WILLIAM DEREK SYKES, as personal Representative of the Estate of WILLIAM DON SYKES, Plaintiff,
AIR & LIQUID SYSTEMS CORP., et al., Defendants.
Plaintiffs Exceptions to the Special Master's Decision.
HONORABLE CALVIN L. SCOTT, JR. JUDGE
filed a Notice of Exceptions to the Special Master's
Order of August 5, 2017. In the August 5 Order the Special
Master Granted Defendants' Motion to Exclude the
decedent, William Don Sykes's, testimony. Plaintiff
claims that the Special Master erred in granting
Defendants' Motion to Exclude the sworn testimony of
William Don Sykes. The facts are as follows. Mr. Sykes was
diagnosed with mesothelioma in October 2013. Mr. Sykes's
health was deteriorating, and the parties arranged for
expedited trial depositions and discovery depositions. Mr.
Sykes deposition was taken on April 16, 2014, about six weeks
after Plaintiff filed his Complaint. During a break, Mr.
Sykes informed his counsel that he would not be able to
proceed with the remaining portion of the deposition that day
due to his condition. Subsequently, Mr. Sykes's condition
worsened, he was unable to proceed with a deposition the
following day, and Mr. Sykes passed away just two weeks
later. At this time, the parties are left with the video
trial deposition of Mr. Sykes without cross examination by
Defendants. On August 5, 2017, the Special Master Ordered
that Mr. Sykes's trial deposition was inadmissible at
trial under the Delaware Rules of Evidence.
the Special Master, Defendants sought to exclude Mr.
Sykes's testimony as inadmissible hearsay under the
Delaware Rules of Evidence. Additionally, Defendants argued
that the D.R.E. 804(b)(1) exception to the hearsay rule did
not apply because Plaintiff did not meet his burden
demonstrating that any Defendant had an opportunity to
develop testimony from Mr. Sykes and Defendants attempted to
develop testimony but were denied the opportunity. Plaintiff
argued that the testimony was admissible under D.R.E.
804(b)(1) because Defendants, on the record, were given the
opportunity to cross examine Mr. Sykes but did not do so.
Additionally, Plaintiff argued that Mr. Sykes's testimony
fell within D.R.E. 807 "catch all" exception
because granting the motion would deprive Mr. Sykes of his
day in Court. The Special Master found that Mr. Sykes's
deposition testimony fell within the parameters of hearsay
under D.R.E. 801 as an out-of-court statement by a declarant,
offered into evidence to prove the truth of the matter
asserted. The Special Master considered three possible
exceptions to the rule against hearsay: Superior Court Civil
Rule 32, D.R.E. 804(b)(1) former testimony exception, and
D.R.E. 807 residual exception. The Special Master found that
there was no meaningful opportunity for cross-examination
under D.R.E. 804(b)(1) and the catch all provision of D.R.E.
807 did not apply.
filed a Notice of Exceptions to the August 5 Order by the
Special Master. Here, Plaintiff argues that the Special
Master erred in granting Defendant's Motion to Exclude
the testimony. Plaintiff avers that Mr. Sykes's testimony
is admissible under the former testimony exception of D.R.E.
804(b)(1), and his testimony is admissible under Superior
Court Civil Rule 32 independent from the Rules of Hearsay.
