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.




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