Ninth Circuit Upholds Inadmissibility of Declaration by Deceased Plaintiff

March 17, 2021 – Press Release

March 17, 2021 (San Francisco, CA) – On March 1, the U.S. Court of Appeals for the Ninth Circuit affirmed District Judge Robert J. Bryan’s evidentiary ruling that a declaration signed by the decedent-plaintiff, Donald Varney, the day before he died was inadmissible because it lacked foundation. The result of that ruling was the grant of several defendants’ summary judgment motions. Mr. Varney’s attorneys prepared the type-written declaration describing Mr. Varney’s work with defendants’ asbestos-containing products. While Mr. Varney lie in his hospital bed, Mr. Varney’s attorney had him sign the declaration in front of a notary and priest that his attorney scheduled to appear as witnesses to the signature. 
The Judge’s ruling that the declaration was inadmissible followed a three-day “mini-trial” in April 2019 in the U.S. District Court for the Western District of Washington in Tacoma. Claire Weglarz, on behalf of Hawkins Parnell & Young’s sealing manufacturer client, was one of two counsel who took lead at the trial. In addition to presenting evidence preserved before the trial, Claire cross-examined Mr. Varney’s wife (also present when the declaration was signed) and gave an opening statement and closing argument. Claire specifically argued that Mr. Varney’s previous discovery responses which stated that “his attorneys have information suggesting that [he] was exposed to the defendants’ asbestos products” were evidence that Mr. Varney lacked personal knowledge of the statements contained in his declaration. 
Mr. and Mrs. Varney are represented by the Dean Omar Branham Shirley law firm. The case is titled Maria Varney v. Air & Liquid Systems Corporation, et al., U.S. District Court, Western District of Washington at Tacoma, Case No. 3:18-cv-05105-RJB.