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February 14, 2013 Articles

Using Expert Testimony by Plaintiffs to Oppose Summary Judgment: Part I

Pay close attention to the rules pertaining to admitting expert testimony in summary judgment briefing.

By Betsy Collins

Under federal law, the standard for consideration of a motion for summary judgment is well known. Indeed, recently at a conference of federal bankruptcy judges, some judges expressed distaste for legal writing in briefs that reiterates familiar standards such as the one for summary judgment. While that position is somewhat understandable, I can remember my civil-procedure professor admonishing us to treat the federal rules like our bible and commit to reading those rules over and over again. Like great moral truths, the finer points of rules and standards can easily be forgotten or overlooked if they are not considered afresh each time you prepare a motion for summary judgment or respond to one. It is all too easy to fall into a habit of sloppiness where you fail to abide by those procedural niceties that a diligent lawyer on the other side may be able to exploit, particularly if the federal judge in question is a stickler for rules and procedure.

In Smith v. The Prudential Insurance Company of America, 864 F. Supp. 2d 654 (M.D. Tenn. 2012), the life-insurance-company defendant filed a motion for summary judgment in connection with an action against the beneficiaries under a group-life-insurance certificate within the contestability period. The insured had died of a gunshot wound to the chest while in a hunting house. The deceased’s rifle was found on the ground near the hunting house some 20 feet below the body. The incident occurred during the summer when no particular hunting was in season. The medical examiner had ruled the death a suicide, but the family of the deceased had challenged that finding and strenuously contested the viability of the medical examiner’s opinion.

At the time of the summary-judgment motion, the plaintiffs’ beneficiaries had identified three expert witnesses: a pathologist, a psychiatrist who had conducted a supposed forensic psychiatric autopsy, and an accountant on issues regarding the decedent’s complex financial investments. The insurance company had identified three experts: a medical examiner/pathologist, a crime-scene-reconstruction/blood-spatter expert, and a forensic accountant. All of the experts had provided written reports, and all of the experts had been deposed by the time the motion for summary judgment was filed.

It bears mentioning that it is always a good idea to not only review the regular federal rules but also any local rules as well as any standing orders or other special rules of the individual judge. The rule and the standard for granting the motion set the stage for what a movant should use to support the motion and also what the non-movant should use to defend against the motion. The summary-judgment movant has to show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law under Rule 56(a). Smith, 864 F. Supp. 2d at 664. At the summary-judgment stage, the judges’ function does not involve weighing the evidence to determine the truth of the matter asserted, but rather determining whether there is a genuine issue for trial. Id. Thus, if a moving defendant is able to show that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim, then the burden will shift to the plaintiff to come forth with evidence beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Id. Naturally, also as a part of the standard for summary judgment, the court must draw all inferences in the light most favorable to the plaintiff. Id. at 664. But on the other hand, the plaintiff’s proof must be more than “merely colorable” and “[a]n issue of fact is ‘genuine’ only if a reasonable jury could find for the plaintiff.” Id. (citations omitted).

There were substantial questions related to whether the decedent had committed suicide or whether his death was accidental or a result of homicide. In challenging the motion for summary judgment, the plaintiffs depended, in large part, on conclusions reached by their experts in the field of psychiatry, pathology, and forensic accounting to overcome the motion for summary judgment that was based on, among other things, the medical examiner’s ruling that the death was suicide, and the insured’s precarious financial-investment situation. Although the plaintiffs had access to the deposition transcripts of their experts, they did not rely on the deposition transcripts. Likewise, they did not submit affidavits from their experts. Rather, the plaintiffs simply put unsworn expert reports of their experts in the record in support of their opposition to the motion for summary judgment.

In its reply to the plaintiffs’ opposition to the motion for summary judgment, the defendant insurance company objected to those expert reports, arguing that unsworn expert reports should not be considered at the summary-judgment stage and made a number of specific evidentiary objections to the admissibility of the reports and the underlying opinions in the reports.

The court agreed with the defendant that the expert testimony offered through unsworn expert reports was inadmissible hearsay and could not be considered at the summary-judgment stage. Id. at 659. The court noted that “expert testimony may be introduced in summary judgment proceedings through an affidavit or declaration that satisfies the general requirements for summary judgment affidavits and declarations set forth in Fed. R. Civ. P. 56(c)(4).” Id. The court went on to note that “[e]ven if the reports were properly authenticated, the reports and the underlying opinions are subject to all other rules of evidence, including traditional standards for the admissibility of expert testimony.” Id. As a result, the court refused to consider “the Plaintiffs’ expert reports or any unsupported and/or inadmissible facts asserted therein” in connection with the motion for summary judgment.

In addition to the arguments regarding the experts, the defendant objected to the plaintiffs’ opposition to the motion for summary judgment because certain of the plaintiffs’ “alleged facts contain[ed] characterizations, generalizations, and statements not contained in the referenced citations, and/or require[d] impermissible and unreasonable inferences from the underlying evidence.” Id. at 657. The court agreed that the defendant had “raised valid concerns as to many of the alleged ‘facts.’” Id. Among the various problems were that affidavits were not based on personal knowledge, contained hearsay or even double hearsay, and were speculative. Id. As the court noted, an “‘affidavit or declaration must be made on personal knowledge, set out facts that will be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated.’” Id. at 658 (citations omitted).

It is important to note at this juncture, that under Tennessee law, there is a presumption against suicide. The defendant insurance company had to overcome that presumption against suicide, which provided the plaintiff beneficiaries with a “low prima facie burden to show that [the decedent] died under circumstances not inconsistent with accident.” Id. at 670. Under the local rules for the Middle District of Tennessee applicable to the Smith case, the plaintiffs were required to provide a “concise statement of the material facts” as to which the plaintiffs contended that there was “no genuine issue for trial” and they were supposed to support those contentions “with specific citations to the record.” Id. at 658. The court found that the plaintiffs had not strictly adhered to the requirement of that rule, but the court went on to “conduct a fact-by-fact analysis to determine the accuracy of each challenged fact alleged by Plaintiffs, whether that fact [was] supported by admissible evidence, and, if so, whether there [was] a genuine issue concerning that fact for trial.” 864 F. Supp. 2d at 658. The plaintiffs were thus lucky that the federal judge took an inordinate amount of time to sift through a fairly substantial record to confirm enough facts for the plaintiffs so that the plaintiffs could survive the summary-judgment motion. Thus, in the final analysis, the court found that “[e]ven though the evidence is suggestive of suicide, whether the evidence meets the defendant’s burden for displacing the presumption against suicide is a matter for the jury.” Id. at 670. That said, the court found it to be a “close call,” and the plaintiffs narrowly escaped summary judgment. Id.

Thus, the takeaway for parties moving for summary judgment is to be meticulous in raising procedural inadequacies in the non-movants’ opposition to the motion and in raising objections to the “facts” or evidence presented by the non-movant in its opposition to summary judgment citing with particularity the evidentiary rules that apply. The lesson for the non-movant on a motion for summary judgment is that although your burden may be relatively low, you must come forward with admissible evidence and reasonable inferences to overcome the evidence and legal arguments offered by the movant and you should strictly adhere to any procedural requirements for how you submit any such evidence. Additionally, you should avoid being sloppy with the use of inferences or the use of testimony that is not based on personal knowledge.

Part II of this article will describe the unique procedure that was used to present the direct testimony of experts in narrative form, which is commonly done in some jurisdictions—and almost never in others.


Keywords: litigation, pretrial practice, discovery, expert testimony, dispositive motions


Betsy P. Collins is a partner with Burr & Forman, LLP in Mobile, Alabama.

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