Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation, 2018)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, February 7, 2018).

William Don Sykes was diagnosed with mesothelioma in October 2013. His estate, represented by his son William Derek Sykes, sued Air & Liquid Systems Corp. and other defendants. Because Mr. Sykes was seriously ill, the parties arranged an expedited videotaped trial deposition in April 2014. His own lawyer questioned him, but the defendants chose to take a discovery deposition rather than cross-examine at that point. After a break he could not continue, and he died about two weeks later. The defendants moved to exclude the video as hearsay. A Special Master agreed, finding no meaningful opportunity for cross-examination. The estate objected, arguing the testimony was admissible under the former-testimony exception, D.R.E. 804(b)(1), and under Superior Court Civil Rule 32. The Superior Court reviewed the matter anew and affirmed. It held that the defendants did not have a meaningful opportunity to develop the testimony, that delaying cross-examination was not a waiver, and that the defendants were not "represented" at the deposition under Rule 32. The court also found the estate mostly repeated arguments the Special Master had already decided.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Delaware Superior Court
• Decided: February 7, 2018
• Stage: Appeal from discovery or evidence ruling
• State: Delaware

Outcome. The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.

What the court held. Deposition testimony of an unavailable declarant is not admissible under D.R.E. 804(b)(1) or Superior Court Civil Rule 32 when the opposing party did not have a meaningful opportunity to cross-examine; postponing cross-examination is not a waiver.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• William Don Sykes: mesothelioma; died

The defendants

• Air & Liquid Systems Corp.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (August 30, 2017). The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (August 30, 2017). The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE: ASBESTOS LITIGATION.

WILLIAM DEREK SYKES, as personal Representative of the Estate of WILLIAM DON SYKES,

Plaintiff,

v.

AIR & LIQUID SYSTEMS CORP., etal., Defendants.

C.A. No. N14C-03-028 ASB.

Decided: February 7, 2018.

Superior Court of Delaware.

Upon Plaintiff's Exceptions to the Special Master's Decision. AFFIRMED.

CALVIN L. SCOTT, Jr., Judge.

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 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 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 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 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 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.

[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."). [2] D.R.E. 804(b)(1).

[3] 2002 WL 130692, at [*2] (Del. Super. Jan. 11, 2002).

[4] Id.

[5] Id.

[6] Super. Ct. Civ. R. 32 (emphasis added).

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites