Kobe et al v. Mann et al
Filing
219
ORDER denying 146 Motion for Summary Judgment; denying 147 Motion for Summary Judgment; denying 151 Motion for Summary Judgment; denying 152 Motion for Summary Judgment; denying 155 Motion for Summary Judgment; are premat ure and are DENIED without prejudice. Order denying 173 Motion to Exclude; denying 190 Motion to Strike. However, as to the six hybrid witnesses, Plaintiffs are to provide and file the proper reports required pursuant to Rule 26(a)(2)(C) within thirty days. Thereafter, Defendants shall have forty-five days to depose these witnesses. The parties shall submit an amended scheduling order in compliance with this order by August 26 2013. Signed by Honorable Timothy M Cain on 8/12/2013.(gpre, )
Kobe et al v. Mann et al
Doc. 219
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kobe, Mark, and John,
Plaintiffs,
v.
Nikki Haley, in her capacity as
Governor and Chairman of the
South Carolina Budget and Control
Board; Daniel Cooper, Converse
Chellis and Mark Sanford, in their
capacities as former members of
the South Carolina Budget and
Control Board; Hugh Leatherman
and Richard Eckstrom, in their
capacities as members of the South
Carolina Budget and Control Board;
Curtis Loftis and Brian White, as
members of the South Carolina
Budget and Control Board, Anthony
Keck, in his capacity as the Director
of the South Carolina Department
of Health and Human Services,
Emma Forkner, in her capacity as
the former Director of the South
Carolina Department of Health
and Human Services, Beverly
Buscemi in her capacity as Director
of the South Carolina Department
of Disabilities and Special Needs,
Eugene A. Laurent, former Interim
Director of the South Carolina
Department of Disabilities and
Special Needs; Stanley Butkus,
former Director of the South Carolina
Department of Disabilities and
Special Needs; Richard Huntress,
in his capacity as Commissioner
of the South Carolina Department
of Disabilities and Special Needs;
Kathi Lacy, Thomas P. Waring and
Jacob Chorey, in their capacities
as employees of the South Carolina
Department of Disabilities and
Special Needs, Mary Leitner, in
her capacity as the Director of the
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C/A No. 3:11–1146-TMC
OPINION & ORDER
Dockets.Justia.com
Richland Lexington Disabilities and
Special Needs Board; the Babcock
Center, Judy Johnson, in her capacity
as the Director of the Babcock Center
and other Unnamed Actors Associated
with the Babcock
Center,
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Defendants.
________________________________
In their Amended Complaint, Plaintiffs seek actual and punitive damages, and
declaratory and injunctive relief for violations of Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of 1973 (“Section 504"); the
Medicaid Act; and 42 U.S.C. §§ 1983 and 1985. (ECF No. 65 - Am. Compl. at 3). This matter
is before the court on several summary judgment motions (ECF Nos. 146, 147, 151, 152, and
155), Defendants’ Joint Motion to Exclude Witnesses and Strike Exhibits to Plaintiffs’ Motion
for Summary Judgment (ECF No. 173), and Defendants’ Joint Motion to Strike Certain Exhibits
to Plaintiff’s Memoranda in Opposition to Defendants’ Summary Judgement Motions (ECF No.
190).
The court denies Defendants’ Joint Motions to Exclude Witnesses and Strike Exhibits
(ECF Nos. 173 and 190) and the pending summary judgment motions (ECF Nos. 146, 147, 151,
152, and 155) are denied without prejudice.
Discussion
On December 28, 2012, Plaintiffs filed a partial summary judgment motion and attached
thirty-six exhibits. (ECF No. 155). In their motions to strike exhibits and exclude witnesses,
Defendants seek to exclude certain witnesses and strike thirty-one of these exhibits on the
ground that Plaintiffs failed to disclose certain fact and expert witnesses and produce documents
in their discovery responses.1 Additionally, Defendants seek to exclude the unsworn statement
1
Defendants additionally seek to have stricken an exhibit to Plaintiff’s Memorandum
Opposing Defendants DDSN Summary Judgment Motion (ECF No. 181-3) on the same
2
of Plaintiff Kobe, which Plaintiffs attached as an exhibit to Plaintiffs’ Memoranda in Opposition
to Defendants’ Summary Judgment Motions. (ECF Nos. 179-2, 180-2, and 181-2).
