City of Dearborn Heights Act 345 Police & Fire Retirement System v. Chicago Bridge & Iron Company N.V. et al

Filing 298

ORDER denying as moot 295 Letter Motion to Seal; denying 296 Letter Motion for Leave to File Excess Pages; denying 297 Letter Motion for Leave to File Excess Pages: The application is DENIED as Plaintiffs' proposed additional materials a re unnecessary to consideration of Defendants' submissions and adjudication of the motions. Plaintiffs' motion to seal is DENIED as moot. The Clerk of Court is respectfully directed to close the docket entries at Nos. 295, 296 and 297. (Signed by Judge Lorna G. Schofield on 10/23/2020) (jwh)

Case 1:17-cv-01580-LGS Document 298 Filed 10/23/20 Page 1 of 3

The application is DENIED as Plaintiffs' proposed additional materials are
unnecessary to consideration of Defendants' submissions and adjudication of the
motions. Plaintiffs' motion to seal is DENIED as moot. The Clerk of Court is
respectfully directed to close the docket entries at Nos. 295, 296 and 297.
SO ORDERED
Dated: October 23, 2020
New York, New York

Re:

In re Chicago Bridge & Iron Company N.V. Sec. Litig., No. 1:17-cv-1580-LGS

Dear Judge Schofield:
Pursuant to Rule III.B.3. of Your Honor’s Individual Rules and Procedures for Civil Cases,
and in response to two evidentiary objections made by Defendants in their Reply to Plaintiffs’
Response to Their Motion for Summary Judgment (Dkt # 291), Plaintiffs respectfully request the
Court’s permission to exceed this Court’s limitations of exhibits and/or affidavits in order to
supplement the summary judgment record.
First, in their Reply, Defendants argue that many documents relied on by Plaintiffs in their
Opposition “are not in the summary judgment record and must be disregarded,” because, instead
of attaching these documents cited by Plaintiffs’ experts, Plaintiffs cite only “their expert reports’
citations to documents not in the record.” Reply at 1 n.3.1 In support of their argument, Defendants
selectively quote from In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 980 F. Supp.
2d 425, 442 (S.D.N.Y. 2013), to claim Plaintiffs’ approach is improper because an “expert’s report
may not be used as a conduit for the inadmissible hearsay.” Reply at 1 n.3. Defendants, however,
neglect to mention that the court in MTBE found the opposite: “An expert’s report may not be used
as a conduit for the inadmissible hearsay of another, but an expert may rely on hearsay sources
that she used in forming her opinion. Haberman’s report is not inadmissible hearsay, because it
reflects his own opinions.” Id. (emphasis added).
Like in MTBE, Plaintiffs’ experts here relied on the documents in question in forming their
opinions. Defendants do not argue otherwise, nor do they establish, as Rule 56 requires to disregard
record evidence, that these documents cannot be presented in a form that would be admissible at
trial. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence.”). At this stage, to refute
any questions regarding admissibility, Plaintiffs need only “explain the admissible form that is
anticipated.” See Fed. R. Civ. P. 56, Advisory Committee’s Note to 2010 amendment (emphasis
added). At trial, Plaintiffs anticipate introducing these documents into evidence via testimony from
1

To comply with this Court’s limitation of exhibits and/or affidavits, if a document produced in discovery was cited
or quoted in their expert reports, Plaintiffs cited and submitted excerpts from the reports rather than from the
documents cited.
Kahn Swick & Foti LLC ꞏ New Orleans ꞏ New York — Kahn Swick & Foti LLP ꞏ San Francisco

