Deposition Testimony in Underlying Products Liability Action Inadmissible in Workers’ Compensation Claim

Employers may be faced with a workers' compensation claim arising out of a products liability action. In this situation, the employer is often not a party to the underlying case. Based on a recent Ohio Supreme Court decision, deposition testimony in a products liability action where the employer was not a party is inadmissible in a workers’ compensation claim.

The case of Burkhart v. H.J. Heinz Co., Supreme Court No. 2013-0580, 2014WL4358396 (decided September 3, 2014) examines the admissibility of deposition testimony from a products liability case in a subsequent workers’ compensation claim. Donald Burkhart allegedly developed malignant pleural mesothelioma due to asbestos exposure while working at H.J. Heinz Co. He filed a lawsuit against several asbestos manufacturers. During the course of the lawsuit, a videotaped deposition was completed to preserve his testimony.

Mr. Burkhart subsequently died and his wife filed a workers’ compensation claim against H.J. Heinz. The claim was denied and an appeal filed in the Wood County Court of Common Pleas. In a Brief in Opposition to a Motion for Summary Judgment filed by H.J. Heinz, Mrs. Burkhart relied on her husband’s deposition, wherein he testified that he believed he had been exposed to asbestos at H.J. Heinz. The trial court excluded the deposition testimony. An appeal was filed, and the Sixth District Court of Appeals reversed the trial court.

The case then proceeded to the Ohio Supreme Court. The sole issue before the Supreme Court was the admissibility of the deposition testimony. The court analyzed the common law “former testimony” exception of the hearsay rule and Evid.R. 804(B)(1) at length. For the exception to apply, it must be established that (1) the party against whom the testimony is offered, or, in a civil action or proceeding, a predecessor-in-interest, had an opportunity to examine the declarant in the prior proceeding, and (2) that party had a motive that is similar to the motive that the party would have in the present proceeding to develop the former testimony by direct, cross, or redirect examination.

The Supreme Court held that the asbestos manufacturers who participated in Mr. Burkhart’s deposition were not “predecessors-in-interest” to H.J. Heinz. The court further concluded that the asbestos manufacturers did not have the same or similar motive as H.J. Heinz because they had no incentive to dispute whether or not Mr. Burkhart had been exposed to asbestos at H.J. Heinz. As a result, the court held that the deposition testimony from the products liability action was inadmissible.

The court’s ruling is important to the defense of workers’ compensation claims arising out of products liability actions. It limits the use of prior testimony in situations where the employer is not named in the underlying lawsuit and a workers’ compensation claim is subsequently filed.

If you would like a copy of the Burkhart decision or have any questions with respect to workers’ compensation, please contact a member of our Workers’ Compensation Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.