1. Motion to Strike Exhibits (ECF No. 173)
a) Exhibits tied to alleged expert witnesses
Pursuant to the Amended Scheduling Order and a subsequent extension (ECF Nos. 133
and 139), by October 12, 2012, Plaintiffs were to “file and serve a document identifying by full
name, address, and telephone number each person whom Plaintiff(s) expects to call as an expert
at trial and certifying that a written report prepared and signed by the expert including all
information” as required by Fed.R.Civ.P. 26(a)(2).
Plaintiffs were also “to file and serve
affidavits of records custodian witnesses proposed to be presented by affidavit at trial no later
than November 16, 2012.” (ECF No. 133). Plaintiffs did not identify any expert witnesses or
file and serve any affidavits of records custodian witnesses by the appropriate deadlines.
Plaintiffs identified sixty fact witnesses, including six witnesses Defendants contend should have
been designated as expert witnesses pursuant to Fed.R.Civ.P. 26(a)(2).
Rule 26(a)(2)(B) provides that an expert witness must be identified and provide a written
report if he or she “is one retained or specially employed to provide expert testimony in the case
or one whose duties as the party's employee regularly involve giving expert testimony.”
Fed.R.Civ.P. 26(a)(2)(B). In 2010, Rule 26 was amended to add subsection (C), which states:
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated
or ordered by the court, if the witness is not required to provide a written report,
this disclosure must state:
(I) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
grounds. (ECF No. 190 at 2). This exhibit contains the records of the Office of the State Long
Term Care Ombudsman Program relating to one of the Plaintiffs, which includes reports
prepared by Carol Niederhauser and Tonya Bradford. (ECF No. 181-3). As to this specific
exhibit, Defendants incorporated their arguments from their Motion to Exclude. (ECF No. 173).
3
(ii) a summary of the facts and opinions to which the witness is
expected to testify.
Fed.R.Civ.P. 26(a)(2)(C). According to the Advisory Committee Notes, this amendment was
enacted to “resolve[ ] a tension that has sometimes prompted courts to require reports under Rule
26(a)(2)(B) even from witnesses exempted from the report requirement.” Fed.R.Civ.P. 26
advisory committee's notes. “Frequent examples include physicians or other health care
professionals and employees of a party who do not regularly provide expert testimony.” Id.
The six witnesses Defendants contend should have been identified as expert witnesses
are: Heather Gardner, June Maranville, Sarah Scarborough, Dr. Johan Hernandez, Sandra Ray,
and Lee Mole. In their Responses to Defendant Buscemi’s First Set of Interrogatories, Plaintiffs
listed these witnesses as fact witnesses and provided the following summaries:
1) Heather Gardner “will testify about Kobe’s condition and his need for an adaptive
communications device, her qualifications as a speech pathologist and the requirements for
determination of the medical necessity of a synthesized speech device.” (ECF No. 173-4 at 3).
2) June Maranville, a speech pathologist, “is expected to testify about Kobe’s need for a
speech device.” (ECF No. 173-4 at 3).
3)
Sarah Scarborough “is expected to testify about the speech evaluation of Kobe
conducted in 2002 and his inability to effectively utilize the less sophisticated device provided
due to physical limitations.” (ECF No. 173-4 at 21).
4) Dr. Johan Hernandez
is expected to testify about medical treatment provided to Kobe and report of
seizures after falling from van in wheelchair and hitting his head. He is also
expected to testify about Kobe’s need for adult day health care services and other
matters related to his condition. He is also expected to testify about one or more
other individuals who have been injured in Babcock Center residential or day
programs.
