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ECEOVE D Counsel for Defendant-Appellant, APR 10 2013 H.J

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ECEOVE D Counsel for Defendant-Appellant, APR 10 2013 H.J rro 7) y4Z IN THE SUPREME COURT OF OHIO MARY LOU BURKHART s ^Sen Plaintiff-Appellee, i On Appeal from the Wood County Court V. of Appeals, Sixth Appellate District H.J. HEINZ CO, et al, Defendant-Appellant. Court of Appeals Case No. WD-12-008 DEFENDANT-APPELLANT H.J. HEINZ CO.'S MEMORANDUM IN SUPPORT OF JURISDICTION David S. Bates, Esq. (#0059344) Keith A. Savidge, Esq. (#0014242) Joshua P. Grunda, Esq. (#0084266) Andrew D. Bemer, Esq. (#0015281) 6555 Dean Memorial Pkwy. Eric D. Baker, Esq. (#0070025) Boston Heights, Ohio 44236 Seeley, Savidge, Ebert & Gourash Co., LPA (330) 650-0088; Fax No. (330) 467-4493 26600 Detroit Road [email protected] Cleveland, Ohio 44145 (216) 566-8200; Fax No. (216) 566-0213 Counsel for Plaintiff-Appellee, [email protected] Mary Lou Burkhart [email protected] [email protected] ECEOVE D Counsel for Defendant-Appellant, APR 10 2013 H.J. Heinz Co. CLERK n^ ^MURT REnIIE UUUR`l OF OHIO Joshua Lanzinger, Esq. (#0069260) Assistant Ohio Attorney General One Government Centre, Suite 1340 Toledo, Ohio 43604 (419) 245-2550; Fax No. (419) 245-2520 j oshua.lanzinger@ohioattorneygeneral. gov APR 1,0 7013 Counsel for Ohio Bureau of Workers' G4ENK sA tzOURT Compensation ^EU1 CUURI JF OHIO TABLE OF CONTENTS MEMORANDUM IN SUPPORT ........................................................................................1 1. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC AND GREAT GENERAL INTEREST ...........................................................................................1 II. STATEMENT OF THE CASE ............................................................................... 3 III. STATEMENT OF THE FACTS .... ......................................................................... 5 IV. PROPOSITION OF LAW AND SUPPORTING ARGUMENT ......................... 5 PROPOSITION OF LAW NO. 1: PURSUANT TO EVID. R. 804(B)(1) A DEPOSITION TAKEN IN AN UNRELATED TORT ACTION AGAINST SELLERS OF ASBESTOS-CONTAINING MATERIALS IS NOT ADMISSIBLE AGAINST A DEFENDANT EMPLOYER IN A SUBSEQUENT WORKERS' COMPENSATION ACTION WHERE THE EMPLOYER WAS NOT A PARTY TO THE TORT ACTION AND THE ALLEGED TORTFEASORS HAD NO SIMILAR MOTIVES IN CROSS- EXAMINING THE DECEDENT ........................................................................... 5 PROPOSITION OF LAW NO. 2: SUMMARY JUDGMENT OPPOSITION EVIDENCE UNDER 56(C) MUST CONSIST OF EVIDENCE THAT IS ADMISSIBLE AT TRIAL .....................................................................................11 A. The 1994 Answers To Supplemental Interrogatories Of Owens-Corning In Prior Litigation Are Not Admissible In The Current Proceeding .............. 11 B. The Affidavits Of Andrew Oh, Leland Bandeen And Wally Koons Are Not Based On Personal Knowledge And Are Therefore Inadmissible ............... 13 C. As Reports From Dr. Shaikh And The Expert Witness Reports Of William Ewing And Dr. Stephen Demeter, Premised Upon Unreliable And Inadmissible Evidence, Are Properly Excluded By The Trial Court .......... 14 V. CONCLUSION .......................................................................................................14 CERTIFICATE OF SERVICE .........................................................................................16 APPENDIX ............................................................................................................................ ii ;, MEMORANDUM IN SUPPORT I. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC AND GREAT GENERAL INTEREST The core issue before the lower courts concerned the standard for application of Ohio Rule of Evidence 804(B)(1), regarding the admissibility of the hearsay exception for former testimony. The key elements in determining admissibility focus on whether the predecessor in interest had both the opportunity and a similar motive to develop testimony to advance either the support or opposition to the interest of another party in a subsequent proceeding. In the instant matter, Appellee is the spouse of Donald Burkhart, a deceased former employee of Appellant Heinz, who died purportedly following a diagnosis of mesothelioma. This case originated in the Industrial Commission of Ohio on the Widow-Claimant's death claim. The Supreme Court has never ruled on the standards of application of Evidence Rule 804(B)(1) in the context of civil proceedings. This Court has only opined on issues concerning former testimony in prior proceedings under Rule 804(B)(1) in the criminal context, given the constitutional dimensions of the Sixth Amendment Confrontation Clause, as well as the required focus on the "indicia of reliability" under the Rule. Although there have been a number of appellate