PA Superior Court Permits Incomplete Deposition Testimony and Affidavit of “Unavailable Witness” to oppose Summary Judgment in Asbestos Claim

By: Edward A. Miller

Published: October 31, 2019

In an October 28, 2019 Opinion of a three-judge panel, the Pennsylvania Superior Court in Joyce E. Kardos, Executrix of the Estate of Nicholas J. Kardos, deceased, and Joyce E. Kardos, in her own right, v. Armstrong Pumps, Inc., 2019 PA. Super. 324, reversed the decision of a trial judge that precluded plaintiff from using an affidavit and incomplete deposition testimony of a deceased plaintiff/claimant to oppose summary judgment and granted summary judgment to certain defendants.

How the Decision Could Affect You

The practical effect of the Superior Court’s ruling in Kardos is that a passive, defensive approach of delaying cross-examination of a plaintiff on the chance that the deposition may never finish, is likely not a prudent strategy. The Superior Court’s analysis and holding in Kardos suggests that a defendant’s right to cross-examine a plaintiff in a civil, products liability action does not necessarily guarantee each individual defendant an opportunity to conduct its own cross-examination of the plaintiff; and that a defendant should exercise its right to cross examine the witness when given the opportunity to do so as it is likely that general use of the deposition testimony will be permitted.


Nicholas Kardos allegedly developed mesothelioma as a result of occupational exposure to asbestos. Prior to summary judgment arguments, the parties participated in a site inspection of the jobsite at issue; Mr. Kardos executed a sworn affidavit outlining his work duties and alleged asbestos exposures; and Mr. Kardos was deposed over the course of three days. Not all the defendants who appeared at the deposition, including some of the Appellees, cross-examined Mr. Kardos. There was no attempt to notice a fourth deposition day despite the fact that the questioning had not been completed on day three. Mr. Kardos died about a week later.

Defendants who did not question Mr. Kardos when he was deposed filed motions to preclude Plaintiff from relying upon Mr. Kardos’ affidavit and incomplete deposition testimony in opposition to summary judgment motions or at trial. The trial court granted this motion and ruled that the Plaintiff could not use Mr. Kardos’ affidavit and deposition testimony to oppose summary judgment motions. Without the product identification set forth in Mr. Kardos’ affidavit and deposition transcript, the trial court then granted the motions for summary judgment of those defendants who had moved to preclude that evidence.

The Superior Court in reversing the decision of the trial court held that the affidavit and incomplete deposition of Mr. Kardos were proper evidence to be considered by the trial court in response to Defendants’ Motions for Summary Judgment. The Superior Court noted that “supporting affidavits in response to a motion for summary Judgment are acceptable as proof of facts,” as long as it does not contradict the affiant’s testimony. Regarding Mr. Kardos’ incomplete deposition testimony, the Superior Court concluded that “a trial court should consider purported hearsay presented by a non-movant at the summary judgment stage if the non-movant can provide a plausible avenue for the admission at trial of the hearsay.” The Court then stated that “depositions are sufficient lawful proceedings, which warrant admission at trial when the deponent is unavailable and cannot testify.” Pointing to case law from other jurisdictions, including a Third Circuit opinion, the Superior Court agreed that the general admissibility of depositions at summary judgment and trial even applies when the deposition is “unfinished due to the deponent’s illness or death.” In its analysis and further support for its ultimate holding, the Superior Court emphasized that three of the Appellant Defendants were present for Mr. Kardos’ deposition and did not cross-examine him, while others did, and no defendant noticed a continuation of Mr. Kardos’ deposition in the days immediately following the close of his day three testimony.

Having determined that “the Pennsylvania Rules of Civil Procedure explicitly allow Mr. Kardos’ affidavit and deposition to be part of a record for summary judgment proceedings,” the Superior Court also agreed with Appellant that Mr. Kardos’ testimony meets the Rule 804(b)(1)(B) exception to hearsay, because Mr. Kardos was “unavailable” to testify at trial due to his death. In reaching this determination concerning the Rule 804(b)(1)(B) exception, the Superior Court emphasized that the rule “merely required Appellees to have the opportunity to develop the testimony.”

The Superior Court vacated the orders granting summary judgment; reversed the order precluding Mr. Kardos’ affidavit and deposition testimony; and remanded the case to the trial court for further proceedings.

If you have questions about the court’s decision, please contact one of the authors of this alert.

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