IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:

CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the rules of evidence, may be used . . . by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not admissible under CPLR 3117 (a) (3) … . …

Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s 2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s deposition testimony should have been admitted into evidence at this trial. Although a live witness may be impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier actions and selectively playing those portions they believed supported their respective contentions. The jury was essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19