Plaintiff expert report inadmissible in asbestos MDL

Michael P. Tremoglie Dec. 9, 2011, 12:54pm


PHILADELPHIA (Legal Newline) - A federal judge presiding over thousands of asbestos cases combined in multi-district litigation has ruled that a plaintiff's expert report was inadmissible because it was in an "unsworn" form.

U.S. District Judge Eduardo C. Robreno ruled that without the expert report, the plaintiff lacked the sufficient product identification necessary to support opposition to the defendant's motion for summary judgment.

Robreno presides at the U.S. District Court for the Eastern District of Pennsylvania.

He ruled Dec. 2 in favor of the motion by the defendant, Warren Pumps, for a summary judgment in the case.

The defendant asked for summary judgment because it claimed that there was insufficient evidence for product identification. The plaintiff's attorneys had relied on the testimony of an expert witness. But the judge ruled that the witness was unsworn and the evidence, therefore, was in admissible.

"Federal Rule of Civil Procedure...provides that a party asserting that a fact is genuinely disputed must support that assertion with particular parts of material in the record, such as an affidavit or declaration. The United States Court of Appeals for the Third Circuit has found that an unsworn expert report 'is not competent to be considered on a motion for summary judgment'," Robreno wrote.

The plaintiff's attorneys argued that an affidavit was not required, believing that an expert report would be sufficient for purposes of opposing the summary judgment motion.

Although the judge noted that Federal Rule of Civil Procedure 56 was
amended "effective December of 2010 to provide that a declaration, that is an unsworn statement subscribed to under penalty of perjury, can substitute for an affidavit."

But, he also said that "an expert report that is not sworn to under penalty of perjury or accompanied by an affidavit is not proper support in disputing a fact in connection with a motion for summary judgment."

Ultimately, Robreno rejected the plaintiff's claim that an unsworn expert report was sufficient for purposes of the summary judgment motion.

He then ruled that since the plaintiff's attorneys did not comply with the requirements, the expert report was "not competent" to be considered in support of opposition of the defendant's motion for summary judgment.

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