Admissibility of Prior Testimony

Many thanks to Rebecca Mercier-Vargas of the firm of Kreusler-Walsh, Compiani & Vargas, P.A., for alerting me to the recent case of Rich v. Kaiser Gypsum Co., 37 Fla. L. Weekly D2503a (Fla. 4th DCA 2012). That was a case of first impression interpreting the term “predecessor in interest” in § 90.804 of the Evidence Code. That provision of the Evidence Code states as follows:

(2) Hearsay exceptions—The following are not excluded

under s. 90.802 provided that the declarant is unavailable

as a witness:

(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 a 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 re-direct examination. (Emphasis supplied)


Rich was a product liability case against the alleged manufacturers of products which purportedly contained asbestos used by plaintiff’s decedent who eventually contracted mesothelioma. The allegations were that he inhaled dust caused by sanding from using two different kinds of joint compound to fix cracks and eventually replace sheetrock.

The defendants sought to introduce depositions taken of witnesses who had testified in two prior cases before plaintiff in the case at bar ever brought the action or was given any opportunity to cross examine the witnesses. The issue was whether the plaintiffs in the prior lawsuit could be considered predecessors in interest who had a similar motive to cross examine these witnesses.

While no Florida cases exist on this issue, the Court considered a number of Federal decisions as well as a comparison of former Florida Statute 92.22 which preceded the passage of 90.804. The major distinction between these two statutes is that in the former statute privity was required while in the later privity was replaced by a predecessor in interest.

The Court relied on Federal Rule 804(b)(1) which has almost identical language to the Florida Statute being interpreted.

At Page 2506 the Court noted:

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 had 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



In Clay v. Johns-Manville Sales Corp., 722 F. 2d 1289 (6th Cir. 1983) the Court held a “previous party having a like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party.” Clay, 722 F. 2d at 1294-95. The Rich Court cited numerous Federal cases which declined to require privity in determining whether the prior party eliciting the testimony was a predecessor in interest.

At Page 2507, the Court holds:

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.”


Interestingly, the Court quotes from the House Committee on the Judiciary which passed the predecessor in interest language that “the Committee considered that it is generally unfair to impose upon the party whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party.” The Court, nevertheless, adopted the reasoning of the Third Circuit in Lloyd v. American Export Lines, Inc., 580 F. 2d 1179, 1185 (3d Cir. 1978) to the effect:

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)).


What is particularly striking is the Fourth District’s liberality in applying the above law to the facts of this particular case. In reviewing the underlying facts in which the two depositions were taken, the Court noted that in the first the very same product was involved as was in question in the case at bar. Those cases shared the same defendant, the same ingredient, the same product and the same injuries and issues so there was no difficult jump to conclude that the parties in the prior case had a similar interest in cross examining the witness as did the plaintiffs in the instant case.

However, in the second case, the Court noted the allegations involved two completely different products and that “an entirely different product in a products liability case is the type of distinction that would ‘preclude similar motives of witness examination.’” The Court further noted in a footnote that the testimony in that deposition was, indeed, prejudicial. Nevertheless, the ultimate conclusion of the Court was that any error in admitting the deposition was harmless even though the testimony essentially established that the product was not distributed in the area in which plaintiff’s decedent could have purchased it thus completely obviating liability.

This case has startling ramifications for the trial of future lawsuits. If the reasoning of this Court stands the test of time and possible further review, parties will be bound by testimony taken in prior cases in which they had no opportunity to cross examine and no possibility of having knowledge of the existence of that testimony at the time litigation was commenced. One can envision great difficulty in preparing witnesses, developing strategy, obtaining experts and the filing of unnecessary lawsuits when this testimony is not revealed until late in the process. In addition, the House Committee’s concern will be echoed by many that they will be bound by the ability of unknown lawyers to appropriately cross examine witnesses in cases in which those parties have no control. In addition, this opinion reposes with the trial court extraordinary discretion to shape the testimony in cases long after discovery is concluded and opportunities to alter the result lost.

Originally published in January 2013

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