DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
July Term 2012
ABBEY RICH, individually and as the Personal Representative of the
Estate of FRED H. RICH,
KAISER GYPSUM COMPANY, INC., R.T. VANDERBILT COMPANY,
INC., individually and as successor in interest to INTERNATIONAL
TALC CO., and UNION CARBIDE CORP.,
[ October 24, 2012 ]
ROSENBERG, ROBIN L., Associate Judge,
Abbey Rich, both in her individual capacity and as the personal
representative of her late husband’s estate, appeals a final judgment
entered by the trial court after a jury found that the defendants were not
liable for injuries her husband, Fred Rich, suffered as a result of
contracting mesothelioma.1 She raises five issues on appeal: (1) The trial
court erred by allowing the defendants to use the former testimony of
unavailable witnesses without establishing that the Riches, or their
predecessors in interest, were afforded an opportunity to examine the
witnesses; (2) the trial court erred by instructing the jury to answer a
question of law; (3) the trial court erred when it refused to strike the
testimony of an expert witness who was not properly disclosed until the
twelfth day of trial; (4) the trial court erred by allowing expert testimony
that was beyond the scope of the expert’s expertise; and (5) the trial court
erred by refusing to grant the Riches’ motion for new trial. We affirm on
all issues and write only to address the first issue raised by the Estate.
In 1957, the Riches moved into a home in Brooklyn, New York that
was located off of the Belt Parkway. Eighteen-wheelers used a nearby
service road, shaking the Riches’ home as they passed by. A crack
started to form in one of the downstairs bedrooms, and Fred took it upon
himself to repair it. For several years in the late 1960s and early 1970s,
Rich passed away while this appeal was pending.
he plastered the wall using Bondex-brand plaster.
Fred grew weary of applying plaster every month and, in
approximately 1960, decided to replace the walling with a piece of 8-by10 sheetrock made by Kaiser Gypsum. He used Kaiser Gypsum’s joint
compound to join the new board with the existing wall. Kaiser Gypsum’s
joint compound came in powder form, so Fred had to mix it with water
before he could apply it to sheetrock. The wall nevertheless continued to
crack, a n d Fred repeated the patch job using the Kaiser Gypsum
powdered joint compound once or twice per year through the 1960s. “GP
Ready-Mix,” a pre-mixed joint compound manufactured b y Georgia
Pacific, became available in the early 1970s, and Fred switched brands
so he would not have to mix his own joint compound.
In order to make the edges and surfaces smooth, Fred had to sand
down the plaster and joint compound after he was done patching the
crack or replacing the sheetrock. He breathed in the powder as he
sanded and, by the end of the day, he was always covered in dust.
Decades later, long after the Riches had retired to Florida, Fred started to
have trouble breathing. He was diagnosed with mesothelioma, an
incurable cancer of the lungs that is directly linked to asbestos exposure.
Fred Rich filed suit against Kaiser Gypsum, Union Carbide, and R.T.
Vanderbilt, alleging that the asbestos they used or manufactured caused
At trial, each defendant focused its respective arguments on Fred’s
exposure to its asbestos in particular.
Each defendant presented
testimony showing why its product could not have been purchased by
Fred or that it did not supply asbestos to the other defendants during the
relevant time period. Both Union Carbide and Kaiser Gypsum sought to
publish the former testimony of two unavailable witnesses to support
Union Carbide relied upon the deposition of William Lehnert, a former
employee of Georgia Pacific. Lehnert’s deposition was previously taken in
a case referred to as the “Kavanaugh” case in which Union Carbide was a
defendant. The plaintiff in Kavanaugh was a carpenter who also worked
with GP Ready-Mix. Lehnert’s deposition focused primarily on his use of
asbestos throughout his career and Georgia Pacific’s knowledge of its
harmful effects. He testified that in the mid to late 1960s, Georgia Pacific
primarily relied upon Philip Carey asbestos or alternatively, JohnsManville asbestos (rather than Union Carbide’s “Calidria” asbestos) in its
ready-mix joint compound. Additionally, Lehnert testified that Georgia
Pacific began making asbestos-free Ready-Mix starting in 1972.
Kaiser Gypsum relied upon the deposition of George Kirk, a historian
and former employee of the company. Kirk had previously testified in the
“Rendle” case, in which Kaiser Gypsum was a defendant. His deposition
focused on the asbestos contained within Kaiser Gypsum’s products as
well as Kaiser Gypsum’s manufacturing and distribution capabilities.
