89 So. 3d 357
La.2012Background
- Trascher sought an ex parte order to perpetuate testimony due to imminent death from asbestosis; deposition began April 3, 2007; he was fatigued, exhausted, and depostion recessed; he died April 11, 2007 before continuation or cross-examination; Avondale contested admissibility and sought to strike deposition; district court admitted the deposition for trial; appellate proceedings questioned admissibility under evidentiary rules; majority held only a limited portion admissible under 803(3) and 1450(C) while rest inadmissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deposition to perpetuate is admissible without cross-examination | Trascher deposition admissible under 1450 | Defendants not afforded cross-examination; inadmissible | Partially admissible under 803(3); rest inadmissible under 1450/804 |
| Whether dying declaration exception applies | Statements relate to impending death | Not imminent death; not a dying declaration | Not admissible under 804(B)(2) due to non-imminent death timing and spontaneity concerns |
| Whether residual 804(B)(6) permits admission | Unspecified statements trustworthy; no other witnesses | Lack of trustworthiness and extraordinary circumstances | Not admissible under 804(B)(6) residual exception |
| Whether 1450(C) allows admission despite no full cross-examination | Statutory discretion permits dep. excerpts | Requires cross-examination or falls under hearsay | Trial court did not abuse discretion; excerpts admitted as to limited portions |
Key Cases Cited
- Garza v. Delta Tau Delta Fraternity Nat., 948 So.2d 84 (La. 2006) (cross-examination importance in civil cases emphasized)
- Donnelly v. U.S., 229 U.S. 243 (1913) (hearsay exclusion for lack of cross-examination safeguards)
- Buckbee v. United Gas Pipe Line Co., 561 So.2d 76 (La. 1990) (residual exception requires trustworthiness and necessity)
- Derewecki v. Pennsylvania Railroad Co., 358 F.2d 436 (3d Cir.1965) (admissibility of deposition when witness dies during deposition)
- Doyle v. Derewcki, (example) ((N/A)) (illustrative; not used as an actual citation in text)