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Mills v. Owens-Illinois3/28/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
AFFIRMED
In appellant Lucie Mills's action against appellee Owens-Illinois, Inc., for the wrongful death of her husband Arthur, the trial court struck Arthur's videotaped statement and then granted Owens-Illinois summary judgment. Mills argues the court erred by striking Arthur's statement as hearsay. Because we conclude the trial court did not abuse its discretion in striking the statement, and Mills consequently failed to submit sufficient evidence to avoid summary judgment, we affirm.
We review de novo the propriety of granting summary judgment, Phipps v. CW Leasing , Inc., 186 Ariz. 397, 400, 923 P.2d 863, 866 (App. 1996), and "view the facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Southwest Auto Painting & Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 445 n.1, 904 P.2d 1268, 1269 n.1 (App. 1995).
In August of 1998, Arthur was diagnosed with malignant mesothelioma. In the summer of 1999, his condition worsened. In July, Arthur gave a videotaped statement under oath to his attorney; attorneys from various potential defendants, other than Owens-Illinois, were present to cross-examine him. In his statement, he swore that he had been diagnosed with mesothelioma; it was terminal; he sometimes, but not very often, had a little difficulty breathing; he was not feeling well that day; he believed he was dying; he had told his wife that morning he wanted to go home because he did not want to die in the hospital; and he believed he was going to die "soon." He also stated he had been exposed to asbestos at various jobs during his life and that some of the boxes containing the asbestos were labeled as Kaylo, an Owens-Illinois product. A day after the statement, Arthur became unconscious and, eleven days later, he died. Mills filed this action approximately six months later.
Owens-Illinois joined in a motion to strike Arthur's videotaped statement because it did not comply with Rule 32(a), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, and was not a dying declaration under Rule 804(b)(2), Ariz. R. Evid., 17A A.R.S. After Mills responded, the trial court found that the videotape did not satisfy Rule 804(b)(2) and was thus inadmissible hearsay. Owens-Illinois then moved for summary judgment asserting Mills had not produced evidence showing that Arthur had been exposed to or harmed by their product. The trial court granted the motion, and this appeal followed.
Mills argues that the trial court erred by concluding the statement was not admissible as a dying declaration under Rule 804(b)(2). We review a trial court's decision to exclude evidence for an abuse of discretion. Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). But, we review the interpretation of statutes and court rules de novo. Patterson v. Maricopa County Sheriff's Office, 177 Ariz. 153, 156, 865 P.2d 814, 817 (App. 1993); see also Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App. 1996) ("Interpretation of the meaning and effect of a court rule is a question of law subject to de novo review.").
Rule 804(b)(2) creates an exception to the hearsay rule and allows admission of "a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death." The rationale for this exception is that "[dying] declarations are especially trustworthy" and that "one in fear of impending death speak under the same obligation as one testifying under oath." Joseph M. Livermore et
Page 1 2 Arizona Personal Injury Attorneys
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