Specifically, Kirk testified that Kaiser Gypsum’s wallboard never
contained asbestos, while its pre-mixed compounds contained 2%
asbestos. He also testified that Kaiser Gypsum did not sell its joint
compound on the East Coast prior to 1968, and it began placing
warnings on its joint compound packaging beginning in 1972.
The Riches objected to both depositions, arguing that section 90.804,
Florida Statutes, requires that the party against whom the testimony is
being u s e d be in direct privity with his predecessor in interest.
Alternatively, the Riches argued that they did not share a similar motive
for cross-examination with the plaintiffs in the Kavanaugh and Rendle
cases. Their objections were overruled, and portions of the depositions
were read to the jury. Ultimately, the jury returned a verdict in favor of
all of the defendants.
Florida amended the Evidence Code in 1978 when it enacted Section
90.804, Florida Statutes, which provides as follows:
(2) Hearsay exceptions.--The following are not excluded
under s. 90.802 provided that the declarant is unavailable as
(a) Former testimony.--Testimony 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 a n opportunity a n d similar
motive to develop the testimony by direct, cross, or re-direct
This original language still remains in effect.
Since the section’s
enactment, there have been no appellate decisions in Florida defining the
term “predecessor in interest.”
The Legislative History of Section 90.804, Florida Statutes
Prior to the enactment of section 90.804, former testimony was
governed b y section 92.22, Florida Statutes.
Under that statute,
evidence from a previous trial would be admissible at a later trial if the
following five conditions were met:
(1) Such evidence has at such former trial been reported
stenographically or reduced to writing in the presence of the
(2) That the party against whom the evidence is offered, or
his privy, was a party on the former trial;
(3) That the issue is substantially the same in both cases;
(4) That a substantial reason is shown why the original
witness or document is not produced; and
(5) That the court is satisfied that the report of such evidence
taken at such former trial is a correct report.
§ 92.22, Fla. Stat. (1969) (emphasis added). Thus, the former rule was
amended, among other things, to require a predecessor in interest,
rather than a privy. “When the legislature makes a substantial and
material change in the language of a statute, it is presumed to have
intended some specific objective or alteration of the law, unless a
contrary indication is clear,” and “[w]e must give due significance to such
a change.” Caruso v. Caruso, 814 So. 2d 498 (Fla. 4th DCA 2002)
(citations and internal quotation marks omitted).
Section 92.22’s requirement that the former testimony must be
introduced against a “privy” of the party against whom it is offered was
narrowly construed in Osburn v. Stickel, 187 So. 2d 89 (Fla. 3d DCA
1966). In holding that the driver and passenger were not in privity
regarding their separate lawsuits against the driver of the other vehicle,
the court determined that there must b e a “mutual or successive
relationship to the same right,” and rejected the argument that the driver
and passenger were in privity because the passenger’s “right to recover, if
any, was not dependent upon the right of recovery of the [driver] in the
prior trial.” Id. at 91-92. The court adopted its reasoning from case law
considering the doctrine of res judicata, noting:
Privity does not arise from the mere fact that persons as
litigants are interested in the same question or in proving or
disproving the same state of facts.
Privity within the
meaning of the doctrine of res judicata is privity as it exists
in relationship to the subject matter of the litigation, and the
rule is construed strictly to mean parties claiming under the
same title. It denotes mutual or successive relationship
to the same right or property.
Id. at 92 n.2 (emphasis added) (quoting Sodak Distrib. Co. v. Wayne, 93
N.W.2d 791, 795 (S.D. 1958)).
Osburn remained the law in Florida on this issue until the enactment
of section 90.804(2)(a). When drafting section 90.804(2)(a), the Law
Revision Council cited to Osburn, but made no clear statement of an
intention to depart from its holding. The Council noted that some legal
scholars believed that strict privity should not be required, and that it
“ought, then, to be sufficient to inquire whether the former testimony was
given upon such an issue that the party opponent in that case had the
same interest and motive in his cross-examination that the present
opponent has; and the determination of this ought to be left entirely to
the trial judge. . . .” Id. (quoting 5 Wigmore, Evidence § 1388 (3d ed.
1940)); see also McCormick, Evidence § 256 (2d ed. 1972) (noting that
“identity of parties” is “a convenient phrase to indicate a situation where
the underlying requirement of adequacy of the present opponent’s
opportunity to cross-examine would usually be satisfied”). The Council,
however, did not expressly agree or disagree with either McCormick’s or
Wigmore’s treatises, leaving the courts with little guidance for
determining the significance of the change in language.
