admission of hearsay evidence, as in, the prior testimony of Dr. Burgher in an unrelated case.
District Court o The district court denied this motion.
Statements by Person Authorized 801(d)(2)(C) - Discussion
Kirk Attempts to justify the admission of prior testimony o The prior trial testimony of Dr. Burgher [was] an admission by a party opponent since it is a statement by a person authorized by Owens-Corning to speak concerning mesothelioma and is thus not hearsay. o Suggests any expert the Owens-Corning has previously used in a trial can be used in future litigation against it as an authorized admission.
Kirk Cited Collins v. Wayne Corp. o Held that deposition testimony of an expert employed by a bus manufacture to investigate an accident was an admission under 801(d)(2)(C).
Court Kirk misconstrues Collins v. Wayne Corp o The expert was an agent of the defendant.
Court Expert Witness was NOT under the Clients Control o Rule 801(d)(2)(C) requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where the expert has not agreed to be subject to the client's control in giving his or her testimony.
Agent Definition o The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act
Court - In this case o The expert witness was not subject to the control of the party opponent. o The expert witness cannot be deemed an agent.
Court Reasoning o We are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, UNLESS 3. The expert witness is an agent of the party, and 4. The expert witness is authorized to speak on behalf of that party.
Court - Holding o Accordingly, we find Dr. Burgher's prior trial testimony to be hearsay in the context of the present trial. o Reversed. |
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Rules |
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Statements by Person Authorized 801(d)(2)(C)
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Class Notes |
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