IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION
WILLIAM DEREK SYKES, as ) personal Representative of the Estate of ) WILLIAM DON SYKES, ) ) Plaintiff, ) ) C.A. No. N14C-03-028 ASB v. ) ) AIR & LIQUID SYSTEMS CORP., et ) al., ) ) Defendants. )
Decided: February 7, 2018
Upon Plaintiff’s Exceptions to the Special Master’s Decision. AFFIRMED.
Plaintiff filed a Notice of Exceptions to the Special Master’s Order of August
5, 2017. In the August 5 Order the Special Master Granted Defendants’ Motion to
Exclude the decedent, William Don Sykes’s, testimony. Plaintiff claims that the
Special Master erred in granting Defendants’ Motion to Exclude the sworn
testimony of William Don Sykes. The facts are as follows. Mr. Sykes was diagnosed
with mesothelioma in October 2013. Mr. Sykes’s health was deteriorating, and the
parties arranged for expedited trial depositions and discovery depositions. Mr. Sykes
deposition was taken on April 16, 2014, about six weeks after Plaintiff filed his Complaint. During a break, Mr. Sykes informed his counsel that he would not be
able to proceed with the remaining portion of the deposition that day due to his
condition. Subsequently, Mr. Sykes’s condition worsened, he was unable to proceed
with a deposition the following day, and Mr. Sykes passed away just two weeks
later. At this time, the parties are left with the video trial deposition of Mr. Sykes
without cross examination by Defendants. On August 5, 2017, the Special Master
Ordered that Mr. Sykes’s trial deposition was inadmissible at trial under the
Delaware Rules of Evidence.
Before the Special Master, Defendants sought to exclude Mr. Sykes’s
testimony as inadmissible hearsay under the Delaware Rules of Evidence.
Additionally, Defendants argued that the D.R.E. 804(b)(1) exception to the hearsay
rule did not apply because Plaintiff did not meet his burden demonstrating that any
Defendant had an opportunity to develop testimony from Mr. Sykes and Defendants
attempted to develop testimony but were denied the opportunity. Plaintiff argued
that the testimony was admissible under D.R.E. 804(b)(1) because Defendants, on
the record, were given the opportunity to cross examine Mr. Sykes but did not do so.
Additionally, Plaintiff argued that Mr. Sykes’s testimony fell within D.R.E. 807
“catch all” exception because granting the motion would deprive Mr. Sykes of his
day in Court. The Special Master found that Mr. Sykes’s deposition testimony fell
within the parameters of hearsay under D.R.E. 801 as an out-of-court statement by
2 a declarant, offered into evidence to prove the truth of the matter asserted. The
Special Master considered three possible exceptions to the rule against hearsay:
Superior Court Civil Rule 32, D.R.E. 804(b)(1) former testimony exception, and
D.R.E. 807 residual exception. The Special Master found that there was no
meaningful opportunity for cross-examination under D.R.E. 804(b)(1) and the catch
all provision of D.R.E. 807 did not apply.
Plaintiff filed a Notice of Exceptions to the August 5 Order by the Special
Master. Here, Plaintiff argues that the Special Master erred in granting Defendant’s
Motion to Exclude the testimony. Plaintiff avers that Mr. Sykes’s testimony is
admissible under the former testimony exception of D.R.E. 804(b)(1), and his
testimony is admissible under Superior Court Civil Rule 32 independent from the
Rules of Hearsay. Defendants filed a Response in Opposition. Contrary to Plaintiff’s
position, Defendants argued that they did not have the opportunity to depose Mr.
Sykes, and neither Superior Court Civil Rule 32 nor the former testimony exception
under D.R.E. 804(b)(1) applies to this case. The Court reviews the Special Master’s
legal and factual findings de novo.1 First, it is not clear to the Court what the error
was that Plaintiff seeks an exception to. The Special Master’s decision was well
1 DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999); see also In re Asbestos Litig., 623 A.2d 546, 548 (Del. Super. 1992)(“Masters’ decisions on pre-trial, non- dispositive issues should be reviewed under the clearly erroneous standard, while decisions which are case dispositive or which determine substantial issues and establish legal rights should be subject to de novo review.”). 3 reasoned and there was no specific error that Plaintiff plead. Rather, Plaintiff
rehashed arguments already decided by the Special Master.
Next, as laid out in the Special Master’s detailed analysis, D.R.E. 804(b)(1)
excludes former testimony from the hearsay rule if the declarant is unavailable as a
witness and the “[t]estimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course
of the same or another proceeding, if the party against whom the testimony is now
offered, or in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross or redirect
examination.”2 The issue between the parties is whether Defendants had the
opportunity to develop the testimony by direct examination, cross-examination, or
redirect examination. The Court agrees with the Special Master in that Defendants
did not have the opportunity to develop Mr. Sykes testimony. Plaintiff believes that
Defendants had the opportunity to develop Mr. Sykes’s testimony because counsel
for Plaintiff notified Defendants that due to Mr. Sykes’s deteriorating health the
deposition should be taken on April 9, 2014 and Defendants were unable to
accommodate that request. Mr. Sykes deposition was taken on April 16, 2014, and
Defendant did not proceed with cross-examination after Mr. Sykes videotaped
2 D.R.E. 804(b)(1). 4 deposition. Subsequently, Mr. Sykes was unable to continue with the deposition
after the parties took a break and Defendant was unable to cross-examine Mr. Sykes.
