Pennsylvania Record

Friday, February 21, 2020

Defendants waiting to see how Superior Court ruling that allowed incomplete testimony affects Pa. asbestos cases

State Court

By Nicholas Malfitano | Dec 12, 2019


HARRISBURG – In a seemingly unprecedented move, a recent decision from the Superior Court of Pennsylvania allowed deposition testimony and an affidavit from an “unavailable witness" who had not been vetted by all defendants before he passed.

On Oct. 29, a trio of judges from the Superior Court reversed the decision of a trial court that precluded plaintiff Joyce E. Kardos from using incomplete deposition testimony and an affidavit of a deceased plaintiff/claimant, to oppose summary judgment and granted summary judgment to certain defendants. The court sent the case back to the Allegheny County Court of Common Pleas for further proceedings.

Due to alleged asbestos exposure incurred through his work, decedent Nicholas Kardos developed mesothelioma in January 2016. Before arguments for summary judgment, the parties participated in an inspection of the job site in question. Kardos executed a sworn affidavit outlining his work duties and alleged asbestos exposures, and he was deposed over the course of three days in October 2016.

The complete list of the defendants did not have the opportunity to cross-examine Kardos and at the end of three days, questioning had not been completed. A fourth day of questioning was not scheduled, despite the incomplete nature of the testimony, and Kardos died about one week later.

The defendants who did not question Mr. Kardos when he was deposed, prior to his death, collectively filed motions to preclude his wife Joyce from relying upon his affidavit and incomplete deposition testimony in opposition to summary judgment motions or at trial.

The Allegheny County Court of Common Pleas granted the motion and ruled that Joyce could not use her late husband’s affidavit and deposition testimony to oppose summary judgment motions. Without the product identification set forth in Mr. Kardos’ affidavit and deposition, the trial court then granted the motions for summary judgment of those defendants who had moved to preclude that evidence.

In reversing the trial court’s ruling, the Superior Court held that the affidavit and incomplete deposition of Mr. Kardos were proper evidence and “supporting affidavits in response to a motion for summary Judgment are acceptable as proof of facts, as long as it does not contradict the affiant’s testimony.”

“The underlying benefit really is to the plaintiffs, because essentially, they’re able to move forward at the summary judgment stage with testimony that may not have been or in this case, was not, vetted or cross-examined by the defendants, and it ultimately was used to implicate,” said Melissa Devich Cochran of Steptoe & Johnson in Pittsburgh.

“The defense position on that is that the use of the incomplete testimony and the affidavit is precluding their ability to defend the case and their right to cross-examine, and the plaintiffs are able to go forward with record evidence that typically, would be excluded because it has not been cross-examined.”

In reference to the deposition testimony, the Court further ruled that “depositions are sufficient lawful proceedings, which warrant admission at trial when the deponent is unavailable and cannot testify” – and cited both Pennsylvania Rules of Civil Procedure 804(b)(1)(B) and U.S. Court of Appeals for the Third Circuit case law, in ruling that “the general admissibility of depositions at summary judgment and trial even applies when the deposition is unfinished due to the deponent’s illness or death.”

Cochran referred to the Pennsylvania Rules of Evidence and a case from the Philadelphia County Court of Common Pleas, Mariner Chestnut Partners, L.P. v. Lenfest Et.Al, which had previously succeeded in barring similar evidence as was later allowed here by the Superior Court.

“This Kardos case appears to be the first time this issue has been taken to the appellate court in asbestos litigation, so I guess to some extent, it is unprecedented in this litigation. It doesn’t appear that anyone has appealed it to the Supreme Court of Pennsylvania,” Cochran stated.

“I think we’ll just have to see how it plays out as we go through the next several trial lists here in Allegheny County and see the impact that it actually has on how we are conducting our depositions and how plaintiffs are presenting their evidence, and we’ll see if this is something that’s either going to result in further appeals, or whether this is just going to be the new lay of the land in this litigation.”

Superior Court of Pennsylvania case 62 WDA 2018

Allegheny County Court of Common Pleas case GD-16-003521

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Superior Court of Pennsylvania Steptoe & Johnson PLLC

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