Hope et al v. Hewlett-Packard Company
Filing
80
ORDER DENYING 73 Motion for Reconsideration filed by Hewlett-Packard Company. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KYRA HOPE, et al.,
Plaintiffs,
v.
CIV. NO. 14-11497
HON. TERRENCE G. BERG
HEWLETT-PACKARD COMPANY, et al.,
Defendants.
_________________________________________/
ORDER DENYING DEFENDANT HP’S
MOTION FOR RECONSIDERATION (DKT. 73)
This matter is before the court on Defendant Hewlett-Packard, Company’s
(“HP”) motion for reconsideration (Dkt. 73) of the Court’s January 25, 2016 order
(Dkt. 71) granting Defendant Samsung SDI, Co., Ltd.’s (“SDI”) motion for summary
judgment (Dkt. 39), denying SDI’s motion for sanctions (Dkt. 43) and granting
Plaintiffs’ motion to strike HP’s notice of non-party fault against SDI (Dkt. 61).
Because HP has failed to identify a palpable defect in the Court’s January 25, 2016
order (Dkt. 71), the motion for reconsideration (Dkt. 73) will be DENIED.
The Court may grant a motion for reconsideration if the movant satisfactorily
shows that: (1) a palpable defect misled the parties and the Court; and (2)
correcting the defect would result in a different disposition of the case. See E.D.
Mich. L.R. 7.1(h)(3). A defect is palpable if it is “obvious, clear, unmistakable,
manifest, or plain.” Olson v. Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich.
2004). The Court will not grant a motion for reconsideration “that merely present[s]
the same issues ruled upon by the court, either expressly or by reasonable
implication.” Id.
HP’s motion for reconsideration essentially repackages the arguments made
in HP’s prior briefs, seeking to convince the Court it was mistaken in not accepting
HP’s view of the case. In particular, HP again argues that it was improper for the
Court to grant SDI’s motion for summary judgment without allowing HP to conduct
additional discovery. The Court already carefully explained its reasons for
concluding that SDI was entitled to summary judgment at this stage of the
litigation. Because HP identifies no palpable defect in the Court’s order, the motion
for reconsideration is not well taken and must be denied.
One argument in HP’s motion for reconsideration that was not raised in its
previous briefing or during the hearing on SDI’s motion for summary judgment,
deserves closer scrutiny. Specifically, HP contends that the Court erred in relying
on unsworn expert reports in granting summary judgment to SDI. HP maintains
that these reports are inadmissible hearsay, and cites two Sixth Circuit cases
holding that unsworn expert reports may not be relied upon by the Court to decide a
summary judgment motion. See Sigler v. Am. Honda Motor Co., 532 F.3d 469, 48081 & 488 (6th Cir. 2008) (Expert’s report was unsworn letter and the district court
erred in considering it in deciding summary judgment motion); Pack v. Damon
Corp., 434 F.3d 810, 815 (6th Cir. 2006) (“[T]he…[expert] Report is unsworn and
thus is hearsay, which may not be considered on a motion for summary judgment”).
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Having carefully considered this argument, the Court concludes it is not well-taken
for several reasons.
First, since Sigler and Pack were decided, Rule 56 has been substantially
amended and revised, and subdivision (e) of the former Rule 56 – which governed
the admissibility of evidence for purposes of summary judgment and on which
Sigler and Pack relied – has been largely omitted. See Fed. R. Civ. P. 56 advisory
committee notes, 2010 amendments, subdivision (c) (“Subdivision (c) is new....
Subdivision (c)(4) carries forward some of the provisions of former subdivision (e)(1).
Other provisions are relocated or omitted”). Rule 56 governs the procedure by
which the Court must review objections to the admissibility of evidence presented in
connection with a motion for summary judgment. In some respects, the 2010
amendment to Rule 56 worked a sea change in summary judgment practice and
introduced flexible procedures in place of hard and fast rules. Former Rule 56(e)
contained an unequivocal direction that documents presented in connection with a
summary judgment motion must be authenticated:
If a paper or part of a paper is referred to in an affidavit, a sworn or certified
copy must be attached to or served with the affidavit. Fed. R. Civ. P. 56(e)(1)
(2009 version).
Relying on this language, the Sixth Circuit routinely held that unauthenticated
documents could not be used to support a motion for summary judgment. See, e.g.,
Moore v. Holbrook, 2 F.3d 697, 698–99 (6th Cir. 1993). As recently as 2009, the
Sixth Circuit stated that unauthenticated documents do not meet the requirements
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of Rule 56(e) and must be disregarded. See Alexander v. CareSource, 576 F.3d 551,
558–59 (6th Cir. 2009).
These authorities must be read carefully, however, in light of the 2010
amendments to Rule 56, which eliminated the unequivocal requirement that
documents submitted in support of a summary judgment motion must be
authenticated. As amended, Rule 56 allows a party making or opposing a summary
judgment motion to cite to materials in the record including, among other things,
“depositions, documents, electronically stored information, affidavits or
declarations” and the like. Fed. R. Civ. P. 56(c)(1)(A). If the opposing party believes
that such materials “cannot be presented in a form that would be admissible in
evidence,” that party should lodge an objection in its summary judgment briefing.
