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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
ary judgment.
B.
Petitioner also maintains that the testimony of Kidd, given under oath before the Commission, ought not to have been considered in granting summary judgment. In this Court, Petitioner argues that the testimony was inadmissible because it failed to comply with Maryland Rule 2-311 ("Motions"), ยง (d) which reads: "A motion or a response to a motion that is based on facts not contained in the record or papers on file in the proceeding shall be supported by affidavit and accompanied by any papers on which it is based." The argument seems to be that Respondents were required to present an affidavit of Kidd containing the substance of this testimony because an asserted difference in the issues before the Commission and those before the circuit court precluded the introduction of the earlier testimony. Petitioner does not contend that Kidd's testimony is irrelevant, and, as we shall demonstrate, infra, we find it to be highly relevant.
At trial, a transcript of Kidd's former testimony, if offered by Respondents, would be inadmissible over objection unless Respondents could show that Kidd was unavailable within the meaning of Rule 5-804(a), and that the Petitioner had "an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination" in the workers' compensation proceeding. See Rule 5-804(b)(1). The argument, however, confuses the requirements for admitting evidence at trial with the requirement, in the summary judgment context, that the movant "plac before the court facts which would be admissible in evidence." Vanhook, 22 Md. App. at 26, 321 A.2d at 542.
The distinction between summary judgment and trial becomes apparent by considering the different functions of an affidavit in each context. An affidavit suffices in the summary judgment context to place before the court a fact that, if testified to by the affiant at trial, would be admissible, even though the affidavit itself generally is not admissible at trial. The court can reasonably assume that, if called as a witness at trial, the affiant would testify to the same facts as those set forth in the affidavit. Thus, the trial judge may consider the affidavit in the summary judgment context even though, at trial, the affidavit itself generally would be inadmissible and the affiant would have to testify.
A transcript of former testimony possesses the same indicia of reliability as an affidavit in the summary judgment context. The transcript indicates the matters to which the witness, if called in the present case, would testify, because, like an affiant, the witness gave the former testimony under oath. By a parity of reasoning, the court on summary judgment may consider the transcript of the former testimony even though, at trial, the transcript itself might not be admissible under Rule 5-804(b)(1).
Although it appears that no Maryland court has addressed specifically this issue in the summary judgment context, the Court of Special Appeals has held that testimony from a previous trial may be attached as an exhibit to a response to a motion for summary judgment filed in the same case upon remand. See Casey v. Grossman, 123 Md. App. 751, 758, 720 A.2d 959, 962 (1998), cert. denied, 353 Md. 269, 725 A.2d 1068 (1999). Other courts addressing this issue also have decided that a trial judge, when ruling on a motion for summary judgment, properly may consider a transcript of former testimony because the transcript has the sort of reliability just noted. Although some courts have decided otherwise, those cases appear to involve the use of trial or deposition testimony from a previous case to which the plaintiff or defendant against whom the evidenc
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