Kirk settled the instant action with Garlock and several other defendants prior to trial. At trial, Owens- Corning sought in its cross-claim to prove that the decedent was exposed to products made by Garlock. If the jury were to conclude that the decedent's injuries had been caused in whole or part by exposure to Garlock products, then Owens- Corning could eliminate or substantially reduce its liability.
Conversely, it was in Kirk's financial interest to prove that the decedent was exposed to only Owens-Corning products. In an effort to rebut the testimony of an Owens- Corning witness who testified that Garlock gaskets were present in the New York shipyard during the years that the decedent worked there, Kirk read into evidence an interrogatory response which was prepared and filed by Garlock in defense of this action. Of course, at the time this interrogatory was read to the jury, Garlock was no longer a party to this lawsuit. Specifically, counsel for Kirk read the following statement to the jury: Since Garlock products are bonded and/or encapsulated and treated in such a manner that they do not, when used in the manner for which they were intended, emit meaningful levels of asbestos dust and fibers, no restrictions or limitations on use are necessary. App. at 513.
In response to Owens-Corning's closing remarks, counsel for Kirk reminded the jury: I read you from the Garlock interrogatory, Garlock product is bonded, encapsulated, it does not emit dust. App. at 545. Owens-Corning argues that the district court erred in admitting this interrogatory response because the interrogatory answer was pure hearsay. Kirk attempts to justify the admission of this interrogatory response under the catch-all or residual exception, Rule 803(24) of the Federal Rules of Evidence.[fn13] As stated previously, our standard of review is plenary where the admissibility of hearsay evidence "implicates the application of a legally set standard." See supra part III. As a preliminary matter, we note that the plain language of the rule requires the proponent of the hearsay statement to put the adverse party on notice that the proponent intends to introduce the statement into evidence. We have interpreted this to mean that the proponent must give notice of the hearsay statement itself as well as the proponent's intention specifically to rely on the rule as a grounds for admissibility of the hearsay statement. United States v. Pelullo, 964 F.2d 193, 202 (3d Cir. 1992) (citing United States v. Furst, 886 F.2d 558, 574 (3d Cir. 1989)). Even assuming arguendo that Owens-Corning was on notice that Kirk intended to introduce this evidence at trial, we observe from the record that Kirk never gave notice to Owens-Corning that she intended to introduce this evidence under Rule 803(24). App. at 512. We recognize that the advance notice requirement of Rule 803(24) can be met where the proponent of the evidence is without fault in failing to notify his adversary and the trial judge has offered sufficient time, by means of granting a continuance, for the opponent to prepare to contest its admission. See United States v. Bailey, 581 F.2d 341, 348 (3d Cir. 1978) (the purposes of the rule and the requirement of fairness are satisfied under such circumstances).
Because of the lack of notice by Kirk that she intended to rely on Rule 803(24) and the lack of a showing by Kirk as to why it was not possible to provide Owens-Corning with notice, the district court erred in admitting this evidence at trial. Turning to the substance of the rule itself, we note that in order for the hearsay statement to be admitted, it must have "equivalent circumstantial guarantees of trustworthiness." Fed. R. Evid. 803(24); see also Michael H. Graham, Federal Practice and Procedure: Evidence ß 6775, at 737-39 (Interim Edition 1992) (factors bearing on trustworthiness include the declarant's partiality, i.e., interest or bias). Owens-Corning argues that the interrogatories of Garlock lack trustworthiness and are self-serving. Kirk submits that the interrogatory answers are trustworthy because they are signed and sworn under penalty of perjury.[fn14] We find that an interrogatory response of a co-defendant who is seeking to avoid liability lacks the "circumstantial guarantees of trustworthiness" that are contemplated by Rule 803(24) of the Federal Rules of Evidence. Garlock had every incentive to set forth the facts in a light most favorable to itself, while at the same time still answering the interrogatories truthfully. See United States v. DeLuca, 692 F.2d 1277, 1285 (9th Cir. 1982) (excluding statement under residual hearsay exception because of motive to exculpate oneself after indictment or investigation). Using these interrogatory responses to prove that Garlock products could not have caused the decedent's illness without the opportunity for cross- examination implicates many of the dangers the hearsay rule is designed to prevent. Accordingly, the district court erred in admitting this evidence. V. Delay Damages.
Finally, Owens-Corning argues that it was improper as a matter of law for the district court to award delay damages to the plaintiff pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure because it is a procedural rule and should not be applied by federal courts sitting in diversity. Owens-Corning argues in the alternative that even if it is permissible for a federal court sitting in diversity to award delay damages pursuant to Rule 238, it was improper here because: (1) the entire delay was caused by the plaintiff's strategic decision to file simultaneous federal and state court actions and her failure to request a remand of the federal action from the multidistrict docket when settlement negotiations reached an impasse and (2) the district court miscalculated the damage award in failing to account for a delay of approximately two years that was caused by a judicial stay imposed by the Panel on Multidistrict Litigation. Owens-Corning maintains that because it was not responsible for the delay, it should not be required to pay delay damages for that period.
0 Yorum var:
Sen de yaz