BURGESS et al v. MENTOR WORLDWIDE LLC et al

Filing 43

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
COLUMBUS DIVISION
* MDL Docket No. 2004
4:08-MD-2004 (CDL)
*
Case No.
* 4:13-cv-221 (Burgess)

IN RE MENTOR CORP. OBTAPE
TRANSOBTURATOR SLING PRODUCTS
LIABILITY LITIGATION

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.
Mentor

Worldwide,

LLC,

4:11-cv-5073,

and

the

report

of

Dr.

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
case

evaluating

Procedure 56.

a

prior

version

of

Federal

Rule

of

Civil

In 2003, the Eleventh Circuit found that the

district court did not err by declining to consider unsworn
expert

reports

submitted

in

opposition

to

summary

judgment.

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
summary

judgment,

‘pleadings,

a

district

depositions,

court

answers

to

could

consider

“[o]nly

interrogatories,

and

admissions on file, together with affidavits.’”

Id. (emphasis

omitted) (quoting Fed. R. Civ. P. 56(c) (2003)).
The

present

version

of

Rule

56(c)(1),

which

became

effective December 1, 2010, states:
A party asserting that a fact cannot be or
genuinely disputed must support the assertion by:

is

(A) citing to particular parts of materials in the
record,
including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those made for
purposes
of
the
motion
only),
admissions,
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
that

would

56(c)(2).
presented

be

admissible

in

evidence.”

Fed.

R.

Civ.

P.

If a party objects that the material cited cannot be
in

an

admissible

form,

then

the

proponent

of

the

evidence must show “that the material is admissible as presented
or . . . explain the admissible form that is anticipated.”

2010

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
Mentor’s

objection

opinions

stated

in

as

long

the

admissible form at trial.

as

expert

Plaintiffs
reports

explain

will

be

how

reduced

the
to

Here, Plaintiffs suggest that they
2

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

until

reply

Mentor

filed

its

brief,

Plaintiffs

shall

permitted to file a short sur-reply brief on this point.
sur-reply brief is due by August 1, 2016.
shall

explain

how

Dr.

Siegel’s

report

be
The

The sur-reply brief
will

be

reduced

to

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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