Delaware case law is instructive on determining when a party has had the
opportunity to develop testimony. For example, in Panaro v. J.C. Penny Co., Inc.,
the court stated “D.R.E. 804(b)(1) tracks F.R.E. 804(b)(1). F.R.E. 804(b)(1) allows
deposition testimony to be admitted at trial if the opponent had an opportunity and
motive to develop the testimony by direct, cross, or redirect examination. The federal
rules also allow the testimony if there was an opportunity to develop, not necessarily
complete, the testimony.”3 The court in Panaro held that although the discovery
deposition was not completed, “there [was] no question that [defendant’s] counsel
had motive and opportunity to cross-examine.”4 In Panaro the plaintiff was able to
complete direct examination on video, and defense was able to question the plaintiff
in a discovery deposition for an hour and a half.5 Here, Mr. Sykes’s videotaped trial
deposition began at 9:08 a.m. with his counsel’s direct examination, and at 9:57 a.m.
Mr. Sykes took a rest. Questioning resumed at 10:33 a.m. through 11:56 a.m.
Subsequently, Defense determined that they needed to take their discovery
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION
WILLIAM DEREK SYKES, as ) personal Representative of the Estate of ) WILLIAM DON SYKES, ) ) Plaintiff, ) ) C.A. No. N14C-03-028 ASB v. ) ) AIR & LIQUID SYSTEMS CORP., et ) al., ) ) Defendants. )
Decided: February 7, 2018
Upon Plaintiff’s Exceptions to the Special Master’s Decision. AFFIRMED.
Plaintiff filed a Notice of Exceptions to the Special Master’s Order of August
5, 2017. In the August 5 Order the Special Master Granted Defendants’ Motion to
Exclude the decedent, William Don Sykes’s, testimony. Plaintiff claims that the
Special Master erred in granting Defendants’ Motion to Exclude the sworn
testimony of William Don Sykes. The facts are as follows. Mr. Sykes was diagnosed
with mesothelioma in October 2013. Mr. Sykes’s health was deteriorating, and the
parties arranged for expedited trial depositions and discovery depositions. Mr. Sykes
deposition was taken on April 16, 2014, about six weeks after Plaintiff filed his Complaint. During a break, Mr. Sykes informed his counsel that he would not be
able to proceed with the remaining portion of the deposition that day due to his
condition. Subsequently, Mr. Sykes’s condition worsened, he was unable to proceed
with a deposition the following day, and Mr. Sykes passed away just two weeks
later. At this time, the parties are left with the video trial deposition of Mr. Sykes
without cross examination by Defendants. On August 5, 2017, the Special Master
Ordered that Mr. Sykes’s trial deposition was inadmissible at trial under the
Delaware Rules of Evidence.
Before the Special Master, Defendants sought to exclude Mr. Sykes’s
testimony as inadmissible hearsay under the Delaware Rules of Evidence.
Additionally, Defendants argued that the D.R.E. 804(b)(1) exception to the hearsay
rule did not apply because Plaintiff did not meet his burden demonstrating that any
Defendant had an opportunity to develop testimony from Mr. Sykes and Defendants
attempted to develop testimony but were denied the opportunity. Plaintiff argued
that the testimony was admissible under D.R.E. 804(b)(1) because Defendants, on
the record, were given the opportunity to cross examine Mr. Sykes but did not do so.
Additionally, Plaintiff argued that Mr. Sykes’s testimony fell within D.R.E. 807
“catch all” exception because granting the motion would deprive Mr. Sykes of his
day in Court. The Special Master found that Mr. Sykes’s deposition testimony fell
within the parameters of hearsay under D.R.E. 801 as an out-of-court statement by
2 a declarant, offered into evidence to prove the truth of the matter asserted. The
Special Master considered three possible exceptions to the rule against hearsay:
Superior Court Civil Rule 32, D.R.E. 804(b)(1) former testimony exception, and
D.R.E. 807 residual exception. The Special Master found that there was no
meaningful opportunity for cross-examination under D.R.E. 804(b)(1) and the catch
all provision of D.R.E. 807 did not apply.
Plaintiff filed a Notice of Exceptions to the August 5 Order by the Special
Master. Here, Plaintiff argues that the Special Master erred in granting Defendant’s
Motion to Exclude the testimony. Plaintiff avers that Mr. Sykes’s testimony is
admissible under the former testimony exception of D.R.E. 804(b)(1), and his
testimony is admissible under Superior Court Civil Rule 32 independent from the
Rules of Hearsay. Defendants filed a Response in Opposition. Contrary to Plaintiff’s
position, Defendants argued that they did not have the opportunity to depose Mr.
