         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


BARBARA J. OGG, as Surviving                )
Spouse and as Administratrix                )
of THE ESTATE OF                            )
CHARLES OGG,                                )
                 Plaintiffs,                )
                                            )
              v.                            )       C.A. No. N15C-07-160 ASB
                                            )
                                            )
THE FORD MOTOR COMPANY,                     )
ET. AL,                                     )
             Defendants.                    )

                              SUPPLEMENTAL ORDER1

                                  Submitted: June 2, 2020
                                   Decided: July 1, 2020

                   Upon Consideration of Defendants’ Joint Submission
                     Requesting Affidavits Be Deemed Inadmissible,
                                       DENIED.




Raeann Warner, Esquire of Jacobs & Crumplar, P.A., Wilmington, Delaware.
Attorneys for Plaintiffs.

Loreto P. Rufo, Esquire, Wilmington, Delaware. Defense Coordinating Counsel.

MEDINILLA, J.

1
  Considering admissibility only as presented in Defendants’ Joint Submission in Support of
Summary Judgment Pertaining to the Issue of Admissibility of the Affidavits of Charles Ogg Dated
July 16, 2014 and October 8, 2014.
                                                1
                                   I.   INTRODUCTION
       Plaintiffs, Barbara Ogg, as surviving spouse and as Administratrix of the

Estate of Charles Ogg (Plaintiffs) assert claims against Defendants alleging that

Charles Ogg (“Mr. Ogg”) suffered severe asbestosis from his exposure to asbestos

and asbestos-containing products. Remaining Defendants moved this Court for

summary judgment of all claims. During oral arguments on November 21, 2019, the

focus shifted to the issue of the admissibility of affidavits executed by Mr. Ogg in

the months and days before his death. A hearsay objection was raised in one of

Defendant’s Reply to Plaintiffs’ Opposition for Summary Judgment.                         Since

Plaintiffs requested time to respond and all Defendants indicated intent to file this

joint submission on the issue of the admissibility of the affidavits, the Court agreed

that additional briefing was appropriate.2 Upon consideration of the arguments,

proffers of evidence as set forth by parties, and the record in this case, the Court

hereby finds the affidavits are admissible as residual exceptions to the hearsay rule

under Delaware Rules of Evidence (D.R.E.) 807.




2
  On January 27, 2020, Plaintiffs submitted a Sur-Reply in Opposition to Defendants’ Summary
Judgment Argument Pertaining to Issues Regarding the Admissibility of Mr. Ogg’s Affidavits. On
March 16, 2020, Defendants submitted a Joint Submission in Support of Summary Judgment
pertaining to the Issue of Admissibility of Mr. Ogg’s Affidavits. Because of the timing of the
filing of these supplemental pleadings and briefing that concluded immediately before the COVID-
19 pandemic, the Court received notice from Defense Coordinating Counsel in April 2020 that all
submissions had been filed. On May 28, 2020, in response to a follow-up from the Court, the
parties requested time to confer before the Court issued its ruling. On June 2, 2020, the parties
confirmed via e-mail they required a decision.
                                               2
                            II.    FACTUAL BACKGROUND3
       Mr. Ogg died on October 19, 2014. Three months prior, he executed his first

affidavit on July 16, 2014 wherein he provided sworn statements regarding his work

history and potential exposure to asbestos-containing products.4 The next day, he

presented to his pulmonologist’s office with increased medical issues, required

hospitalization for severe end stage pulmonary fibrosis, and was discharged one

week later on July 24, 2014.

       He required medical treatment one month later at an intensive care unit, where

he and his family received his prognosis and treatment options for his terminal

disease. In early September of 2014, Mr. Ogg agreed to a “Do Not Resuscitate”

status. Upon discharge from the hospital on September 4, 2014, Mr. Ogg’s diagnosis

was end-stage advanced idiopathic pulmonary fibrosis with poor prognosis for long-

term survival. Hospice care was determined appropriate and Mr. Ogg went home.

       Eleven days before his death, on October 8, 2014, Mr. Ogg executed his

second affidavit.5 His pre-suit deposition regarding past asbestos exposure and

disease was scheduled for October 21, 2014. The deposition did not take place

because he died two days prior on October 19, 2014.