The Legislative History of Federal Rule of Evidence 804(b)(1)
While it is never cited by the Law Revision Council Notes to section
90.804(2), Federal Rule of Evidence 804(b)(1) was enacted shortly before
Florida amended section 90.804. Pub. L. No. 93-595, 88 Stat. 1926-49
(codified as amended at Fed. R. Evid. 804 (1976)). This is significant to
our analysis, as it not only uses the term “predecessor in interest,” but
the pertinent language in Rule 804(b)(1) mirrors section 90.804(2).2
Rule 804(b)(1), when it was enacted, allowed for the use of an unavailable
witness’s former testimony if certain requirements were met:
(b) Hearsay exceptions.--The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
The United States Supreme Court, in its original draft of Rule
804(b)(1), did not use the term predecessor in interest. Clay v. JohnsManville Sales Corp., 722 F.2d 1289, 1294 (6th Cir. 1983). Instead, the
original draft of the rule allowed for the admission of prior testimony of
an unavailable witness “if the party against whom it is offered or a
person ‘with a motive and interest’ similar to him had an opportunity to
examine that witness.” Id. (quoting H.R. Rep. 93-650, 93d Cong., 1st
Sess. 15 (1973)), reprinted in 1974 U.S. CODE CONG. & AD.NEWS 7051,
7088). The House of Representatives amended the rule to apply only to a
party’s “predecessor in interest.” Id. In explaining its decision, the
House Committee on the Judiciary stated:
The Committee considered that it is generally unfair to
impose upon the party against whom the hearsay evidence is
being offered responsibility for the manner in which the
witness was previously handled by another party. The sole
exception to this, in the Committee’s view, is when a party’s
predecessor in interest in a civil action or proceeding had an
opportunity and similar motive to examine the witness. The
Committee amended the Rule to reflect these policy
Id. The Senate adopted the change proposed by the House, but made its
own comments about the House’s changes:
Former testimony.-Rule 804(b)(1) as submitted by the Court
allowed prior testimony of an unavailable witness to be
admissible if the party against whom it is offered or a person
“with motive and interest similar” to his had an opportunity
to examine the witness.
(1) Former testimony.--Testimony 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.
(Emphasis added). Rule 804(b)(1) was amended in 2011, but the amendment
was “intended to be stylistic only.”
Advisory Committee Notes to 2011
Amendment to Fed. R. Evid. 804. There was “no intent to change any result in
any ruling on evidence admissibility.” Id.
The House amended the rule to apply on to a party’s
predecessor in interest. Although the committee recognizes
considerable merit to the rule submitted by the Supreme
Court, a position which has been advocated b y many
scholars and judges, we have concluded that the difference
between the two versions is not great and we accept the
Id. (quoting S. Rep. No. 93-1277 (1974)), reprinted in 1974 U.S.CODE
CONG. & AD.NEWS 7051, 7074). Thus, the legislative history of Rule
804(B)(1) is mixed: the House indicated that the amendment was a
significant change, whereas the Senate found it to be of little value.
The Federal Courts’ Interpretation of Rule 804(b)(1)
The federal courts’ interpretation of the Federal Rules of Evidence may
b e relied u p o n as a persuasive authority when interpreting the
corresponding provisions of the Florida Evidence Code. Yisrael v. State,
993 So. 2d 952, 957 n. 7 (Fla. 2008) (citing Sikes v. Seaboard Coast Line
R.R., 429 So. 2d 1216, 1221 (Fla. 1st DCA 1983)); see also Dominique v.
Yellow Freight Sys., Inc., 642 So. 2d 594, 596 (Fla. 4th DCA 1994)
(“[F]ederal decisions interpreting federal rules which are similar to
Florida’s rules are persuasive. . . .”).
Federal courts have interpreted Rule 804(b)(1) as requiring three
things: (1) the declarant is unavailable; (2) the testimony was taken at a
hearing, deposition, or civil action or proceeding; and (3) the party
against whom the testimony is now offered must have h a d an
opportunity and similar motive to develop the testimony by direct, cross,
or redirect examination. Kirk v. Raymark Indus., Inc., 61 F.3d 147, 164
(3d Cir. 1995) (citing Fed. R. Evid. 804(a)(5), (b)(1)). Courts have been
reluctant to interpret “predecessor in interest” narrowly, instead
choosing a broader interpretation that focuses on the similarity of the
motives for examination.
