Died from malignant asbestos-induced mesothelioma
Alfred Kirk ("decedent"), a retired painter, died on July 5,
1988 at the age of 65 from malignant asbestos-induced
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
Caused by asbestos dust
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.
$1.2 million to the Estate of Alfred Kirk.
$810,000 to Sarah Kirk.
Prior Testimony of Out of Court Witness
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.
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
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
Owens-Corning's expert witness in a previous case voiced a
different and contradictory opinion as to which asbestos fibers
Returned a verdict in favor of Kirk,
Owens-Corning made a post-trial motion for a new trial
Based in part on the alleged admission of hearsay evidence, as
in, the prior testimony of Dr. Burgher in an unrelated case.
The district court denied this motion.
Statements by Person Authorized 801(d)(2)(C)
Kirk Attempts to justify the admission of prior testimony
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
Suggests any expert the Owens-Corning has previously used in a
trial can be used in future litigation against it as an
Kirk Cited Collins v. Wayne Corp.
Held that deposition testimony of an expert employed by a bus
manufacture to investigate an accident was an admission under
Kirk misconstrues Collins v. Wayne Corp
The expert was an agent of the defendant.
Expert Witness was NOT under the Clients Control
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
The relation of agency is created as
the result of conduct by two parties
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
- In this case
The expert witness was not subject to the control of the party
The expert witness cannot be deemed an agent.
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
The expert witness is an agent of the party, and
The expert witness is authorized to speak on behalf of that
Accordingly, we find Dr. Burgher's prior trial testimony to be
hearsay in the context of the present trial.