Mesothelioma and Asbestos Lung Cancer - Asbestos Lawyer
App. at 76-79. [fn4] . Relevant portions of the voir dire are as follows:
The Court: In this case, sir, if you are on this jury can you well and truly try the case based on the evidence as it comes forth from the witness stand and not, with all respects [sic] to the media, based on TV, or radio or newspapers and all of that? Do you think you could do that, sir?
Juror 45: Yes, I believe so, because it's possible it could be slanted one way or the other. . . . .
The Court: So you answered that you could not be fair to companies that made, distributed, supplied and/or installed asbestos- containing products, what do you mean by that?
Juror 45: Basically I feel it's sort of immoral to knowingly produce something you know is going to cause a problem.
The Court: Do you think it's immoral -- I am not saying this is the case -- to produce something when they don't know anything is wrong with it, they don't know but it turns out later there is something wrong with it?
Juror 45: I feel if they do find out it should be corrected. . . . . The Court: [D]o you think you could be fair?
Juror 45: Yes.
Mr. Hewitt: One question, if the evidence is that Owens Corning knew that asbestos was hazardous would you have a tough time giving them a fair shake?
Juror 45: Yes, I would.
The Court: What do you mean by giving them a fair shake? Would you have a tough time coming up with a verdict in their favor if you know the [sic] under the evidence and the law they are liable?
Juror 45: Well --
The Court: I would tell you if it comes in, if the evidence and the law did not demonstrate that the plaintiff proved their [sic] case, I am not saying that is not being fair to the defendant, you are being fair, just as you would be fair to the plaintiff if after fairly considering the evidence you find there's not a case made out, you would nevertheless find against her, you are abiding by your oath as a juror.
Juror 45: Whatever you say, yes.
App. at 64-66. [fn5] . Alternatively, Kirk argues that assuming arguendo it was error to admit the testimony of Dr. Burgher, it was harmless error because the weight of the medical testimony of Kirk's other witnesses was overwhelming. In light of our decision to remand for a new trial because the jury was improperly constituted, we need not address whether any evidentiary errors may be harmless. [fn6] . Rule 801(d) of the Federal Rules of Evidence states in relevant part:
(d) Statements which are not hearsay. A statement is not hearsay if -- (2) Admission by party-opponent. The statement is offered against a party and is . . . (C) a statement by a person authorized by the party to make a statement concerning the subject.
Fed. R. Evid. 801(d)(2)(C) (emphasis added). [fn7] . In the case before us, unlike Collins, there was no explicit finding on the record that Dr. Burgher was an agent of the defendant. To the extent that Collins holds that an expert witness who is hired to testify on behalf of a party is automatically an agent of that party who called him and consequently his testimony can be admitted as non-hearsay in future proceedings, we reject this rule. [fn8] . Rule 804 of the Federal Rules of Evidence states in relevant part:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or 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.
Fed. R. Evid. 804(b)(1) (emphasis supplied).
"Unavailability" is defined in Rule 804 as follows:
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant --
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means.
Fed. R. Evid. 804(a)(5) (emphasis supplied). [fn9] . Rule 45 of the Federal Rules of Civil Procedure states in relevant part:
(c) Protection of Persons Subject to Subpoenas. (3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it -- (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person . . . .
Fed. R. Civ. P. 45(c)(3)(A)(ii). [fn10] . At oral argument, Kirk argued that it was the responsibility of Owens-Corning to locate and contact Dr. Burgher and establish his availability because the district court requested Owens-Corning to determine whether he would be available to testify. To the extent that the district court placed the burden on Owens-Corning to establish the unavailability of Dr. Burgher, the district court made an error of law in shifting the burden of proof. Kirk then articulated what we term a "convenience" argument, that is, she argued that Dr. Burgher was Owens- Corning's expert and Owens-Corning was in a better position to locate Dr. Burgher because it had Dr. Burgher's telephone number. To the extent that Kirk is advocating that Owens-Corning should undertake the task of locating a witness for Kirk so that she may use that testimony against Owens-Corning, we reject any such notion. For the same reasons we protect an attorney's work product from discovery, see Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 394 (1947) ("Inefficiency, unfairness, and sharp practices would inevitably develop . . . . The effect on the legal system would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."), we do not believe that Owens-Corning had any any duty to assist Kirk in preparing her case. [fn11] . Again, although we need not reach this issue absent a finding of unavailability, because of the likelihood that an offer may be made during the retrial to admit this evidence as former testimony, we believe further discussion is warranted. [fn12] . For instance, the statement elicited from Dr. Burgher during cross-examination at the state trial may not have warranted redirect by Owens-Corning in light of its theory of defense. See McCormick ß 302, at 307 ("Circumstances may differ sufficiently between the prior hearing and the present trial to bar admission . . . as where questions on a particular subject would have been largely irrelevant at the earlier proceeding."). Because we do not have the pleadings, we cannot determine whether an opportunity and similar motive existed. [fn13] . Rule 803 of the Federal Rules of Evidence states in relevant part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .
Other exceptions. A statement not specifically covered by any of the foregoing exceptions but 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. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Fed. R. Evid. 803(24) (emphasis added). [fn14] . There is nothing in the record to indicate that the district court made any findings as to the reliability of the Garlock interrogatories. See United States v. Chu Kong Yin, 935 F.2d 990, 1000 (9th Cir. 1991) (requiring specific findings regarding the requisite elements of Rule 803(24)); United States v. Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (district court must find that the statements met the requirements of the rule in order for the appellate court to consider the admissibility of the statement under 803(24)).
Mesothelioma Info
Mesothelioma is a rare type of cancer affecting more than 2,000 Americans each year. The disease is responsible for an estimated 200,000 deaths worldwide. The only known cause of mesothelioma is asbestos exposure. Asbestos is a carcinogenic mineral that can lead to a variety of lung diseases when inhaled, including asbestos lung cancer, asbestosis, diffuse pleural thickening and fibrosis.
If you or a loved one has been diagnosed with malignant mesothelioma, contact a mesothelioma attorney or asbestos lawyer to get information about your right to compensation.
Ongoing cancer trials revolve heavily around the development and implementation of new chemotherapy drugs like Alimta, Onconase and Veglin.