Fed. R. Civ. P. 56(c)(2). Significantly, the objection contemplated by the current
version of Rule 56 is not that the material “has not” been submitted in admissible
form, but that it “cannot” be. The comments to the 2010 amendments make it clear
that the drafters intended to make summary judgment practice conform to
procedures at trial. “The objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is anticipated. There
is no need to make a separate motion to strike.” Fed. R. Civ. P. 56 (2010 Advisory
Committee Notes). Revised Rule 56 therefore clearly contemplates that the
proponent of evidence will have the ability to address the opponent’s objections, and
the Rule allows the court to give the proponent “an opportunity to properly support
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or address the fact,” if the court finds the objection meritorious. Fed. R. Civ. P.
56(e)(1). Thus, the amendment replaces a clear, bright-line rule (“all documents
must be authenticated”) with a multi-step process by which a proponent may
submit evidence, subject to objection by the opponent, and an opportunity for the
proponent to either authenticate the document or propose a method to doing so at
trial.
In this case, all parties were advised that the summary judgment issue for
SDI would be decided based on whether any party could produce an expert report
showing that defects in SDI’s batteries played any role in causing the fire in
question. All parties submitted their expert reports, and HP never objected, nor did
any party, that the expert reports were inadmissible hearsay before the Court ruled
on SDI’s motion for summary judgment. HP raises this objection for the first time
in its motion for reconsideration, after the Court granted SDI’s motion for summary
judgment. The Sixth Circuit has held that “[i]f a party fails to object before the
district court to the affidavits or evidentiary materials submitted by the other party
in support of its position on summary judgment, any objections to the district
court’s consideration of such materials are deemed to have been waived,
and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage
of justice.” Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). Interestingly,
Wiley presented the same procedural scenario as the present case – a party objected
to summary judgment evidence in a motion for reconsideration, after the district
court had already granted summary judgment. The Sixth Circuit held that the
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failure to object in the initial briefing operated as a waiver of any objection, even
under the previous “bright-line” version of Rule 56. Many courts addressing this
issue are in accord with this approach. See, e.g., In re GOE Lima, LLC, No. 08–
35508, 2012 WL 4468520 *1 n. 1 (Bankr. N.D. Ohio Sept. 25, 2012) (considering
unauthenticated documents where the other side did not object); Powers v. Chase
Bankcard Serv., Inc., No. 2:10–cv–332, 2012 WL 1021704 *9 n. 3 (S.D. Ohio Mar.
26, 2012) (“Chase, however, has not objected to the consideration of this evidence
based on the fact that it is not sworn and any such objection is now waived”);
Thomas & King, Inc. v. Jaramillo, No. 08–191, 2009 WL 649073 *3 (E.D. Ky. Mar.
10, 2009) (“Evidence not meeting the requirements of Rule 56(e) ‘may be considered
by the district court unless the opposing party affirmatively raises the issue [of] the
defect’”) (quoting Bennett v. Univ. Hospitals of Cleveland, 981 F.Supp. 1065 (N.D.
Ohio 1997))); In re Appalachian Finishing Works, 244 B.R. 771, 773 n. 2 (Bankr.
E.D. Tenn. 2000) (considering improperly unauthenticated documents because the
other side did not object to them); Bellamy v. Roadway Express, Inc., 668 F.Supp.
615, 623 n .5 (N.D. Ohio 1987) (considering improper documents where there was no
objection); see also Jackim v. Sam's East, Inc., 378 Fed. App'x 556, 564 (6th Cir.
2010) (noting that a party waives evidentiary objections to summary judgment
materials by not raising them to the trial court); In re Batie, 995 F.2d 85, 89 (6th
Cir. 1993) (noting that even though the district court should not rely on
unauthenticated documents, the lack of objection renders the error unreviewable).
Thus, HP’s failure to object to the admissibility of the expert reports prior to ruling
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on SDI’s motion for summary judgment operates as a waiver of any such objection
now.
Finally, SDI and Plaintiffs filed declarations and affidavits from their experts
swearing to the contents of their report (Dkts. 74, 75, 76, 77, 78). HP declined to
have its expert file a similar affidavit. The affidavits affirming the contents of each
expert’s report cure any technical deficiencies associated with the submission of the
original, unsworn reports. See, e.g., Gordon v. Caruso, No. 1:06–cv–571, 2010 WL
882855, *2 (W.D. Mich. Mar. 9, 2010) (permitting moving party to supplement
summary judgment motion with affidavit from expert witness that “affirms the
contents of the expert report”); In re Iron Workers Local 25 Pension Fund, No. 04CV-40243, 2011 WL 1256657 *12 (E.D. Mich. Mar. 31, 2011) (same); see also
Harnden v. Jayco, Inc., 496 F.3d 579, 583 (6th Cir. 2007) (noting possibility of
remanding matter for the submission of sworn expert report, but declining to do so
finding consideration of unsworn report on summary judgment was harmless error).
Therefore, SDI and Plaintiffs have presented admissible evidence indicating that
there is no genuine issue of material fact that a defect in SDI’s batteries contributed
to causing the fire. The burden then shifted to HP to come forward with evidence
showing a genuine issue of material fact that SDI’s were somehow defective and
contributed to the fire.1 HP has completely failed to do so.
As explained in the Court’s order granting SDI’s motion for summary judgment (Dkt. 71), but
worth repeating here, HP’s experts also concluded that SDI’s batteries were not defective.
1
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For all these reasons, HP’s motion for reconsideration (Dkt. 73) is not welltaken, and is therefore DENIED.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: March 3, 2016
Certificate of Service
I hereby certify that this Order was electronically submitted on March 3,
2016, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager
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