Out-of-State Deposition Found Admissible in California Action

Court of Appeal opines trial court did not abuse its discretion by denying Union Carbide’s motion to exclude asbestos plaintiff’s out-of-state deposition

LOS ANGELES – January 20,  2010 – The Second Appellate District of the California Court of Appeal, in an opinion issued on January 15, 2010, has found that the trial court did not abuse its discretion by denying a defense motion to exclude the deposition testimony of John H. Washington, Jr., taken in July 2007 in an asbestos-related personal injury action filed in Texas. (Union Carbide Corporation v. Superior Court, Case No. B216591, Calif. Ct. App., 2nd Dist., Div. 2, Jan. 15, 2010.) Although it was present and represented by counsel at the deposition in the Texas action, Defendant Union Carbide Corporation (“Union Carbide”) moved to exclude the testimony from a subsequent action filed by Mr. Washington and his wife in the Superior Court of Los Angeles County, which became a wrongful death action following his death from mesothelioma. (Helen P. Washington, et al. v. American Standard, Inc. et al., Case No. BC376519, Los Angeles County Super. Ct.) Union Carbide argued that the deposition testimony should be excluded because it was taken in the Texas action and was therefore inadmissible. Alternatively, it argued that the testimony should be excluded because plaintiffs’ counsel, Waters & Kraus, LLP, had engaged in an abusive litigation practice by filing and dismissing the Texas action after Mr. Washington had been deposed in it then filing and objecting to any deposition of Mr. Washington in the current action in California.

In its opinion denying Union Carbide’s petition for a writ of mandate, the appellate court held that Mr. Washington’s deposition testimony is separately admissible under California Code of Civil Procedure section 2025.620(g) and California Evidence Code section 129(a)(2). It further held that use of Mr. Washington’s deposition testimony against Union carbide will not violate due process or deprive it of a fair trial or of the ability to move for summary judgment.

In its order denying Union Carbide’s exclusion motion, the trial court found that Mr. Washington’s deposition testimony was admissible and it did not find that Waters & Kraus, LLP had engaged in an abusive litigation practice. it did, however, set forth its belief that the Texas action was filed to prevent defendants from conducting adequate discovery and from making motions for summary judgment in the subsequent California action, and that this was, in its view, part of “the grisly game of asbestos litigation that occurs in the courts.”

The appellate court, in its opinion, “wish[ed] to clarify that the trial court’s musings are not supported by the record,” and held there was no evidence to support Union Carbide’s  accusation of an abusive litigation practice. Specifically, the appellate court found there was “no evidence that an abusive litigation practice. Specifically, the appellate court found there was “no evidence that Waters & Kraus filed the Texas action for an improper purpose” and there was “nothing suspicious about the filing of the Texas action,” since some of the asbestos-containing products Mr. Washington alleged exposure to were manufactured, sold or supplied by defendants that were Texas residents or were manufactured in Texas. Nor was there any evidence to support Union Carbide’s contention that Waters & Kraus, LLP improperly delayed the filing of the Texas action.

The appellate court rejected Union Carbide’s argument that Waters & Kraus, LLP never had any intention of pursuing the action in Texas, finding that the firm’s conduct was “consistent with the intent to pursue the Texas action, not to dismiss it in lieu of an action California.”

Plaintiffs’ counsel explained, both in the trial court and the appellate court, that the Texas action was dismissed and the California action was filed in response to defense motions to dismiss the Texas action under the doctrine of forum non conveniens. Because such motion can be heard in Texas as late as 30 days before trial, there was the real possibility that after fully litigating the action in Texas, it could be dismissed just a few weeks before trial. as a precautionary step to avoid this outcome, plaintiffs’ counsel dismissed the Texas action and filed in California, where Mr. Washington had been occupationally exposed to asbestos. The appellate court found this “to be a cogent and benign reason.”

The appellate court further found that, “[w]ith no accurate prediction as to [Mr. Washington’s] longevity, Waters & Kraus had a responsibility to preserve his testimony for trial by deposing him before his condition worsened to the point where no deposition could be taken,” and that given his rapidly deteriorating medical condition, the firm was not to be faulted for objecting to Union Carbide’s notice of Mr. Washington’s deposition in the California action. union Carbide had noticed the deposition for December 10, 2007, but subsequently withdrew the notice after receiving information from Mr. Washington’s treating oncologist regarding his gave medical condition. Mr. Washington passed away on December 21, 2007.

Note: A PDF of the Court’s opinion is included for your reference.

About Waters & Kraus, LLP

Waters & Kraus, LLP is a nationally recognized plaintiffs’ firm concentrating on complex product liability and personal injury/wrongful death cases, particularly asbestos-mesothelioma. In addition to toxic tort litigation, the firm’s diverse practice includes pharmaceutical product liability, negligence, elder financial abuse, class actions, and consumer product liability, as well as qui tam (whistleblower) and commercial litigation. With offices in Texas, California, and Maryland, Waters & Kraus, LLP has litigated cases in jurisdictions across the United States on behalf of individuals from all 50 states, as well as foreign governments.

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