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French v. A.W. Chesterton Co.

United States District Court, N.D. Ohio, Eastern Division

October 18, 2017

CHARLENE FRENCH, EXECUTRIX OF THE ESTATE OF DONALD R. FRENCH, Plaintiff,
v.
A.W. CHESTERTON COMPANY, et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Donald C. Nugent United States District Judge.

         This matter is before the Court on Defendant Green Tweed & Company Inc.'s Motions to Strike and Exlude Discovery Deposition Testimony of Plaintiff Donald French (ECF #350), and for Summary Judgment (ECF #380). Plaintiffs have responded to each motion, and Defendant Green Tweed & Company, Inc. ("Green Tweed) has filed replies in support of its motions. (ECF # 363, 394, 403, 408, 410). The issues are now fiilly briefed and the motions are ready for disposition.

         Facts

         Decedent, Donald French, brought this case alleging that he suffered from malignant mesothelioma, stemming from exposure to asbestos-containing products between 1976 and 1986, while working at U.S. Steel in Dearborn, Michigan. Green Tweed acknowledges that, during at least a portion of that time period, it manufactured and sold fluid-sealing products, including gaskets and packings that contained asbestos, and that these products were sold under the trade name Palmetto.

         As part of the discovery process, Mr. French was deposed on for approximately 18 hours, over three days. On his last day of deposition, July 26, 2016, he identified one of Green Tweed's products as being a potential cause of his exposure. He testified that rope on the leveler doors of the coke ovens at U.S. Steel was manufactured by Palmetto. There has been no other evidence cited tying any of Green Tweed's products to Mr. French or to his workplace. The deposition could not be completed on that date in July, and was scheduled to resume on October 14, 2016. Unfortunately, because of Mr. French's illness, he was not able to attend to next scheduled deposition day. He died on October 24, 2016, before the deposition could be resumed.

         The parties agree that Green Tweed did not cross-examine Mr. French on July 26, 2016, and was, therefore, unable to question him about his identification of the Palmetto product. Plaintiffs argue that Green Tweed was present at the deposition and had an opportunity to cross-examine Mr. French, but did not take that opportunity. Green Tweed argues that, because of the The factual summary is based upon the parties' statements of facts. Those material facts which are controverted and supported by deposition testimony, affidavit, or other evidence are noted to be in dispute and will be accepted in the light most favorable to the Plaintiff, the non-moving party, for purposes of these motions. agreed order of deposition, and the multitude of participating parties, it did not have the opportunity to cross-examine Mr. French on that day, but had expected to be able to do so at the next scheduled deposition date.

         LEGAL ANALYSIS

         I. Motion to Strike

         Federal Rule of Civil Procedure 32(a) addresses when a deposition may be used as evidence at a hearing or trial.

         (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) The party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) It is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) The use is allowed by Ruled 32(a)(2) through (8).

         There is no dispute that Green Tweed was present or represented at the taking of Mr. French's deposition, or that 32(a)(2) through (8) allows the use of depositions when the witness is unavailable by reason of his death. Fed.R.Civ.P. 32(a)(4)(A). The parties disagree on whether Mr. French's testimony identifying Green Tweed's Palmetto ...


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