United States District Court, N.D. Ohio, Eastern Division
CHARLENE FRENCH, EXECUTRIX OF THE ESTATE OF DONALD R. FRENCH, Plaintiff,
A.W. CHESTERTON COMPANY, et al. Defendants.
MEMORANDUM OPINION AND ORDER
C. Nugent United States District Judge.
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
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.
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.
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.
Motion to Strike
Rule of Civil Procedure 32(a) addresses when a deposition may
be used as evidence at a hearing or trial.
In General. At a hearing or trial, all or
part of a deposition may be used against a party on these
(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
(C) The use is allowed by Ruled 32(a)(2) through (8).
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 ...