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Case Law Update: Mesothelioma and Depositions

In Berry v. American Standard, Inc., No. 5-06-0621 (May 19, 2008), Crawford County (Welch), the Court affirmed the trial court’s holding that the plaintiff, suffering from terminal mesothelioma, who unsuccessfully sought to have his evidence deposition taken, and whose discovery deposition was extended over sufficiently long period of time that he died before it could be taken, was nevertheless a party to the litigation for purposes of SCR 212(a)(5) even after his wife was substituted as plaintiff as administrator of his estate. Nor do they qualify as dying declarations. Therefore, his discovery deposition could not be used as evidence at trial; and was properly barred by trial court.