Metropolitan News-Enterprise


Friday, May 22, 2020


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California Supreme Court:

Testimony Recalling Company Name and Logo on Invoices Not Hearsay as to Identity of Supplier

Corrigan’s Opinion Says It Was Admissible Circumstantial Evidence


By a MetNews Staff Writer


Above is the Keenan logo.

The California Supreme Court yesterday reversed a Court of Appeal determination that a verdict in a product liability action could not stand because the pivotal evidence linking the defendant to cement pipes that exposed a worker to asbestos was a witness’s recollection of the company’s name and logo on invoices for the pipes which, as the First District’s Div. One saw it, conveyed hearsay.

Justice Carol Corrigan wrote yesterday’s opinion for a unanimous court. It reverses an Oct. 26, 2018 opinion by Presiding Justice Barbara Jones.

Alameda Superior Court Judge Brad Seligman—who presided at the trial of Frank and Cynthia Harts’ action against Keenan Properties, Inc.—“was correct” in ruling that the evidence did not constitute hearsay, Corrigan declared.

                            $1.6 Million Judgment

Frank Hart, joined by his wife, sued over his having developed mesothelioma based on worksite exposure to cement pipes—cutting and laying them—which contained asbestos. A jury’s award against Keenan, after fault was apportioned and settlements with other defendants were taken into account, totaled $1,626,517.82.

The verdict was based on testimony by John Glamuzina, who had been a foreman on the work project, who testified that he knew Keenan had been supplier of the pipes because he recalled its name and logo on invoices.

Jones said, in the 2018 opinion that upset the judgment:

“Glamuzina’s belief that Keenan supplied the asbestos-cement pipe was based on his review of invoices or delivery tickets. The wording on these invoices or delivery tickets was out-of-court statements offered to prove the truth of the matter asserted: namely, that Keenan supplied the pipes. The invoices described by Glamuzina were hearsay.”

Corrigan’s Opinion

Disagreeing, Corrigan said that “[u]nder the facts presented, a witness’s observation of the name and logo was circumstantial evidence of identity.” She recited that there’s no hearsay “unless the words are offered to prove the truth of their content,” and there was no attempt to prove the truth of any assertions contained in the Keenan invoices.

Corrigan explained:

“Suppose that Glamuzina testified that the pipes were accompanied by a document bearing the legend: ‘Best Pipes On The Planet,’ and the company representative testified that Keenan printed that slogan on their invoices. That evidence, taken together would have a tendency in reason to prove the disputed link. The words would not be admissible to prove that Keenan’s pipes were the best on Earth, as the slogan asserted. They would, however, be admissible as circumstantial evidence that the pipes that were delivered along with the identified invoice came from Keenan. The inference would be valid regardless of whether the assertion in the slogan is true.”

The jurist went on to say:

“Here the link between Keenan and the pipes does not depend on the word ‘Keenan’ being a true statement that Keenan supplied the pipes. Instead, the link relies on several circumstances demonstrated by the evidence. The foreman testified that when the pipes were delivered, he was given an invoice bearing Keenan’s name and logo and that the invoice matched the load delivered. Bookkeeper [Olga] Mitrovich testified she would not pay for a delivery without receiving paperwork from the foreman. Keenan’s representative identified its logo and testified that it was printed on Keenan invoices. He also confirmed the practice of providing an invoice to customers. Taken together, the evidence was relevant to prove the disputed link between Keenan and the pipes, regardless of the content the words on the invoice might otherwise have asserted.”

The court did not direct that the Superior Court judgment be reinstated. Rather, it remanded for consideration of issues the Court of Appeal had not previously addressed.

The case is Hart v. Keenan Properties, Inc., 2020 S.O.S. 2434.


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