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Eagle-Picher Industries Inc. v. Balbos8/29/1990
gh Dr. Braun's testimony that Eagle-Picher was once an IHF member and, therefore, that Eagle-Picher should have been aware of the contents of digest articles concerning asbestos. The most significant portion of Dr. Braun's testimony was his identification of a stack of index cards, each containing the name of a former IHF member, the date the company joined IHF, and the date the company resigned. One of the cards contained the name and relevant dates for Eagle-Picher.
At trial in the case before us, counsel for Eagle-Picher objected to the admission of Dr. Braun's 1985 deposition generally. Counsel also objected, more specifically, to the reading of Dr. Braun's deposition testimony concerning the index cards of former members and the admission of the cards themselves into evidence. The grounds for Eagle-Picher's objections can be summarized as follows:
1. Dr. Braun's testimony during the 1985 deposition conflicted with testimony he gave in depositions in 1977 and 1980.
2. Appellees failed to produce someone to show that the 1985 deposition was "what it purport to be."
3. Dr. Braun did not become president of IHF -- and thus "keeper" of the index card box -- until 1972. He therefore could not testify from personal knowledge that the index cards made before 1972 "were made at or near the time of the transaction."
4. No identifying marks identified the stack of index cards as an exhibit from the 1985 deposition.
5. The Eagle-Picher membership card indicated that the specific IHF member had been Eagle-Picher's chemicals and metals division, rather than the fibers division, which was the only division that manufactured asbestos.
6. Dr. Braun did not testify that the membership cards were created as "a memorandum of a transaction at or near the time the transaction occurred."
The trial judge overruled Eagle-Picher's objections to the 1985 deposition. Such evidentiary rulings were correct
because all of the grounds for the objections could have been obviated or removed if Eagle-Picher had presented them at the time of the deposition. Md.Rule 2-415(g).
B. The 1977 and 1980 Depositions
Following the trial court's rulings on the 1985 deposition, counsel for Eagle-Picher requested permission to enter into evidence excerpts from two depositions Dr. Braun gave in 1977 and 1980. Like the 1985 deposition, these were taken in connection with cases other than the two before us. Dr. Braun's statements in the two excerpts, particularly the one from the 1977 deposition, appear to be inconsistent with his implication that Eagle-Picher was a member of IHF. The trial judge denied counsel's request because Dr. Braun had not been given an opportunity to explain his earlier statements.
On appeal, Eagle-Picher acknowledges that a witness must be confronted with a prior inconsistent statement before it can be used to impeach him. As the Court of Appeals pointed out in Pettie v. State, 316 Md. 509, 560 A.2d 577(1989),
equiring a foundation makes perfect sense for reasons of fairness "in order that the witness may be enabled to refresh his recollection in regard to such statements, and be afforded the opportunity of making such explanation as he may deem necessary and proper."
Id. at 514, 560 A.2d 577(quoting State v. Kidd, 281 Md. 32, 46 n. 8, 375 A.2d 1105, cert. denied, 434 U.S. 1002, 98 S.Ct. 646, 54 L.Ed.2d 498(1977)). See also Campbell v. Patton, 227 Md. 125, 141, 175 A.2d 761(1961);
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