## Facts

- Joseph C. Trascher, diagnosed with asbestosis, sought an ex parte order in March 2007 to perpetuate his testimony, supported by a physician affidavit stating he might not survive six months.
- Trascher alleged occupational asbestos exposure while working at Avondale Shipyard (1960–1964) and Equitable Shipyard (1965–1974) and identified entities expected to be defendants.
- A videotaped perpetuation deposition occurred at Trascher’s home on April 3, 2007, with direct examination by his counsel.
- The deposition was stopped due to Trascher’s failing health and fatigue, with the expectation it would resume for defense cross-examination.
- Trascher died eight days later, before any cross-examination occurred.
- Trascher’s wife and daughters later pursued survival and wrongful-death claims and sought to use the video deposition at trial.
- Defendants moved to strike the deposition as inadmissible due to lack of cross-examination and hearsay concerns; the trial court denied the motion and allowed use at trial.
- The Louisiana Supreme Court granted supervisory review to determine the deposition’s admissibility.

## Issues

1. Whether a perpetuation video deposition halted for the deponent’s failing health and never subjected to any opposing cross-examination is admissible at trial.
2. Whether any portion of the deposition is admissible under a hearsay exception, including La. Code Evid. art. 803(3) (then-existing mental, emotional, or physical condition).

## Decision

- The Louisiana Supreme Court affirmed in part, reversed in part, and remanded.
- The Court held that most of the perpetuation deposition was inadmissible because defendants had no opportunity to cross-examine the deponent and the testimony did not fit applicable hearsay exceptions.
- The Court held that limited portions describing Trascher’s then-existing physical and mental condition were admissible under La. Code Evid. art. 803(3).
- The trial court could admit only those portions meeting art. 803(3), and must exclude the remainder.

## Legal Principles

- Cross-examination is a fundamental safeguard for testing testimonial reliability; a perpetuation deposition never subjected to any cross-examination cannot be admitted wholesale as trial evidence.
- When offered for its truth without satisfying deposition-use requirements, an uncross-examined deposition constitutes hearsay.
- La. Code Evid. art. 803(3) permits admission of statements describing the declarant’s then-existing physical condition (e.g., pain, symptoms, limitations) regardless of availability.
- Historical narratives about past workplace conditions and alleged exposures generally fall outside art. 803(3) and, absent cross-examination, lack the guarantees of trustworthiness required for admission under residual or similar hearsay theories.

## Conclusion

A perpetuation video deposition cut short and never subjected to opposing cross-examination is largely inadmissible hearsay, but discrete statements describing the declarant’s then-existing physical or mental condition may be admitted under La. Code Evid. art. 803(3).


Trascher v. Territo, 89 So. 3d 357 (La. 2012)