Case 1:17-cv-01580-LGS Document 298 Filed 10/23/20 Page 2 of 3

Hon. Lorna G. Schofield

-2-

October 22, 2020

Plaintiffs’ experts, the Individual Defendants, or other fact witnesses that Plaintiffs and Defendants
have previously identified on their respective Rule 26(a)(1) disclosures. Nevertheless, to avoid a
protracted dispute about whether these documents are technically in the summary judgment record,
Plaintiffs respectfully seek leave, out of an abundance of caution, to exceed this Court’s limitations
of exhibits and/or affidavits and to submit the excerpts of these documents cited by their experts
to supplement the summary judgment record. See Exhibit A attached hereto.2
Second, relying on Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 352
(S.D.N.Y. 2005), Defendants object, in part, to Plaintiffs’ reliance on their expert reports because
they are “unsworn.” See Reply at 2 n.7. Yet Defendants fail to point out that Berk, which was
decided in 2005, relied on a superseded version of Rule 56. In 2010, Rule 56 was amended, and
now does not require sworn declarations from experts at this stage, as long as their opinions are
capable of being presented in a form that would be admissible at trial. See Advisory Committee
Notes to Fed. R. Civ. P. 56, 2010 Amendment. Indeed, since that amendment, numerous Circuits
have held the amended Rule 56 obviates any “swearing” requirement for the admissibility of outof-court statements, including for unsworn expert reports. See Lee v. Offshore Logistical &
Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (reversing district court for finding expert report
inadmissible solely because it was unsworn); see also Fraternal Order of Police, Lodge 1 v. City
of Camden, 842 F.3d 231, 238 (3d Cir. 2016); Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015); Jones v. UPS Ground Freight, 683 F.3d 1283,
1293-94 (11th Cir. 2012); 11 Moore’s Federal Practice - Civil ¶ 56.91 (2017).3
Here, Plaintiffs experts will testify to their opinions at trial, and thus, the mere fact that
their reports are “unsworn” is of no consequence at this stage. But, to moot this objection, Plaintiffs
respectfully seek leave to submit three sworn one-page declarations from their experts (attached
hereto as Exhibit B) affirming their reports. Cf. GE Funding Capital Mkt. Servs. v. Neb. Inv. Fin.
Auth., 2017 U.S. Dist. LEXIS 104819, at *13 n.3 (S.D.N.Y. July 6, 2017) (Schofield, J.) (finding
that declarations by experts in the same form as proffered here rendered “moot” the objection
Defendants raise).
Allowing Plaintiffs to exceed the Court’s limitations of exhibits and/or affidavit and to
supplement the record would be consistent with the Second Circuit’s “strong preference” for
resolution of disputes on the merits, rather than on the basis of relevant evidence being excluded
on technical grounds, which is “generally not favored.” See Rodriguez v. Vill. Green Realty, Inc.,
788 F.3d 31, 46-47 (2d Cir. 2015) (citations omitted).
2
3

Excluding exhibit cover pages, Plaintiffs’ request would result in only 35 additional excerpted pages being submitted.

Some courts in the Second Circuit have continued to rely on the pre-amendment decision in Berk even though its
analysis is inconsistent with the 2010 amendment to Rule 56. See, e.g., Woods v. Town of Tonawanda, 2020 U.S. Dist.
LEXIS 61948, at *73 (W.D.N.Y. Apr. 8, 2020) (finding “unsworn … expert reports do not satisfy the admissibility
requirements of Rule 56(c)(4)” (citing Berk, 380 F. Supp. 2d at 352-53)); but see Selvam v. Experian Info. Sols., Inc.,
651 F. App’x 29, 32 (2d Cir. 2016) (holding the party opposing summary judgment can rely on inadmissible hearsay
as long as it can be presented in an admissible form at trial); Woods v. Tompkins Cty., 2019 U.S. Dist. LEXIS 52674,
at *2 (N.D.N.Y. Mar. 28, 2019) (noting 2010 Amendment “substantially amended” prior version of Rule 56 and
rejecting argument that “‘none of th[os]e documents’—which include, among other things, multiple affidavits, letters,
and medical records—‘are competent, as they are not sworn to by anyone.’”).

Case 1:17-cv-01580-LGS Document 298 Filed 10/23/20 Page 3 of 3

Hon. Lorna G. Schofield

-3Respectfully submitted,
/s/ Kim E. Miller
Kim E. Miller

Cc: All Counsel of Record (via ECF)

October 22, 2020