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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
s").
Furthermore, the record does not support Asbestospray's claim that any probative value of the McIntosh evidence was outweighed by its prejudice. Introduction of the McIntosh testimony was prefaced with an explicit explanation to the jury by the trial court that
"the individual about whom the next witness will testify, . . . Mr. Rufus McIntosh, he has worked in many Baltimore City public schools and public school buildings and has been exposed to thermal insulation or pipe and boiler materials in these buildings, and he has worked in one City school building that contains spray fireproofing materials, but has never worked in any of the buildings at issue in this trial and has never been exposed to any of the products of these defendants."
There is no indication from the record that the McIntosh evidence was used to create the impression that the City
custodian had indeed been injured by Asbestospray's product. Rather, the jury was charged with determining liability only for those asbestos-containing products installed in those buildings at issue in this case. The McIntosh evidence merely tended to show the health risks of asbestos-containing building materials.
E.
The defendant argues that the deposition of Dr. Kenneth Wallace Smith should have been excluded because it did not meet the requirements of Maryland Rule 2-419 and, therefore, was not admissible under the common law former testimony exception to the rule against hearsay evidence. Asbestospray claims that, because the Smith deposition was taken in an asbestos personal injury action and not a property damage case, and because Asbestospray was not present at the Smith deposition, it cannot properly be considered a "predecessor in interest" against whom the deposition could be used at trial.
Recently, in Owens-Illinois v. Zenobia, supra, 325 Md. at 439-444, 601 A.2d at 642-645, we considered the Smith deposition in light of Maryland Rule 2-419. There, we rejected the defendant's narrow argument that a "predecessor in interest" may only be one who is in privity with an earlier party. 325 Md. at 440, 601 A.2d at 642-643. See McCormick, {PA}
Page 180} Evidence, ยง 256, at 620 (E. Cleary ed., 2d ed. 1972). Rather, we adopted a "motive to develop the testimony" test, saying (325 Md. at 440-442, 601 A.2d at 642-643, quoting Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1295 (6th Cir. 1983), cert. denied, 467 U.S. 1253, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984)):
"'"if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party." Under these circumstances, the previous party having like motive to develop the testimony about the same material is, in the final analysis, a predecessor in interest to the present party.'"
In this case, Asbestospray's complaint that the DeRocco defendants did not have a similar motive to develop Dr. Smith's testimony is without merit. The fact that this case does not involve a request for personal injury damages does not mean that the defendants in the earlier proceeding did not have similar motives to develop the testimony. As discussed in Part I of this opinion, the tort causes of action in this case may be maintained on the ground that asbestos-containing building materials pose a significant health risk to building users. Thus, in considering
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