3
  The Court only highlights the relevant factual history pertaining to the admissibility of Mr. Ogg’s
July 16, 2014 and October 8, 2014 affidavits.
4
  Plaintiffs’ Sur-Reply in Opposition to Defendants’ Motion for Summary Judgment, Exhibit 1 at
pages 1-2 [hereinafter “July Affidavit.”].
5
  Plaintiffs’ Sur-Reply in Opposition to Defendants’ Motion for Summary Judgment, Exhibit 1 at
pages 3-7 [hereinafter “Oct. Affidavit.”].
                                                 3
       The parties seek a determination of the admissibility of the two affidavits

under D.R.E. 804(b)(2) and 807.

                           III.    PARTY CONTENTIONS
       Plaintiffs intend to admit Mr. Ogg’s affidavits to establish product

identification, and in support of their experts’ opinions on causation. Plaintiffs argue

the affidavits are admissible (1) as dying declarations under D.R.E. 804(b)(2); (2)

under the residual hearsay exception pursuant to D.R.E. 807; or (3) in the alternative,

admissible for expert reliance in issuing expert testimony under D.R.E. 703.6

Defendants argue that affidavits are inadmissible (1) as dying declarations because

a there was a “significant lapse of time” between execution of both affidavits and

Mr. Ogg’s death; (2) as hearsay under the residual hearsay exception because

trustworthiness of the documents is not guaranteed and where admission is not in

the interest of justice.


                                  IV.     DISCUSSION
       An out-of-court written or verbal statement by someone other than the

declarant testifying offered in evidence to prove the truth of the matter asserted

qualifies as hearsay.7 “Hearsay is generally inadmissible unless the statement is




6
  Defendants did not address admissibility under D.R.E. 703 where the submissions requested by
the Court were limited to considerations under D.R.E. Rules 804(b)(2) and 807.
7
  D.R.E. 801(a), (c).
                                              4
privy to a recognized exception to the hearsay rule.”8 The Court considers the two

hearsay exceptions under D.R.E. 804(b)(2) and 807.


           A. Affidavits Not Admissible as Dying Declarations

       Under D.R.E. 804(b)(2), a “[s]tatement under belief of impending death,” also

known as a “dying declaration,” is considered an exception to the hearsay rule.9

Specifically, a “dying declaration” is “not excluded by the hearsay rule if the

declarant is unavailable as a witness[.]”10 A witness is certainly unavailable if

“unable to be present or to testify at the hearing because of death.” 11 Although Mr.

Ogg is indeed unavailable, more is required to satisfy this exception.

       For an affidavit to be admissible as a “dying declaration” under D.R.E.

804(b)(2), “the party proffering the hearsay statement must establish that death was

‘imminent’ at the time the statement was made, and that the statement concerned the

cause or circumstances of the declarant’s death.”12                To determine whether a

statement was made “under a sense of impending death,” courts look to declarant’s



8
  State v. Davenport, 2015 WL 994837, at *2 (Del. Super. Ct. Mar. 4, 2015) (citing D.R.E. 802,
803, 804; Culp v. State, 766 A,2d 486, 489 (Del. 2001)).
9
  D.R.E. 804(b)(2).
10
   Id.
11
   State v. Johnson, 2001 WL 428685, at *4 (Del. Super. Ct. Apr. 19, 2001) (quoting D.R.E.
804(a)(4)).
12
   Stigliano v. Anchor Packing Co., 2006 WL 3026168, at *1 (Del. Super. Ct. Oct. 18, 2006) (citing
D.R.E. 804(b)(2)). See Johnson, 2001 WL 428685, at *4 (citing Mattox v. United States, 146 U.S.
140, 151 (1892); State v. Van Winkle, Del. Oyer & Term., 86 A. 310, 311 (1913)) (“A party who
attempts to offer a ‘statement made under belief of impending death’ into evidence must establish
that the statement was made under a sense of impending death.”).
                                                5
state of mind during a time when the declarant must have felt or known that he would

not survive.13

       The Court is guided by similar considerations in Stigliano v. Anchor Packing

Co. (“Stigliano”). There, an affidavit executed 73 days before declarant’s death was

determined inadmissible as a “dying declaration.”14 The time-gap was an indication

that “[d]eath was not . . . imminent at the time the affidavit was made.”15 Similarly,

in Collins v. Ashland Inc., the affidavit was inadmissible as a “dying declaration”

because the statements issued “were not made under the sense of impending death”16

where a period of 149 days had lapsed between the execution of the decedent’s

affidavit and his death.17 Here, neither affidavit satisfies the exception requirements

under 804(b)(2).