In Lloyd v. American Export Lines, Inc., the Third Circuit reviewed the
legislative history of Rule 804(b)(1), and agreed with the Senate that the
addition of the ‘predecessor in interest’ requirement was not a
“compelling difference between the two approaches.” 580 F.2d 1179,
1185 (3d Cir. 1978). The court ultimately determined that the rule was
designed “to strike a proper balance between the recognized risk of
introducing testimony of one not physically present on a witness stand
and the equally recognized risk of denying to the fact-finder important
relevant evidence.” Id. To that end, the court held that the party against
whom the former testimony was being offered need only have shared a
“sufficient community of interest” with a party who had the opportunity
to examine the witness. Id. “Irrespective of whether the interests could
be considered from the individual or public viewpoints, however, the
nucleus of operative facts was the same . . . . And although the results
sought in the two proceedings differed . . . the basic interest advanced by
both was that of determining culpability and, if appropriate, exacting a
penalty for the same condemned behavior thought to have occurred.” Id.
The Sixth Circuit similarly declined to interpret “predecessor in
interest” as requiring privity and adopted the position taken in Lloyd,
holding that a “previous party having a like motive to develop the
testimony about th e same material facts is, in the final analysis, a
predecessor in interest to the present party.” Clay, 722 F.2d at 1294-95.
In a later case, the court stated that Rule 804(b)(1) requires the moving
party to be 1) a predecessor in interest at the former proceeding who 2)
had an opportunity and similar motive to develop the testimony. Murphy
v. Owens-Illinois, Inc., 779 F.2d 340 (6th Cir. 1985). In reviewing its
decision in Clay, the court recognized it “has, in effect, collapsed the two
criteria into one test. . . .” Id.
Other circuits have also determined that “predecessor in interest”
does not require privity. See, e.g., Horne v. Owens-Corning Fiberglass
Corp., 4 F.3d 276, 283 (4th Cir. 1993) (“[P]rivity is not the gravamen of
the analysis. Instead, the party against whom the deposition is offered
must point up distinctions in her case not evident in the earlier litigation
that would preclude similar motives of witness examination.”); see also
New Eng. Mut. Life Ins. Co. v. Anderson, 888 F.2d 646 (10th Cir. 1989)
(relying upon Lloyd’s holding in determining that the party was not a
predecessor in interest).
No circuit h a s “expressly disavowed this
interpretation of Rule 804.” Culver v. Asbestos Defendants (BP), 2010 WL
5094698 (N.D. Cal. Dec. 08, 2010).
Florida Statute 90.804(2)(a)
We find the federal interpretation of “predecessor in interest” to be
persuasive and hold that section 90.804(2)(a), Florida Statutes, does not
require strict privity between a party and his “predecessor in interest.”
This interpretation is consistent with providing the requisite due
significance to the Florida Legislature’s changes in language as between
section 92.22 and 90.804(2)(a). See Caruso, 814 So. 2d at 502.
Having made this determination, we now address what the proponent
of the former testimony must show before it may be admitted at trial.
See U.S. v. Kennard, 472 F.3d 851, 856 (11th Cir. 2006) (stating that the
proponent of the former testimony has the burden of establishing that it
is not inadmissible hearsay).
“[T]he questioner must not only be on the same side of the same issue
at both proceedings but also must have a substantially similar degree of
interest in prevailing on that issue.” U.S. v. DiNapoli, 8 F.3d 909, 912
(2d. Cir. 1993). A similar motive is not the same as an identical motive,
so the inquiry is inherently fact specific. Battle ex rel. Battle v. Mem’l
Hosp. at Gulfport, 228 F.3d 544, 552 (5th Cir. 2000). “While the
availability of foregone cross-examination opportunities is one factor to
consider, it is not conclusive because examiners will frequently be able to
suggest lines of questioning that were not pursued at a prior proceeding.”
Kennard, 472 F.3d at 856 (citing DiNapoli, 8 F.3d at 914).
We agree and adopt the Third Circuit’s reasoning: “if it appears that in
the former suit a party having a like motive to cross-examine about the
same matter as the present party would have, was accorded an adequate
opportunity for such examination, the testimony may be received against
the present party.” Lloyd, 580 F.2d at 1187 (quoting McCormick on
Evidence § 257 p. 261 (2d ed. 1972)).
Application of Section 90.804(2)(a)
We now turn to the facts of the instant case to determine whether the
former testimony offered against Rich was properly admitted under
In Kavanaugh, the plaintiff alleged that he developed mesothelioma
after breathing in Union Carbide’s “Calidria” asbestos contained within
Georgia Pacific’s Ready Mix. In the instant case, Fred Rich alleged that
he developed mesothelioma after breathing in Union Carbide’s “Calidria”
asbestos contained within Georgia Pacific’s Ready-Mix. The Estate
argues that the plaintiff in Kavanaugh was not its predecessor in interest
because there was no similar motive to develop Lehnert’s testimony in
Kavanaugh since the product in that case was manufactured in Marietta,
Georgia rather than the Akron, New York plant at issue in this case. The
substance of the portions of Lehnert’s deposition that were admitted,
however, were not specific to the Marietta, Georgia plant. Rather,
Lehnert’s testimony was about Georgia Pacific’s general use of asbestos,
including its decision to remove asbestos from its products, the notice
and information that they had at the time they made the decision, and
how they implemented the decision.
