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O'Banion v. Owens-Corning Fiberglas Corp.

968 F.2d 1011 (1992)

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O'Banion v. Owens-Corning Fiberglas Corp.

United States Court of Appeals for the Tenth Circuit

968 F.2d 1011 (1992)

Facts

Stanley O’Banion (plaintiff) sued Owens-Corning Fiberglas Corporation (Owens-Corning) (defendant) for asbestos-related injuries. At trial, instead of having an expert witness testify live, Owens-Corning introduced the expert’s prior trial testimony from another asbestos case. Owens-Corning did not make any showing that the expert was unavailable. Rather, the former testimony was used to avoid the expense of having the expert travel and testify in the current case. O’Banion’s attorney had represented the plaintiff in the earlier case and had thoroughly cross-examined the expert in that case. The trial court found that the expert witness’s former testimony was admissible under the hearsay exception in Rule of Evidence 804(b) for former testimony. The jury found for Owens-Corning, and O’Banion appealed, arguing that the expert witness’s testimony did not qualify for the former-testimony hearsay exception and should have been excluded.

Rule of Law

Issue

Holding and Reasoning (Saffels, J.)

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