Howard Berry sued 40-plus companies for his damages from contracting mesothelioma as a result of exposure to asbestos. He died before his discovery deposition was completed and before his evidence deposition was taken. Howard’s wife, Linnie, continued the lawsuit as representative of Howard’s estate.
The companies moved to bar the use of Howard’s discovery deposition at trial. The trial court granted the motion because, with few exceptions, Illinois law does not allow the discovery deposition of a party, even though unavailable, to be read into evidence. The companies then moved for summary judgment on the basis that Howard’s estate could not prove its case without Howard’s testimony. The trial court agreed and entered summary judgment against the estate.
Linnie appealed. The estate argued, among other things, that Howard’s discovery deposition was a “dying declaration,” and could come into evidence as an exception to the hearsay rule. The Fifth District Illinois Appellate Court disagreed. The appellate court stated the standard of review for “determination of whether a particular statement constitutes a dying declaration … [is whether the court’s] findings are palpably contrary to the manifest weight of the evidence.” The discovery deposition was not a dying declaration because the estate did not show that Howard thought his death was imminent at the time he gave the deposition.
