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)

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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 3

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