O'banion v. Owens-Corning Fiberglas Corp.

968 F.2d 1011 (10th Cir. 1992)

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Nature of the Case

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Facts

P worked from 1962 through 1980 as a plumber and pipefitter. It is alleged that P suffers from asbestos-related disease as a result of exposure to D's' asbestos-containing products. Ps sued D. At trial D offered the testimony of Dr. Hans Weill who testified on the issue of the state of the art in another case which was admitted at a former trial. There was no showing that the Dr. was unavailable for this trial. The court concluded that testimony given at other trials could be offered against the parties in the present trial if during the previous trial, the opposing party was represented by counsel of similar capabilities. It turns out that in the prior case and this one there was a commonality of counsel and Ps’ counsel had more than enough opportunity to cross-examine the Dr. in the prior case about exactly the same issue in the present case. The court admitted the testimony under 804(b). D got the verdict and Ps contend the district court abused its discretion in admitting the former trial testimony. Ps appealed.