Washington Court of Appeals Adopts Federal Court Interpretation of the Predecessor in Interest Language of ER 804(b)(1)

In Michael Farrow and Lidia Farrow v. Alfa Laval, Inc., et al, the Washington Court of Appeals reversed and remanded a trial court’s grant of summary judgment in favor of a valve manufacturer.

                Michael Farrow, alleged that he contracted mesothelioma as a result of his exposure to various asbestos-containing products while working as a pipefitter at the Puget Sound Naval Shipyard. Prior to his death, Mr. Farrow and his wife brought suit against a number of the alleged manufacturers and suppliers of those products. In particular, Mr. Farrow alleged that that he was exposed to asbestos from removing and replacing packing material on Edward valves and associated parts while aboard naval vessels.  

                Defendant Flowserve, who manufactured Edward valves, moved for summary judgment against the plaintiff, arguing that the plaintiff did not have sufficient evidence that Mr. Farrow worked with Edward valves, or if he did, that any asbestos-containing parts in those valves were the original parts sold by Flowserve.  The plaintiff offered the deposition testimony of Melvin Wortman, a former superintendent of machinists at the shipyard. Mr. Wortman testified in a deposition from another asbestoses case that the navy had obtained fifty percent of its replacement parts from the equipment manufacturers, therefore making it more likely that equipment manufacturers such as Flowserve supplied replacement gaskets and packing that Mr. Farrow used

                Flowserve and other defendants argued that Mr. Wortman’s deposition was hearsay and, therefore, not admissible against defendants who had not had an opportunity to cross-examine Mr. Wortman. The trial court agreed and granted a motion to strike Mr. Wortman’s testimony. The court then granted Flowserve’s summary judgment motion.

                The appellate court reversed. The plaintiff argued that Mr. Wortman’s testimony was admissible under  ER 804(b)(1), which allows admission of deposition testimony, if the party against whom the testimony is now offered,  or a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  In analyzing whether Flowserve and similarly situated defendants were “predecessors in interest,” the court of appeals adhered to the federal court interpretation of the predecessor in interest language. The court explained that “when opposing admission of evidence pursuant to ER 804(b)(1), counsel must explain as clearly as possible…why the motive and opportunity of the defendants in the first case was not adequate to develop the cross-examination of the witness.” (internal citations omitted). Additionally, a defendant will not be able to exclude prior deposition testimony by simply pointing out that a particular line of cross-examination was not pursued. The court concluded that Flowserve had a similar motive to cross-examine Mr. Wortman, because all defendants had an interest in discrediting his testimony. After considering Mr. Wortman’s testimony, the court in an unpublished part of the decision, concluded that a genuine issue of material fact existed sufficient to deny Flowserve’s summary judgment motion.

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