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Deceased Asbestos Victim Denied His Day in Court
By asbestoshub | July 7, 2008
Here is a disheartening story about the late Howard L. Berry and his widow, Linnie Kathryn Berry, of Illinois.
It’s an asbestos case against defendants American Standard, Inc., American Water Works Service Company, Inc., Arkla Industries, Inc., Garlock Sealing Technologies, LLC, G.W. Berkheimer Company, Inc., Industrial Contractors, Inc., John Crane, Inc., Lennox Industries, Inc., Marathon Oil Company, Sealing Equipment Products Company, Union Carbide Corporation, and The Whirlpool Corporation, Defendants-Appellees.
Here is a timeline of how events unfolded:
- Sep. 23, 2003: Mr. Berry diagnosed with mesothelioma and given 8-18 months to live.
- Jan. 2, 2004: Lawsuit filed against 47 defendants, seeking damages resulting from Mr. Berry’s exposure to asbestos on various job sites.
- Jan. 21, 2004: Plaintiffs’ counsel served notice to defendants of Mr. Berry’s evidence deposition to be taken on Feb. 25, 2004. Defendants objected and requested that a discovery deposition take place first. Explanation of difference below.
- May 21, 2004: Plaintiffs filed a motion for a protective order and/or an order limiting the time allotted for the continuation of Mr. Berry’s discovery deposition. The deposition must have been delayed for some reason? It was supposed to happen in February.
- May 28, 2004: Hearing on Motion for Protective Order. Denied. Previous order allowing additional time for the discovery deposition stood.
- Jun. 9, 2004: Mr. Berry appeared for discovery deposition on June 9, 2004 and June 10, 2004. His evidence deposition had been scheduled for July 6, 2004.
- Jul. 16, 2004: Motions were heard and the circuit court allowed additional time for the discovery deposition.
- Jul. 28, 2004: The discovery deposition resumed and was completed.
- Aug. 23, 2004: Mr. Berry was hospitalized and he died on Aug. 23, 2004. His evidence deposition was never taken.
- Oct. 6, 2004: Mrs. Berry was substituted as the personal representative of the estate of Mr. Berry.
- May 18, 2005: Hearing on motion defendants filed to bar the use of the discovery deposition. Mrs. Berry moved to use the discovery deposition as evidence at the trial, and she responded to the defendants’ motions to bar its use. The court found that Supreme Court Rule 212(a)(5) bars the use of a party’s discovery deposition as evidence at a trial and that a deceased plaintiff/deponent remains a party through his estate for purposes of this rule.
- Jun. 1, 2005: Court ruled that Mr. Berry’s deposition had been taken for the purpose of discovery and that if a deponent or the estate of a deceased deponent is a party to the proceeding, the discovery deposition of that deponent cannot be used as an evidence deposition. Mrs. Berry appealed.
- May 21, 2008: The Appellate Court of Illinois, 5th District, upheld the ruling of the Circuit Court of Crawford County, which granted summary judgment in defendants’ favor.
So in this case, the court barred Mrs. Berry from using her dead husband’s discovery deposition as an evidence deposition at the trial. Why, when Mr. Berry was given 8 to 18 months to live in September 2003, did it take so long for the defendants to agree on an evidence deposition date? Or perhaps, why didn’t Plaintiff’s counsel insist on having the evidence deposition sooner? Either way, rules are rules but this situation seems like a cruel twist of fate for the Berrys when the man died from a disease that was actually defendants’ fault.
Evidence and Discovery Depositions
The State of Illinois distinguishes evidence depositions as being similar to testifying in court and discovery depositions as allowing more liberal and broad questioning. Evidence depositions can be used at trial and discovery depositions cannot. In this case, the evidence deposition was to be Mr. Berry’s testimony since it was expected that he would die before trial and not be able to testify.
An article from Chicago Lawyer entitled “Why Double the Deposition Work,” had this to say about the unique Illinois law:
Illinois’ procedure is out of the mainstream and requires a discovery deposition to be used at trial only for impeachment purposes. What this means is that a discovery deposition is taken; and then if it is determined later that the witness is necessary at trial, an evidence deposition is taken because that is the only way that the testimony can be preserved at trial.
Time and again, Illinois courts have held that one of the main purposes of the Illinois rules is to facilitate the prompt disposition of litigation. Discovery should be expeditious with an eye toward open communication in the preparation and evaluation of cases. How is that possible, though, given the current practice of taking two often identical depositions of the same witness?
