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D'Agastino v. Uniroyal-Goodrich Tire Co.8/7/1998
dner testified that he had no information that appellee knew of the mismatching hazard prior to the date it was first named in a lawsuit. Roudebush testified that he discussed the mismatching hazard at meetings that appellee's representatives generally attended.
Appellee next contends that Roudebush's affidavit cannot be admitted into evidence because his deposition was not taken in this case and appellee did not participate in the depositional proceedings. In support of its argument, appellee cites Plikerd v. Mongeluzzo (1992), 73 Ohio App.3d 115, 596 N.E.2d 601. In Plikerd, the court refused to consider portions of depositions attached to the party's appellate brief to determine whether summary judgment was properly granted to the opposing party because the depositions had never been before the trial court. Furthermore, in dicta, the court indicated that the deposition could not be used against the opposing party because it was taken before the opposing party was a party to the suit. In a more recent decision from that same appellate court this statement was corrected. Gerken v. Mir (Nov. 30, 1995), Mercer App. No. 10957, unreported, 1995 WL 723157. The Gerken court held that a deposition taken prior to joinder of a party "is at least as good as an affidavit which is allowed by Civ.R. 56," citing Napier v. Brown (1985), 24 Ohio App.3d 12, 15, 24 OBR 33, 36-37, 492 N.E.2d 847, 850-851. Accord Newland v. Amin (1991), 75 Ohio App.3d 616, 619, 600 N.E.2d 357, 359. Cf. Francis v. Cleveland (1992), 78 Ohio App.3d 593, 605 N.E.2d 966 (depositional excerpts that exclude the deponent's name are not admissible evidence to create a genuine issue of material fact). Other courts have extended the rule to depositions taken in different cases. Teichman v. Tripodo (Sept. 6, 1990), Cuyahoga App. No. 57419, unreported, 1990 WL 127924.
We conclude that the Roudebush deposition could be used in this case to create a genuine issue of material fact as to whether there was a failure to warn in this case.
We conclude that the trial court erred by granting summary judgment to appellee in this case because there are genuine issues of material fact. Appellants' two assignments of error are well taken.
Having found that the trial court committed error prejudicial to appellants, we reverse the judgment of the Lucas County Court of Common Pleas. This case is remanded to the lower court for further proceedings consistent with this decision.
Pursuant to App.R. 24, appellee is hereby ordered to pay the court costs incurred on appeal.
Judgment reversed and cause remanded MELVIN L. RESNICK and KNEPPER, JJ., concur.
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