Donald Burkhart was employed as a maintenance worker for H.J. Heinz Company from 1946 to 1986. While employed at Heinz, Burkhart was frequently exposed to asbestos, including times where he was instructed to collect fallen asbestos, beat it into small pieces, mix it into a paste, and reapply it to pipes. Mr. Burkhart was subsequently diagnosed with mesothelioma and died in 2007.

Prior to his death, he gave deposition testimony in a product liability action filed against several asbestos manufacturers whom he believed were responsible for his diagnosis. Following his passing, his wife filed a claim against H.J. Heinz Company seeking workers’ compensation death benefits (Heinz was not named in the suit against the asbestos manufacturers). In bringing this suit, the widow of Mr. Burkhart attempted to use this prior deposition to show that Heinz injuriously exposed him to asbestos. The Industrial Commission denied her claim, and the case eventually made its way to the Ohio Supreme Court.

Mrs. Burkhart attempted to introduce the deposition under Rule 404(B)(1) of the Ohio Rules of Evidence, which permits former testimony of an unavailable declarant, provided the party against whom the testimony is offered is a predecessor-in-interest and had an opportunity to examine the declarant in the prior preceding, and that the two entities would have had similar motive to develop the testimony by direct, cross, or redirect examination.

Mrs. Burkhart contended that the manufacturers of the asbestos litigation could be considered predecessors-in-interest to Heinz because the workplace exposure would concern both entities. She also argued that Heinz could not object to the use of the deposition testimony because they were also using it to disprove Burkhart’s exposure claim.

The Supreme Court held that the deposition was inadmissible, as “neither H.J. Heinz nor any predecessor-in-interest to H.J. Heinz had an opportunity to cross-examine Burkhart in the prior products-liability litigation, nor was there a similar motive to develop his testimony during his depositions.” The Court held that a similar interest in the material facts and outcome of an asbestos case is not enough to create a predecessor-in-interest relationship. This represents yet another important decision in the ever-growing list of asbestos related litigation.