BURGESS et al v. MENTOR WORLDWIDE LLC et al
ORDER for Sur-Reply to Motion re: 39 MOTION for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/25/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
* MDL Docket No. 2004
* 4:13-cv-221 (Burgess)
IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
O R D E R
Defendant Mentor Worldwide, LLC filed a motion for summary
judgment in this action.
In response, Plaintiffs Helen and
Robert Burgess rely on two unsworn expert reports: the report of
Dr. Andrew Siegel that was prepared for the case of Cole v.
Amanda White that was prepared for this case.
Mentor argues that the Court cannot consider the unsworn
expert reports at summary judgment based on an Eleventh Circuit
In 2003, the Eleventh Circuit found that the
district court did not err by declining to consider unsworn
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003), as
amended (Sept. 29, 2003).
The Eleventh Circuit emphasized that
the version of Rule 56(c) in effect at the time stated that, at
admissions on file, together with affidavits.’”
omitted) (quoting Fed. R. Civ. P. 56(c) (2003)).
effective December 1, 2010, states:
A party asserting that a fact cannot be or
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the
declarations, stipulations (including those made for
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to
support the fact.
Rule 56 further provides: “A party may object that the material
cited to support or dispute a fact cannot be presented in a form
If a party objects that the material cited cannot be
evidence must show “that the material is admissible as presented
or . . . explain the admissible form that is anticipated.”
Advisory Comm. Note to Rule 56(c)(2).
Based on the text of the current version of Rule 56, the
Court finds that it may consider the unsworn expert reports over
admissible form at trial.
Here, Plaintiffs suggest that they
will offer the testimony of Dr. White at trial, but Plaintiffs
have not explained how Dr. Siegel’s report will be reduced to
admissible form at trial.
Given that this issue was not raised
permitted to file a short sur-reply brief on this point.
sur-reply brief is due by August 1, 2016.
The sur-reply brief
admissible form at trial and shall state whether Dr. Siegel was
disclosed as an expert in this individual case.
IT IS SO ORDERED, this 25th day of July, 2016.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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