Defendants filed a Response in Opposition. Contrary to
Plaintiffs position, Defendants argued that they did not have
the opportunity to depose Mr. Sykes, and neither Superior
Court Civil Rule 32 nor the former testimony exception under
D.R.E. 804(b)(1) applies to this case. The Court reviews the
Special Master's legal and factual findings de
novo. First, it is not clear to the
Court what the error was that Plaintiff seeks an exception
to. The Special Master's decision was well reasoned and
there was no specific error that Plaintiff plead. Rather,
Plaintiff rehashed arguments already decided by the Special
as laid out in the Special Master's detailed analysis,
D.R.E. 804(b)(1) excludes former testimony from the hearsay
rule if the declarant is unavailable as a witness and the
"[t]estimony given as a witness at another hearing of
the same or a different proceeding, or in a deposition taken
in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered, or in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop
the testimony by direct, cross or redirect
examination." The issue between the parties is
whether Defendants had the opportunity to develop the
testimony by direct examination, cross-examination, or
redirect examination. The Court agrees with the Special
Master in that Defendants did not have the opportunity to
develop Mr. Sykes testimony. Plaintiff believes that
Defendants had the opportunity to develop Mr. Sykes's
testimony because counsel for Plaintiff notified Defendants
that due to Mr. Sykes's deteriorating health the
deposition should be taken on April 9, 2014 and Defendants
were unable to accommodate that request. Mr. Sykes deposition
was taken on April 16, 2014, and Defendant did not proceed
with cross-examination after Mr. Sykes videotaped deposition.
Subsequently, Mr. Sykes was unable to continue with the
deposition after the parties took a break and Defendant was
unable to cross-examine Mr. Sykes.
case law is instructive on determining when a party has had
the opportunity to develop testimony. For example, in
Panaro v. J.C. Penny Co., Inc., the court stated
"D.R.E. 804(b)(1) tracks F.R.E. 804(b)(1). F.R.E.
804(b)(1) allows deposition testimony to be admitted at trial
if the opponent had an opportunity and motive to develop the
testimony by direct, cross, or redirect examination. The
federal rules also allow the testimony if there was an
opportunity to develop, not necessarily complete, the
testimony." The court in Panaro held that
although the discovery deposition was not completed,
"there [was] no question that [defendant's] counsel
had motive and opportunity to
cross-examine." In Panaro the plaintiff was
able to complete direct examination on video, and defense was
able to question the plaintiff in a discovery deposition for
an hour and a half. Here, Mr. Sykes's videotaped trial
deposition began at 9:08 a.m. with his counsel's direct
examination, and at 9:57 a.m. Mr. Sykes took a rest.
Questioning resumed at 10:33 a.m. through 11:56 a.m.
Subsequently, Defense determined that they needed to take
their discovery deposition instead of cross examination. The
parties who were present took a break for lunch and attempted
to resume around 12:36 p.m. Mr. Sykes was unable to proceed,
and he subsequently passed away two weeks later.
on the facts of this case the Court is not persuaded that
Defendants had a meaningful opportunity to develop Mr.
Sykes's testimony. Merely because Defendants decided to
postpone their cross examination following the videotaped
direct examination does not constitute a "waiver"
of the opportunity for cross examination as Plaintiff argues.
Additionally, Superior Court Civil Rule 32 states that
"[a]t a trial or upon hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so
far as admissible under the rules of evidence applied as
through the witness were then present and testifying, may
be used against any party who was present or represented at
the taking of the deposition or who had reasonable
notice thereof.. ." The Court is not satisfied that the
Defendant was "represented" at the taking of the
deposition under Rule 32 because Defendant did not have the
opportunity to cross-examine Mr. Sykes. Similarly, the Court
is not persuaded by the argument that Rule 32 and the
Delaware Rules of Evidence are read independently. Finally,
as mentioned earlier in this Order, Plaintiff did not
demonstrate that the Special Master misconstrued facts or the
law for this Court to review. Rather Plaintiff rehashed
arguments already decided before the Special Master. For the
aforementioned reasons and the reasons set forth in the
Special Master's Order, the Special Master's decision
IS SO ORDERED.
 DiGiacobbe v. Sestak, 743 A.2d
180, 184 (Del. 1999); see also In re Asbestos
Litig., 623 A.2d 546, 548 (Del. Super.
1992)("Masters' decisions on pre-trial,
non-dispositive issues should be reviewed under the clearly
erroneous standard, while decisions which are case
dispositive or which determine substantial issues and
establish legal rights should be subject to de novo
 D.R.E. 804(b)(1).
 2002 WL 130692, at *2 (Del. Super. Jan.