Product Liability Litigation Update

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Considerations for Admitting 30(b)(6) Testimony in Mass Tort and Product Liability Cases

In many mass tort and product liability cases involving alleged injuries with a long latency period, corporate defendants must often defend decisions and actions occurring many years in the past.  Companies often no longer employ the people who made the key decisions at issue.  To avoid wasting time deposing the wrong person, plaintiffs typically obtain testimony from a corporate designee under Rule 30(b)(6) or its state law counterparts, which often refer to this type of witness as a “person most knowledgeable” (“PMK”).  Such a witness is responsible for giving knowledgeable and binding answers on behalf of the corporation, which includes matters not only within the Rule 30(b)(6) or PMK witness’s personal knowledge, but also to matters known or reasonably available to the organization.  Mass tort plaintiffs are now calling these witnesses to testify during the plaintiffs’ case-in-chief.  This offers advantages to the plaintiffs and challenges to the corporate defendant. 

On the plaintiffs’ side, they can get certain necessary testimony into evidence through a corporate representative as an admission by the company, and thus as an exception to the hearsay rule.  Plaintiffs also can potentially get damaging documents into evidence through the corporate representative, even when the corporate representative was not involved in the events contained within the document.  Calling such a witness can provide a “one stop shop” approach to present a unified narrative to a jury, rather than having to present the story through a series of piecemeal company witnesses.  And significantly, plaintiffs can seek to use the rules of evidence to undermine a defendant’s attempt to rehabilitate such witnesses or offer rebuttal testimony through them. 

That is because, at trial, a witness is generally limited to testifying about information within that witness’ personal knowledge and not as to facts based on hearsay. Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App’x 899, 907-08 (5th Cir. 2010).  Primarily relying on Rule 32(a)(3)’s authorization for an adverse party to use a 30(b)(6) or PMK witness’s deposition testimony at trial, courts generally authorize an opposing party to cross-examine 30(b)(6) or PMK witness about historical facts concerning the business, even if those facts are outside of the witness’s personal knowledge.  Brazos River, 469 F.3d at 434 (“[I]f the corporation makes the [PMK] available at trial he should not be able to refuse to testify to matters as to which he testified at the deposition on grounds that he had only corporate knowledge of the issues, not personal knowledge.”).

Many courts do not allow the business entity to offer its own corporate representative’s testimony for historical facts if it is based on hearsay. See, e.g., Union Carbide, 404 F. App’x at 907-08; Sovereign Military Hospitaller v. Fla. Priory, 702 F.3d 1279, 1295 (11th Cir. 2012); but cf. Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 342 (5th Cir. 2010) (permitting a partnership’s Rule 30(b)(6) or PMK witness to testify to matters within the “partnership’s knowledge,” rather than the Rule 30(b)(6) or PMK witness’s personal knowledge).  It is common for a Rule 30(b)(6) witness’s testimony of historical facts and company admissions to be admissible when it is being used against a business entity at trial, but it is excluded when offered to support the company, where such evidence is based on hearsay. 

Corporate defendants are not without strategic options to combat this challenging dynamic at trial.  First, in federal court and states with procedures modeled after the federal rules, if any portion of the 30(b)(6) or PMK witness’s deposition testimony is introduced into evidence, then the company may also offer any other part of the deposition. Fed. R. Civ. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.”); see also Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 n.4 (10th Cir. 2009). However, this rule allows for only deposition testimony to be played at trial—not a live redirect examination, so its utility is limited where plaintiffs call the corporate representative as a live witness.

Second, a 30(b)(6) or PMK witness can develop personal knowledge of historical facts by relying on exceptions to the hearsay rule, such as records prepared in the ordinary course of business or perceptions based on industry experience. See Burlington N. R.R. Co. v. Neb., 802 F.2d 994, 1004-05 (8th Cir. 1986).  Thus, if a corporate representative’s testimony can be founded upon exceptions to the hearsay rule, there is a higher likelihood that the testimony will be admitted.

Third, courts may permit “witnesses to give lay opinion testimony about a business’s policies, practices, or procedures, based on an after-the-fact review or analysis of documents or facts, if the witness’s testimony derived from personal knowledge gained through participation in the business’s day-to-day affairs.” United States v. Kerley, 784 F.3d 327, 337 (6th Cir. 2015); see also United States v. Valencia, 600 F.3d 389, 416 (5th Cir. 2010).  It can be effective to convey the company’s position on key issues, even where it is limited by the lack of a percipient fact witness to certain historical facts. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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