Sykes, and neither Superior Court Civil Rule 32 nor the former testimony exception
under D.R.E. 804(b)(1) applies to this case. The Court reviews the Special Master’s
legal and factual findings de novo.1 First, it is not clear to the Court what the error
was that Plaintiff seeks an exception to. The Special Master’s decision was well
1 DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999); see also In re Asbestos Litig., 623 A.2d 546, 548 (Del. Super. 1992)(“Masters’ decisions on pre-trial, non- dispositive issues should be reviewed under the clearly erroneous standard, while decisions which are case dispositive or which determine substantial issues and establish legal rights should be subject to de novo review.”). 3 reasoned and there was no specific error that Plaintiff plead. Rather, Plaintiff
rehashed arguments already decided by the Special Master.
Next, as laid out in the Special Master’s detailed analysis, D.R.E. 804(b)(1)
excludes former testimony from the hearsay rule if the declarant is unavailable as a
witness and the “[t]estimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course
of the same or another proceeding, if the party against whom the testimony is now
offered, or in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross or redirect
examination.”2 The issue between the parties is whether Defendants had the
opportunity to develop the testimony by direct examination, cross-examination, or
redirect examination. The Court agrees with the Special Master in that Defendants
did not have the opportunity to develop Mr. Sykes testimony. Plaintiff believes that
Defendants had the opportunity to develop Mr. Sykes’s testimony because counsel
for Plaintiff notified Defendants that due to Mr. Sykes’s deteriorating health the
deposition should be taken on April 9, 2014 and Defendants were unable to
accommodate that request. Mr. Sykes deposition was taken on April 16, 2014, and
Defendant did not proceed with cross-examination after Mr. Sykes videotaped
2 D.R.E. 804(b)(1). 4 deposition. Subsequently, Mr. Sykes was unable to continue with the deposition
after the parties took a break and Defendant was unable to cross-examine Mr. Sykes.
Delaware case law is instructive on determining when a party has had the
opportunity to develop testimony. For example, in Panaro v. J.C. Penny Co., Inc.,
the court stated “D.R.E. 804(b)(1) tracks F.R.E. 804(b)(1). F.R.E. 804(b)(1) allows
deposition testimony to be admitted at trial if the opponent had an opportunity and
motive to develop the testimony by direct, cross, or redirect examination. The federal
rules also allow the testimony if there was an opportunity to develop, not necessarily
complete, the testimony.”3 The court in Panaro held that although the discovery
deposition was not completed, “there [was] no question that [defendant’s] counsel
had motive and opportunity to cross-examine.”4 In Panaro the plaintiff was able to
complete direct examination on video, and defense was able to question the plaintiff
in a discovery deposition for an hour and a half.5 Here, Mr. Sykes’s videotaped trial
deposition began at 9:08 a.m. with his counsel’s direct examination, and at 9:57 a.m.
Mr. Sykes took a rest. Questioning resumed at 10:33 a.m. through 11:56 a.m.
Subsequently, Defense determined that they needed to take their discovery
deposition instead of cross examination. The parties who were present took a break
3 2002 WL 130692, at *2 (Del. Super. Jan. 11, 2002). 4 Id. 5 Id. 5 for lunch and attempted to resume around 12:36 p.m. Mr. Sykes was unable to
proceed, and he subsequently passed away two weeks later.
Based on the facts of this case the Court is not persuaded that Defendants had
a meaningful opportunity to develop Mr. Sykes’s testimony. Merely because
Defendants decided to postpone their cross examination following the videotaped
direct examination does not constitute a “waiver” of the opportunity for cross
examination as Plaintiff argues. Additionally, Superior Court Civil Rule 32 states
that “[a]t a trial or upon hearing of a motion or an interlocutory proceeding, any part
or all of a deposition, so far as admissible under the rules of evidence applied as
through the witness were then present and testifying, may be used against any party
who was present or represented at the taking of the deposition or who had reasonable
notice thereof . . .”6 The Court is not satisfied that the Defendant was “represented”
at the taking of the deposition under Rule 32 because Defendant did not have the
opportunity to cross-examine Mr. Sykes. Similarly, the Court is not persuaded by
the argument that Rule 32 and the Delaware Rules of Evidence are read
independently. Finally, as mentioned earlier in this Order, Plaintiff did not
demonstrate that the Special Master misconstrued facts or the law for this Court to
review. Rather Plaintiff rehashed arguments already decided before the Special
6 Super. Ct. Civ. R. 32 (emphasis added). 6 Master. For the aforementioned reasons and the reasons set forth in the Special
Master’s Order, the Special Master’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Calvin L. Scott The Honorable Calvin L. Scott, Jr.