Burkhart v. H.J. Heinz Co. (Slip Opinion)
19 N.E.3d 877
Ohio2014Background
- Donald Burkhart worked as a maintenance/boiler-room employee for H.J. Heinz for decades and was later diagnosed with malignant pleural mesothelioma; he gave a videotaped deposition in a products-liability suit against asbestos manufacturers before his death.
- Burkhart did not sue H.J. Heinz in that products-liability case, and Heinz did not participate or cross-examine him there.
- After Burkhart’s death, his widow filed a workers’ compensation death-benefits claim against H.J. Heinz and proffered his prior deposition to show workplace asbestos exposure.
- The Industrial Commission denied benefits; the trial court struck the deposition as inadmissible under Evid.R. 804(B)(1) and granted summary judgment for Heinz.
- The court of appeals reversed, finding the asbestos manufacturers in the prior litigation were “predecessors-in-interest” with a similar motive to develop Burkhart’s testimony.
- The Ohio Supreme Court granted review to decide whether former testimony from the unrelated products-liability case is admissible against Heinz in the workers’ compensation action under Evid.R. 804(B)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is former testimony from an unrelated products-liability deposition admissible against an employer in a workers’ compensation case under Evid.R. 804(B)(1)? | Mrs. Burkhart: prior defendants had opportunity and a similar motive to develop the testimony; defendants shared a community of interest — so they were predecessors-in-interest. | Heinz: manufacturers were not predecessors-in-interest, had no ownership or succession connection, and lacked a similar motive to challenge testimony about exposure at Heinz. | No. Former testimony excluded: no predecessor-in-interest relationship and no similar motive shown. |
| Does “predecessor-in-interest” in Evid.R. 804(B)(1) permit admission based solely on shared interest or similar motive? | Mrs. Burkhart: precedent (e.g., Lloyd) permits considering parties with like motive as predecessors-in-interest. | Heinz: rule requires legal succession/privity (right, title, interest or obligation) — mere shared interest or motive is insufficient. | The Court requires legal succession/privity; shared motive alone does not satisfy predecessor-in-interest. |
| If a prior examiner had opportunity but lacked identical incentives, does Evid.R. 804(B)(1) still allow admission? | Mrs. Burkhart: similar motive suffices; manufacturers had incentive to disprove workplace exposure generally. | Heinz: motive was different — manufacturers sought to disprove exposure to their specific product, not to disprove exposure at Heinz. | No. Even if opportunity existed, evidence is inadmissible if the prior examiner lacked a similar motive to develop the testimony. |
| Was the court of appeals’ reasoning (that all defendants shared the same position re: exposure) correct? | Mrs. Burkhart: all would benefit if it were disproven that Burkhart was exposed at Heinz, so they had like motive. | Heinz: record does not show any manufacturer preceded Heinz in interest or had incentive to refute exposure at Heinz; their motives targeted their own products. | No. The court reversed the appellate decision and remanded for trial-court consideration of remaining evidence. |
Key Cases Cited
- Wafers v. Dickey, 17 Ohio 439 (1848) (adoption of common-law former-testimony exception)
- Summons v. State, 5 Ohio St. 325 (1856) (former testimony admitted where same parties and subject-matter)
- Rutherford v. Geddes, 71 U.S. 220 (1866) (excluded deposition taken in separate suit where defendants had no privity)
- Rumford Chem. Works v. Hygienic Chem. Co. of New Jersey, 215 U.S. 156 (1909) (former testimony excluded for lack of party or privy in prior proceeding)
- Indus. Comm. v. Bartholome, 128 Ohio St. 13 (1934) (former deposition admitted where the commission had cross-examined declarant and issues were substantially similar)
- Lloyd v. Am. Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978) (federal view favoring a flexible, motive-based predecessor-in-interest analysis)