This motion arising out of pending asbestos litigation raises the issue of whether three unsigned depositions and one sworn statement given in other jurisdictions in connection with litigation pending there is admissible under Evid.R. 63(3) and 63(32). In each instance the testimony was given under oath and recorded by an official shorthand reporter. The witnesses, Dr. Kenneth Smith and Mr. Wilbur Ruff, are unavailable witnesses by reason of their death. Evid.R. 62(6).
Dr. Smith (hereinafter referred to as Smith) was employed by defendant Johns-Manville Corp. from the 1940s until his termination in 1966, during a part of which time he served as the corporate medical director. Mr. Ruff worked for Johns-Manville from 1929 to 1974, becoming Director of Community and Employee Relations at the Manville, New Jersey, plant. Smith was deposed on January 13, 1976 in Pittsburgh, Pennsylvania, in DeRocco v. Forty-Eight Insulation, Inc., then pending in the Court of Common Pleas of Allegheny County, Pennsylvania. Ruff's deposition was taken on April 9, 1976, in St. Petersburg, Florida, in In re General Dynamics Asbestos Cases, then pending
in the United States District Court for the District of Connecticut, and on February 6, 1981, in Tampa, Florida, in Krebs v. Johns-Manville, then pending in the United States District Court for the District of Pennsylvania. Ruff's sworn statement was taken on January 11, 1978, in connection with a California medical malpractice case, Browner v. Johns-Manville.
In the instant cases plaintiffs in ten separate cases contend that prior to 1964 defendant Johns-Manville knew asbestos was hazardous to health. Plaintiffs claim that the testimony in question contains highly probative material which supports their position. Relying on Evid.R. 63(3) and 63(32), they contend that the testimony was taken in compliance with New Jersey, Pennsylvania and federal law, as well as for use as testimony at the trial of the actions in which they were obtained. They further urge that Ruff's statement was made in good faith, upon the personal knowledge of the declarant, and under trustworthy circumstances.
Defendant Johns-Manville challenges these claims by asserting that the depositions in DeRocco and General Dynamics were not taken "in compliance with law" since the deponents did not sign the transcripts, as required by the rules of those jurisdictions. Johns-Manville also argues that the depositions were taken for discovery purposes only, and thus the motive to cross-examine thoroughly was not present. Johns-Manville concedes that Ruff's testimony in Krebs was taken in compliance with federal law because there was a waiver of the signing requirement. Fed.R. 30(e). It argues against the admission of that deposition on the grounds that it was taken for discovery purposes, rather than for the use as testimony at trial.
Originally four depositions were in question. However, Smith's deposition in Louisville Trust Co. v. Johns-Manville Products Corp. was conceded, at the time of oral argument, to have been taken in compliance with law for use as testimony at the trial of that action.
The fundamental principle expressed by the evidence rules in question is that hearsay, while not equal in quality to the testimony of a declarant on the witness stand, may be admitted nevertheless if the declarant is unavailable and his statement meets specified standards of reliability and trustworthiness. Where these conditions are met the rules express a preference for admissibility rather than the loss of otherwise probative evidence.
Evid.R. 63(3)(a) provides in pertinent part as follows:
Subject to R. 63 and to the same limitations and objections as though the declarant were testifying in person, and where the declarant is unavailable as a witness, testimony is admissible if (a) it was given by the declarant as a witness in a prior trial of the action or in another action or in a deposition taken in compliance with law for use as testimony in the trial of another action . . . .
Plaintiffs must establish that the former testimony was taken "in compliance with law." The rule fails to enunciate specifically with which law the taking of the deposition must comply, the law of the forum state or the law of the jurisdiction where the depositions were taken.
Plaintiffs rely on R. 4:14-5 as authority for their claim that the depositions need not be signed by the deponent to be in compliance with law. That rule, in part provides: "If the officer at the taking of the deposition is a certified shorthand reporter, the witness shall not sign the deposition. . . ." In 1969 New Jersey eliminated the reading and signing requirements since the procedure was considered "time consuming and served no essential purpose." Pressler, Current N.J. Court Rules, Comment R. 4:14-5 (1982).
In support of this motion plaintiffs have submitted the affidavits of attorneys and certified court reporters who were directly involved in taking the testimony in the original cases. R. 1:6-6 governs the use of such affidavits. It provides that the affidavits must be made on "personal knowledge setting forth facts which are admissible in evidence to which the affiant is competent to testify." The affidavits may not be based merely upon "information and belief" or other objectionable hearsay or
they shall be disregarded. Patrolman's Benevolent Ass'n v. Montclair, 70 N.J. 130, 134 (1976); Smithey v. Johnson Motor Lines, 140 N.J. Super. 202, 207 (App.Div.1976). Having reviewed the affidavits, the court is satisfied that they comply with the requirements of R. 1:6-6. The affidavits of the reporter in DeRocco and General Dynamics attest to the following facts concerning the circumstances surrounding the taking of the depositions: the reporters were duly authorized to administer oaths, the deponents were sworn; ...