       The first affidavit was executed 95 days before Mr. Ogg’s death;18 the second,


13
   Johnson, 2001 WL 428685, at *4 (citing MCLAUGHLIN, WEINSTEIN AND BERGER, WEINSTEIN’S
FEDERAL EVIDENCE § 804.05[3] (2d ed. 2000)). See Shepard v. United States, 290 U.S. 96, 99–
100 (1933) (“[T]he declarant must have spoken without hope of recovery and in the shadow of
impending death . . . . Fear or even belief that illness will end in death will not avail itself to make
a dying declaration. There must be ‘a settled hopeless expectation’ that death is near at hand, and
what is said must have been spoken in the hush of its impending presence . . . . What is decisive is
the state of mind. Even so, the state of mind must be exhibited in the evidence, and not left to
conjecture. The patient must have spoken with the consciousness of a swift and certain doom.”).
14
   Stigliano, 2006 WL 3026168, at *1 (citing D.R.E. 804(b)(2)).
15
   Id.
16
   Collins v. Ashland, Inc., 2008 WL 3321848, at *2 (Del. Super. Ct. Aug. 12, 2008) (citing D.R.E.
804(b)(2): “[a] statement made by a declarant while believing that the declarant's death was
imminent, concerning the cause or circumstances of what the declarant believed to be the
declarant's impending death.”)).
17
   Id. (citing Stigliano, 2006 WL 3026168, at *1 (finding that a hearsay statement made seventy-
three days before the declarant’s death lacked imminence)).
18
   July Affidavit.
                                                   6
11 days prior.19 The July Affidavit was not executed “under a sense of impending

death” as required under 804(b)(2).20 Although the October Affidavit certainly came

closer to his final days, the record reflects that Mr. Ogg and his counsel contemplated

he would have time to provide additional statements at his deposition on October 21.

These would not be his final words. Therefore, as in Stigliano and Collins, this Court

finds that the lapse in time between Mr. Ogg’s death and the execution of the

affidavit “precludes a finding of imminence needed to satisfy the dying declaration

exception.”21 Therefore, neither affidavit is admissible as a dying declaration under

D.R.E. 804(b)(2).

           B. Affidavits Admissible as Residual Exceptions to The Hearsay Rule
       A hearsay statement, not admissible under D.R.E. 803 or 804, can be

considered under the residual hearsay exception as a statement,

       having equivalent circumstantial guarantees of trustworthiness . . . if
       the court determines that: (A) the statement is offered as evidence of a
       material fact; (B) the statement is more probative on the point for which
       it is offered than any other evidence which the proponent can procure
       through reasonable efforts; and (C) the general purposes of these rules
       and the interests of justice will best be served by admission of the
       statement into evidence.22




19
   October Affidavit.
20
   Johnson, 2001 WL 428685, at *4 (citing MCLAUGHLIN, WEINSTEIN AND BERGER, WEINSTEIN’S
FEDERAL EVIDENCE § 804.05[3] (2d ed. 2000)). See Shepard, 290 U.S. at 99–100.
21
   Collins, 2008 WL 3321848, at *2 (citing Stigliano, 2006 WL 3026168, at *1).
22
   Holloman v. Metzger, No. 17-79, slip op. at 10 (D. Del. Mar. 23, 2020); see Purnell v. State, 979
A.2d 1102, 1107 (Del. 2009).
                                                 7
The “residual exception” to the hearsay rule must be “construed narrowly so that the

exception does not swallow the hearsay rule.”23 For a hearsay statement to be held

as admissible under this exception, “[t]he Court must be satisfied that there is a

guaranty of trustworthiness associated with the proffered hearsay statement that is

equivalent to the guaranties of trustworthiness recognized and implicit in the other

hearsay exceptions.”24

       First, the affidavits are offered as evidence of material facts, and critical to

Plaintiffs’ claims on the issue of product identification that also support the

Plaintiffs’ experts on their causation opinions. Second, the Court finds that the

affidavits are “more probative on the point for which [they are] offered than any

other evidence which the proponent can procure through reasonable efforts[.]” 25 Mr.

