In Burkhart v. H.J. Heinz Co., 2014-Ohio-3766, the Ohio Supreme Court interpreted Evid.R. 804(B)(1), which requires a party to demonstrate the former testimony being offered is (1) against a party or that party’s predecessor-in-interest, that had the opportunity to cross-examine the declarant and (2) had a similar motiving in developing the former testimony. The decision is not as limited in practice as it seems. The court left undefined the keystone of the predecessor-in-interest analysis, whether the parties share a legally recognized interest.
In Burkhart, a widow filed a claim against H.J. Heinz seeking workers compensation benefits following the death of her husband from mesothelioma, caused by exposure to asbestos while working for Heinz. In a prior product-liability action, the husband testified against various asbestos manufacturers. In the workers compensation action, the widow attempted to introduce her husband’s prior testimony to establish exposure to asbestos causing his malignant pleural mesothelioma. Without that testimony, there was no evidence that the workplace exposures caused the occupational disease.
While holding that the term “predecessor-in-interest” is generally treated as interchangeable with the phrase “persons in privity,” in deciding the case, the court held that a predecessor-in-interest shares a legally recognized interest with the party against whom the evidence is offered. Providing two examples, the majority stated that “[n]othing indicates or suggests that any of these [manufacturers] preceded H.J. Heinz in the ownership of its business or its facilities. Nor is there any showing in this record that any of these manufacturers sold the pipe insulation that allegedly caused [the husbands’s] exposure to asbestos at the H.J. Heinz facilities. Burkhart at ¶ 33.
As the court explained, it was a legally recognized interest, not just privity, that “assuage[d] ‘the historical concern that it is generally unfair to impose upon the party against whom the hearsay evidence is offered responsibility for the manner with which the witness was handled by another party.’” Id. quoting Weissenberger, Ohio Evidence, Section 804.16, at 233. Had the widow, in Burkhart, demonstrated that the prior asbestos manufacturers had sold the pipe insulation to Heinz that caused her husband’s mesothelioma, that would have created a “legally recognized interest” satisfying the predecessor-in-interest prong and the analysis would have shifted to the second prong of the Evid.R. 804(B)(1) analysis.
As narrow as the Burkhart decision seems, in practice the future value of the decision should be limited to the concept that there are two separate and distinct prongs to the foundation to introduce former testimony; whether the party or its predecessor-in-interest had the opportunity to cross-examine the declarant and possessed a similar motive to develop the testimony. Beyond that, the phrase “legally recognized interests” will need clarification and likely be the subject of further debate.