We find that the plaintiff in Kavanaugh was the Riches’ predecessor in
interest. The two cases share the same defendant, the same ingredient,
the same product, the same injury, and the same issues regarding
Georgia Pacific’s general use of asbestos.
The parties shared a
substantially similar interest in cross-examining Lehnert on the topics of
his testimony. See Johns-Manville Sales Corp. v. Janssens, 463 So. 2d
242 (Fla. 1st DCA 1984) (noting that the “test for admissibility does not
depend on any factors affecting motive for cross-examination other than
the existence of substantial similarity of issues giving rise to a similar
motive to develop the testimony through cross-examination”). Under
these facts, the Riches shared a similar motive for examination with the
party that examined William Lehnert in Kavanaugh. The trial court
acted within its discretion when it admitted Lehnert’s deposition under
In Rendle, the plaintiff alleged that he developed mesothelioma after
breathing in asbestos contained within Kaiser Gypsum’s pre-mixed joint
compound. In the instant case, Fred Rich alleged that he developed
mesothelioma after breathing in asbestos contained within Kaiser
Gypsum’s powdered joint compound mix. The cases share a defendant
a n d an injury, b u t th e allegations involved two entirely different
products. An entirely different product in a products liability case is the
type of distinction that would “preclude similar motives of witness
examination.”3 Horne, 4 F.3d at 283. The evidence at trial established
that every product has a unique chemical composition, and courts have
been reluctant to find a similar motive when dealing with various forms
of asbestos. See, e.g., Lohrmann v. Pittsburgh Corning Corp., 782 F.2d
1156, 1161 (4th Cir. 1986) (holding that trial court correctly refused to
admit former testimony when the prior proceeding related to asbestos in
its raw form while the current proceeding related to asbestos in its
acknowledge Kaiser Gypsum’s argument that a great deal of Kirk’s
deposition was historical in nature and therefore admissible in the instant case.
See Dykes v. Raymark Indus., Inc., 801 F.2d 810, 817 (6th Cir. 1986) (noting
that testimony relating to historical facts is not the type of testimony that is
normally subject to refutation on cross-examination). This does not render the
prejudicial portion of Kirk’s deposition dealing with Kaiser Gypsum’s products
admissible. See Murphy v. Owens-Illinois, Inc., 779 F.2d 340, 344 (6th Cir.
Nevertheless, we find that any error in admitting Kirk’s deposition was
harmless. See Special v. Baux, 79 So. 3d 755, 771 (Fla. 4th DCA 2011)
(“To avoid a new trial, the beneficiary of the error in the trial court must
show on appeal that it is more likely than not that the error did not
influence the trier of fact and thereby contribute to the verdict.”). The
most damaging evidence presented by the deposition was Kirk’s
testimony that Kaiser Gypsum did not begin distributing joint compound
mix to the New York area until the 1960s or early 1970s (after Fred Rich
had switched to Georgia Pacific’s pre-mixed joint compound). This
evidence was cumulative when viewed in light of other evidence relied
u p o n by Kaiser Gypsum at trial.
In its answer to the Riches’
interrogatories, Kaiser Gypsum swore it did not manufacture one-day
joint compound until 1968. Additionally, Kaiser Gypsum did not rely
upon Kirk’s testimony during its closing argument. Counsel for Kaiser
Gypsum only argued that Fred Rich could not have bought its powdered
joint compound prior to 1968. It is more likely than not that any error in
admitting Kirk’s deposition did not influence the jury.
Because we have determined that the additional issues raised lack
merit, we affirm the verdict and judgment.
GROSS and LEVINE, JJ., concur.
Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T.
Case No. 08-055808 26.
Melissa D. Visconti and Juan Bauta of The Ferraro Law Firm, Miami,
Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Bice
Cole Law Firm, P.L., Coral Gables, for Appellee-Kaiser Gypsum Company,
Raoul G. Cantero, David P. Draigh and Kerri L. McNulty of White &
Case LLP, Miami, for Appellee-R.T. Vanderbilt Company.
Matthew J. Conigliaro of Carlton Fields, P.A., St. Petersburg, and
Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for AppelleeUnion Carbide Corporation.
Not final until disposition of timely filed motion for rehearing.