Ogg’s statements recount in great detail where and when he potentially worked with

Defendants’ products. Defendants’ argument that the more probative evidence is

from the testimony of the independent witnesses expected to confirm some of what

is found in Mr. Ogg’s affidavits is unavailing. Though co-workers and family

members can corroborate statements from the affidavits, such testimony speaks to

the reliability and trustworthiness of the affidavits – not their probative value. The

most probative value comes from Mr. Ogg’s own account of work history and


23
   Stigliano, 2006 WL 3026168, at *1 (quoting Cabrera v. State, 840 A.2d 1256, 1268 (Del. 2004)).
24
   Id. (citing Odaho v. Wright, 110 S.Ct. 3139, 3147 (1990)); see Purnell, 979 A.2d at 1107.
25
   Holloman, No. 17-79, slip op. at 10.
                                               8
exposure.

       This Court is satisfied that, unlike Stigliano that found the affidavit lacked the

required trustworthiness under D.R.E. 807, here there is a guaranty of

trustworthiness associated with the proffered hearsay statements equivalent to those

implicit in the other hearsay exceptions. In Stigliano what proved fatal to the

admissibility of the affidavit was that the affiant, previously deposed four times prior

to executing the affidavit at issue, had “not once . . . recount[ed] exposure to

[defendant’s] products,” as mentioned in the affidavit.26 The Stigliano Court found

that “given the substantial deposition record on the product nexus issue[,]” it could

not conclude that the post-deposition affidavit was “more probative on the [product

nexus] point for which it [was] offered than any other evidence” on that record.27

Unlike the deposition record of the deceased affiant in Stigliano, here there is no

post-deposition record nor any evidence of contrary statements made by Mr. Ogg.

       Third, the Court finds that the “general purposes of [the hearsay] rules and the

interests of justice will best be served by admission of the statements into

evidence.”28 Although Defendants argue they cannot challenge the credibility of his

accounts, the question before this Court is as to the admissibility—not the

credibility—of      the    affidavits.    The    jury   decides    issues   related   to


26
   Stigliano, 2006 WL 3026168, at *1.
27
   Id. (quoting D.R.E. 807(b)).
28
   Holloman, No. 17-79, slip op. at 10.
                                           9
witness credibility and resolves conflicts in testimony, if any.29 Thus, Defendants

will have the opportunity to present impeachment evidence to undermine Mr. Ogg’s

statements or accounts—through the testimony of corporate representatives and the

cross-examination of Mr. Ogg’s co-workers and family, expected to corroborate his

statements. Defendants can argue what weight they believe the jury should afford

Mr. Ogg’s affidavits and why.30 Both affidavits are sufficiently trustworthy for

purposes of admissibility under D.R.E. 807. For these reasons, both affidavits are

admissible as “residual exceptions” to the hearsay rule.




29
   See Poon v. State, 880 A.2d 236, 238 (Del. 2005) (internal citations omitted) (“[I]t is the sole
province of the fact finder to determine witness credibility, resolve conflicts in testimony and draw
any inferences from the proven facts.”).
30
   State v. Dixon, 2011 WL 7404275, at *6 (Del. Super. Ct. Dec. 6, 2011) (“It is the jury’s
obligation to listen to all of the evidence, to weigh credibility, and then make a decision, if possible,
as to what took place.”).
                                                  10
                                    V.     CONCLUSION

       For the foregoing reasons, Mr. Ogg’s affidavits are: (1) inadmissible under

D.R.E. 804(b)(2) as “dying declarations;” (2) admissible under D.R.E. 807(a) as

“residual exceptions” to the hearsay rule; and (3) not considered under D.R.E. 703.31

Counsel must notify the Court if the parties wish to schedule any remaining issues

on Defendants’ Motions for Summary Judgment.

       IT IS SO ORDERED.




                                                            /s/ Vivian L. Medinilla
                                                            Vivian L. Medinilla
                                                            Judge
oc:    Prothonotary




31
   Plaintiffs’ alternative request under D.R.E. 703 that provides that “[a]n expert may base an
opinion on facts or data in the case that the expert has been made aware of or personally observed”
is outside of the submissions requested by the Court and not necessary in light of this ruling.
                                                11
