Zaccone v. Ford Motor Company

Filing 109

ORDER denying #94 Plaintiff Frank Zaccone's Motion to Strike Defendant, Ford Motor Company's Expert Affidavit. Signed by Judge Sheri Polster Chappell on 4/17/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK ANTHONY ZACCONE,
Plaintiff,
v.

Case No: 2:15-cv-287-FtM-38CM

FORD MOTOR COMPANY,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on pro se Plaintiff Frank Zaccone’s Motion to
Strike Defendant, Ford Motor Company’s Expert Affidavit. (Doc. 94). Defendant Ford
Motor Company has filed an opposition to the motion. (Doc. 100). For the reasons that
follow, the Court denies Zaccones motion.
This is a product liability case stemming from a rollover car accident in a 2006 Ford
Escape owned by Zaccone’s late-wife. Zaccone argues that the Escape had a defective
front airbag system, roof structure, and rollover protection/prevention system.

In

response to Zaccone’s suit, Ford has hired Alan Moore, a mechanical engineer and
accident reconstruction expert, to prepare a report on the accident. (Doc. 86-6). Ford
now relies on Moore’s report to support its motions for summary judgment. (Doc. 86;

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Doc. 92). But Zaccone moves to strike Moore’s report on grounds of bias because Ford
employed Moore nearly two decades ago and Moore regularly consults for Ford.
Federal Rule of Civil Procedure 56 governs the use of affidavits to support a motion
for summary judgment and provides that an affidavit “be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “[A]n affidavit
must be stricken when it is a conclusory argument, rather than a statement of fact, or
when the affidavit is not based on personal knowledge.” Pashoian v. GTE Directories,
208 F. Supp. 2d 1293, 1297 (M.D. Fla. 2002).
Here, Zaccone makes no argument against Moore’s personal knowledge and
competence. (Doc. 94 at 3). Rather, he attacks Moore’s credibility and the thoroughness
of his report. (See, e.g., Doc. 94 at 2). According to Zaccone, Moore’s affidavit and report
are “slanted and less than partial” because Moore is a “regular expert for hire” by Ford.
(Doc. 94 at 2). But allegations of bias are attacks against credibility. And a witness’s
credibility goes to the weight of the evidence – not admissibility. See Tippens v. Celotex
Corp., 805 F.2d 949, 954 (11th Cir. 1986) (“Issues concerning the credibility of witnesses
and weight of the evidence are questions of fact which require resolution by the trier of
fact.”); see also Hepp v. Paul Revere Life Ins. Co., No. 8:13-CV-2836-T-17TBM, 2015
WL 4072101, at *3 (M.D. Fla. July 2, 2015) (finding that attacks on a witness’ memory
goes to the weight of the evidence and thus not a proper reason to strike a declaration in
support of a summary judgment). The Court may only strike Moore’s affidavit and report
on admissibility grounds, which Zaccone does not present. The Court, therefore, denies
Zaccone’s motion to strike.

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Accordingly, it is now
ORDERED:
Plaintiff Frank Zaccone’s Motion to Strike Defendant, Ford Motor Company’s
Expert Affidavit (Doc. 94) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 17th day of April, 2017.

Copies: All Parties of Record

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