districts which have attempted to address the standards under the 804(B)(1) test to determine this hearsay exception, there has been no consistency. Most noteworthy is the failure of some of the appellate districts to recognize that Evid. R. 403(A) requires the court to determine whether the danger of unfair prejudice outweighs the probative value of certain evidence in rendering decisions on admissibility. The former testimony in question was a 2006 video deposition of Mr. Burkhart in an asbestos claim captioned Burkhart v. A W Chesterton, Inc., et al, Cuyahoga County Case No. CV- 1 a 06-599652. Also at issue are various reports replete with hearsay. The Sixth District Court of Appeals clearly erred in finding that because "all would benefit if it was disproven that Donald Burkhart had been exposed to asbestos," the motives of the parties participating in the 2006 litigation were such that the interests of Heinz would have been protected. The Appellate Court held that the Burkhart deposition testimony was admissible for evidentiary consideration of whether a genuine issue of material fact existed in these proceedings under Civil Rule 56. Accepting jurisdiction of this case by this Court will give the appellate judiciary of Ohio clear direction in addressing Evid. R. 804(B)(1) with both a fact determination as to the "predecessor in interest/similar motive" test and a balancing analysis of the evidence for prejudicial effect under Evidence Rule 403(A). An opinion from this Court would eliminate the confusion and misunderstanding demonstrated by the Sixth District in this case: its failure to properly assess the nature of proceedings, the focus of the examination and evidentiary motive of the former parties, together with the consequential effect of the prior proceedings on those parties who were not participatory in the former matters. The Sixth District failed to grasp the effect of the deposition of Donald Burkhart in identifying asbestos at the Heinz workplace without any meaningful or substantial cross-examination to counteract that testimony. In fact, no testimony was pursued to reveal that Burkhart had no personal knowledge of the existence of asbestos, nor did he have any training or education in the identification of asbestos. Moreoever, this is an opportune time for this Court to review the nature of admissible evidence under Civ. R. 56. The landmark decision of Dresher v. Burt, 75 Ohio St.3d 280 (1996), /^^ i^° °^'^°^^°r+'•°^ "^ ^;'^°i. ,^v. + a .^..,.,• +•^„ ^^+,'.".^' • ,;±:^^ f{^ prV Jl\L\ s \ AV\ llVlll 1\rev Jlvvview allu u11\.\:tlvll for IhV ap^Jlil^0.^1v11 vl tllc 1GSpoilSibillllw ol ^lle j^Ql^Ir,'^^^:^^ 111 in supporting as well as opposing summary judgment. However, as discussed infra, the appellate district courts of Ohio are not in conformity on the issue of the nature of evidence in Civ. R. 56 2 proceedings. It is explicit that under 56(E), affidavits must be based on personal knowledge and "shall set forth such facts as would be admissible in evidence." However, Civ. R. 56(C) allows for a wide variety of materials such as pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, to "show that there is no genuine issue as to any material fact." Query: should not the various types of materials identified in subsection (C) also contain evidence that would be admissible in the proper context at trial? Answers to interrogatories were submitted in opposition to Heinz's Motion for Summary Judgment, which wre produced in 1994 from another asbestos case, captioned In re: Northern Ohio Tire Workers'Asbestos Litigation, Summit CP No. 88-04-1087, et seq. The Sixth District in the instant matter cited the case of Hastings Mutual Ins. Co. v. Halatek, 174 Ohio App.3d 252, 2007-Ohio-6923, for the proposition that "when the issue is merely determining whether a genuine issue of material fact exists, the deposition should be allowed for that purpose only, regardless of whether it would later be inadmissible against the party at trial." Id. at 257, citing Gerken v. Mir, 3`d Dist. No. 10-95-7, 1995 WL 723157. Heinz contends that this application is in derogation of the intent that all evidentiary matters in su.mmary judgment proceedings should have an indicia of admissibility at trial, given the proper form and availability. As such, it is time for further direction of this High Court. II. STATEMENT OF THE CASE On March 1, 2013, the Sixth District Court of Appeals reversed the decision for summary jit(igmPnt to Heinz, and dPta''"''ir'Pr^ that t^lF' ^x7^.`^ County Court ^ "' ",.. ,.1' determined the Woodt ^ v^i^.!oii v^.uic^'^i'ivu 1 Pleasi avu...Jel;t .7w its discretion in striking the video deposition testimony of Donald Burkhart, interrogatory answers for a prior unrelated proceeding, as well as various medical and expert reports as hearsay without
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