## Facts

- Present and former employees (and representatives) brought consolidated federal actions seeking damages for asbestosis and related conditions allegedly caused by workplace exposure to asbestos used by Johns-Manville entities.
- The defendants were Johns-Manville Corp., Johns-Manville Sales Corp., and Canadian Johns-Manville Co., Ltd. (collectively, the J‑M defendants).
- Plaintiffs moved to use deposition testimony from Dr. Kenneth Smith, who had served as a Johns-Manville medical director and later died, making him unavailable to testify at trial.
- Dr. Smith had previously been deposed in two other asbestos cases brought by end-users of asbestos products.
- None of the J‑M defendants had been a party in those earlier end-user suits, but Johns-Manville Products Corp. (J‑M Products) had been a defendant.
- Johns-Manville Corp. was the parent of wholly owned subsidiaries including the J‑M defendants and J‑M Products.
- In his earlier depositions, Dr. Smith described his work for Johns-Manville and indicated he acted as a consultant for the Johns-Manville corporation as a whole.
- The J‑M defendants filed a cross-motion to exclude the deposition testimony, arguing (among other points) that the depositions were not usable because they were unsigned, that J‑M Products was not a “predecessor in interest” to them, and that the testimony from end-user litigation did not fit employee injury claims.

## Issues

1. Whether Dr. Smith’s prior depositions qualified as former testimony under Federal Rule of Evidence 804(b)(1) even though the deposition transcripts were not signed by the witness.
2. Whether the “predecessor in interest” requirement of Rule 804(b)(1) was met where a different Johns-Manville subsidiary (J‑M Products) was the defendant in the earlier litigation, rather than the J‑M defendants in the employee cases.
3. Whether the subject matter of Dr. Smith’s earlier deposition testimony was sufficiently related to issues in the consolidated employee asbestosis cases to be used in those cases.

## Decision

- The court granted plaintiffs’ motion to permit use of Dr. Smith’s former deposition testimony and denied the J‑M defendants’ cross-motion to exclude it.
- The court concluded the depositions were taken in compliance with applicable deposition procedures despite the absence of Dr. Smith’s signature, so the lack of signature did not bar their use as former testimony.
- The court determined the predecessor-in-interest requirement was satisfied because the earlier defendant (J‑M Products) and the current J‑M defendants were closely related corporate entities within the same parent-subsidiary structure and shared aligned interests on the topics examined, giving the earlier party a similar motive and opportunity to examine Dr. Smith.
- The court found the testimony covered matters that bore on disputed questions in the employee cases—such as corporate knowledge and responses regarding asbestos health risks—so it was usable in the consolidated litigation.

## Legal Principles

- Under FRE 804(b)(1), former testimony is admissible when the declarant is unavailable and the party against whom the testimony is offered (or that party’s predecessor in interest) previously had an opportunity and similar motive to develop the testimony by examination.
- “Predecessor in interest” is not limited to the same named party; it can be satisfied when the earlier litigant’s relationship to the later party and the issues in dispute show a shared stake in developing (or challenging) the testimony on the same subjects.
- A deposition’s lack of a witness signature does not automatically make it unusable as former testimony when the deposition was otherwise properly taken (e.g., under oath with counsel present) and the signature defect does not defeat the reliability of what was recorded.
- Former testimony from separate litigation may be used when it addresses overlapping subject areas that matter to the later dispute, such as company knowledge, practices, and communications about the hazards alleged.

## Conclusion

In the Matter of Johns-Manville/Asbestosis Cases held that plaintiffs in consolidated employee asbestos-injury suits could introduce the prior deposition testimony of deceased Johns-Manville medical director Dr. Kenneth Smith under FRE 804(b)(1), rejecting objections based on missing deposition signatures and the fact that a different but closely related Johns-Manville subsidiary had been the defendant in the earlier end-user cases, where that prior party had a similar motive and opportunity to examine the witness on topics shared by both sets of litigation.


In the Matter of Johns-Manville/Asbestosis Cases, 93 F.R.D. 853 (1981)