California Appellate Court Allows Admission of Videotaped Depositions of Manufacturers’ Current and Former Employees in Other Litigation
In Berroteran v. Superior Court (October 2019) 41 Cal.App.5th 518, the California Court of Appeal, Second District, departed from prior precedent in holding that the deposition testimony in other litigation of nine (9) unavailable witnesses who were current and former employees of Ford Motor Co. was not subject to the hearsay objection and was admissible to prove a product defect in the instant case.
The plaintiff filed a lawsuit claiming a defect in Ford’s Model 6.0 - liter diesel engine in a new model F-250 truck. There was prior litigation in which nine (9) Ford employees and former employees were deposed concerning allegations that the 6.0 - liter diesel engine was defective. Ford filed a motion in limine to exclude introduction of the videotaped testimony of those current and former employees asserting hearsay objections. Plaintiff opposed that motion based on California Evidence Code section 1291(a)(2) which states that evidence of former testimony is not inadmissible if 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 deponent with an interest and motive similar to that which he has at the current hearing. Ford argued that it did not have a similar interest and motive to examine its own employees at those depositions. Indeed, it was not established that Ford’s counsel undertook any re-direct examination at the depositions.
The trial court granted Ford’s motion in limine based on the 1984 decision in Wahlgren v. Colco Industries Inc., 151 Cal.App.3d 543. The California Appellate Court in Wahlgren assumed that deposition testimony is limited to discovery, noting respected authorities agree that examination of one’s own client is to be avoided at a deposition.
The Second Appellate District in Berroteran felt that Ford did have a similar motive to examine each of the nine (9) deponents since the same issues were raised in all litigation, i.e., whether the 6.0 - liter diesel engine was defective. The court felt Ford had a motive to disprove the allegations of misconduct and knowledge all of which centered around the 6.0 - liter diesel engine. The appellate court issued an order directing the trial court to vacate the granting of the motion in limine and to issue a new order denying the motion in limine thereby permitting the use of the videotaped depositions. Of significance, Footnote 10 of the opinion states that Ford did not proffer any evidence of a strategic reason for not cross-examining its own witnesses at the depositions. Absent such a record, the Second Appellate District did not address the partial legislative history referenced in the Wahlgren case that a party does not question its own witnesses at deposition for strategic reasons.
The ruling in Berroteran will now be used to assert admissibility of depositions of employees of a manufacturer or distributor taken in other litigation as long as the manufacturer or distributor had the right and opportunity to cross-examine the deponent with an interest and motive similar to that which it has in the current trial.
Berroteran involved the testimony of unavailable witnesses. It is assumed Ford made a tactical decision not to make those current and former employees available for trial. It still makes tactical sense not to examine one's own witness at deposition. However, if the witness has prejudicial testimony, the witness should be rehabilitated at the deposition.
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