California Supreme Court Denies Use of Prior Deposition Testimony in a Mass Tort Matter

California Supreme Court Denies Use of Prior Deposition Testimony in a Mass Tort Matter

On March 07, 2022, the California Supreme Court vide its ruling made it difficult for a plaintiff litigating in California to make use of the defendant’s prior depositions for their case in chief. (Berroteran v. Superior Court, No. S259522, 2022 Cal. LEXIS 1154 (Mar. 7, 2022))

The Petitioner was a putative member of a federal multidistrict consolidated class-action suit against the defendant, Ford Motor Company, arising from the diesel engine used in some vehicles sold by Ford in the early and mid-2000s. The federal matter was settled; however, the petitioner opted out and pursued his individual suit. In the federal class action, nine out-of-state employees or former employees of Ford gave videotaped testimony. In his individual suit, the Petitioner filed ten designations of deposition testimony listing depositions of those nine unavailable out-of-state witnesses and identifying the testimony that he proposed to introduce and present at trial. However, shortly before the Petitioner’s trial was set to begin, Ford moved a motion to exclude all deposition testimonies listed by the Petitioner. Ford referred to the interpretation of Section 1291 (a)(2) laid down in Wahlgren   v.   Coleco   Industries,   Inc.(1984) 151 Cal.App.3d   543 (Wahlgren).

California Evidence Code Section 1291(a)(2) reads, “the party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”

The Court agreed that the statute’s hearsay exception applied when the party against whom the testimony is offered “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which” the objecting party would have in the present trial. In the Walgreen case, the Fourth Appellate District interpreted this provision and excluded prior testimony stating the reason that a party at a deposition does have the same interest and motive to cross-examine at trial. But, in its 2019 decision in Berroteran v. Superior Court, 41 Cal.App.5th 518, 534 (2019), the Second Appellate District disagreed with the Wahlgren decision to the extent that it laid down a blanket rule. The same was overturned by the California Supreme Court as it noted that pertaining to strategic reasons, counsels are discouraged from cross-examining their own witness at a discovery deposition. For this reason, a party at a deposition generally does not have the same interest and motive to cross-examine. The California Supreme Court held that the burden falls upon the proponent to establish that this prohibition would not be applicable. It further said that if the parties had a mutual intent that the deposition would serve as a trial testimony, it would create a rebuttable presumption that the interest/intent was similar. However, in lesser clear circumstances, the Court listed out certain “practical considerations” for establishing if the opposing party’s interest/motive to cross-examine at the deposition was similar. These considerations included timing, relationship to the deponent, availability of the deponent, conduct at the deposition, the testimony in question, and similarity of the party’s substantive positions. The Court ordered that the considerations should be applied to each deposition from which the Petitioner seeks to introduce testimony.

The California Supreme Court’s decision in the present case discussed and affirmed the legislative intent of California Evidence Code Section 1291(a)(2). However, it is pertinent to note that the ruling does not lay down a categorical ban against the use of deposition testimony at trial, especially when the parties have agreed to the contrary. The counsel for the opposing party would have to rely on the given considerations in order to prevent present and past deposition transcripts from being used in a plaintiff’s trial case in the state of California.

Research and Writing By: Team Draft n Craft

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