[co-author: Madeline Quoss]

In July, a Delaware Superior Court judge ordered affidavits of a deceased plaintiff admitted under the residual exception to hearsay, finding that the affidavits were sufficiently trustworthy for purposes of admissibility under D.R.E. 807.

In Ogg, decedent Charles Ogg died two days prior to his pre-suit deposition. However, three months before his death, the decedent provided sworn statements regarding his work history and potential exposure to asbestos and asbestos-containing products. Eleven days before his death, the decedent also executed a second affidavit.

Plaintiff Barbara Ogg filed a complaint on behalf of her late husband, the decedent, against numerous defendants. These defendants filed motions for summary judgment of all claims. At oral argument the plaintiff argued admission of the prior affidavits of decedent as evidence in the case. The defendants, however, claimed that the affidavits were hearsay and not admissible. Therefore, the parties sought a determination from the court concerning the admissibility of the affidavits.

Two exceptions to the rule against hearsay were implicated in Ogg: 1. the dying declaration exception under D.R.E. 804(b)(2), and 2. the residual exception to hearsay under D.R.E. 807.

1. The dying declaration exception.

The court found that the affidavits were not executed “under a sense of impending death” as required. Although an affidavit was signed 11 days prior to the decedent’s death, the court noted that the record reflected the decedent and his counsel had intended for decedent to provide additional statements at his deposition. The “lapse in time between [decedent’s] death and the execution of the affidavit ‘precludes a finding of imminence needed to satisfy the dying declaration exception.’” The court held that neither affidavit was admissible as a dying declaration.

2. The residual exception to hearsay.

A statement inadmissible under other exceptions to the hearsay rule can be admissible under the residual exception to hearsay when: “(1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) the general purposes of the rules and the interests of justice will best be served by admission into evidence.” Id. (quoting Holloman v. Metzger, No. 17-79, slip op. at 10 (D. Del. Mar. 23, 2020)).

The court held that the affidavits in Ogg were admissible, as they satisfied the residual exception to hearsay. First, the court found the affidavits were offered as material facts, critical to the issue of product identification and causation. Second, the affidavits were more probative on the point for which it was offered. The decedent had recounted his work history and exposure to products in great detail. The affidavits also had a guaranty of trustworthiness as there was no record of contrary statements made by the decedent. Third, the admissibility of the affidavits was in the interests of justice. The question before the court was to the admissibility, not the credibility, of the affidavits.

The court also noted that the defendants would have the opportunity to undermine the decedent’s statements through corporate representatives and cross-examination of co-workers and family, and could later argue the weight that the jury should afford the affidavits and why.

This case illuminates that affidavits of deceased plaintiffs may be admissible under the residual exception to hearsay, even if the affidavits are not dying declarations and cannot be examined for trustworthiness. Considered with the Supreme Court’s broadening of the scope of the residual exception to hearsay, toxic tort litigators should note the shifting parameters of hearsay, and be aware that courts may admit evidence previously considered hearsay into the courtroom.