(ECF No. 173-4 at 22).
5) Sandra Ray
4
is expected to testify about matters related to risk management and the barriers to
competition inherent in DDSN’s prospective payment system to the Babcock
Center and local DSN boards. She is expected to testify about matters related to
the LAC audit of SCDDSN and retaliation against persons who criticize DDSN.
She is expected to testify about medical necessity and service coordination in
South Carolina. Ms. Ray is expected to testify about the need for adaptive speech
devices and to provide services in the least restrictive to comply with the ADA
and Section 504. Ms. Ray is expected to testify about risk management as it
relates to decubitus ulcers.
(ECF No. 173-4 at 4).
6) Lee Mole “is expected to testify about Kobe’s condition and his need for a speech
device and new wheelchair. He is also expected to testify about the least restrictive setting that
would allow Kobe to interact more frequently with non-disabled persons.” (ECF No. 173-4 at 78).
Defendants contend that these witnesses are to testify as to medical observations,
diagnoses, and treatments, as well as legal opinions as to compliance with federal regulations. In
response, Plaintiffs contends these witnesses were not retained or specifically employed to
provide expert testimony, and therefore are not required to provide expert reports pursuant to
Rule 26(a)(2)(B).
However, Plaintiffs’ argument that these witnesses were not retained or
employed to give expert testimony is not determinative of whether disclosure and reports are
required under Rule 26.
A fact witness is a witness whose testimony is in the form of an opinion and must be:
“(a) rationally based on the witness's perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701.2
2
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
5
As noted above, the Advisory Committee Notes to Rule 26 (a)(2)(C) state that it
“include[s] physicians or other health care professionals and employees of a party who do not
regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A)
and provide the disclosure required under Rule 26(a)(2)(C).” After the 2010 Amendments,
courts have continued to “adhere to traditional tests for determining when a Treating Physician is
considered to be a full-blown expert and when he is considered to be more akin to a percipient
witness with professional expertise.” Kondragunta v. Ace Doran Hauling & Rigging Co., No.
1:11–cv–01094–JEC, 2013 WL 1189493, at *10 (N.D. Ga. Mar.21, 2013). In Kondragunta, the
court engaged in an in-depth analysis of post-amendment case law and held:
[I]f a physician's opinion regarding causation or any other matter was formed and
based on observations made during the course of treatment, then no Subsection B
report is required, albeit the Subsection C report discussed above will be required.
If, however, the physician's opinion was based on facts gathered outside the
course of treatment, or if the physician's testimony will involve the use of
hypotheticals, then a full subsection B report will be required.
Id. at * 12 (internal citations omitted). See Thomas v. Consolidated Rail Corp., 169 F.R.D. 1, 2
(D. Mass. 1996) (“Many courts, however, have recognized the unfairness of permitting a party to
employ a physician who treated an injured party to provide testimony beyond simply the care of
the plaintiff to classic expert opinion regarding causation and prognosis.”); Brown v. Best Foods,
169 F.R.D. 385, 388 (N.D. Ala.1996) (“To the extent the treating physician testifies only as to
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed.R.Evid. 702. Rule 703 provides, in pertinet part: “An expert may base an opinion on facts
or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid.
703.
6
care and treatment of his/her patient, the physician is not considered a specially retained expert
[for whom Rule 26(a)(2)(B) disclosures are required].”).
Applying the traditional test, the court finds that these six witnesses do not appear to be
experts requiring a Rule 26(a)(2)(B) written report. In reviewing the summaries of these
witnesses’ anticipated testimony, the court notes that these witnesses are not testifying only as to
their care and treatment of Plaintiffs; they are also providing what appears to be some expert
testimony under Rules 702 and 703. Therefore, the court concludes that these witnesses are
“hybrid witnesses.” See, e.g., Wake v. Nat’l R.&R. Passenger Corp., 2013 WL 1316431 (D. Md.
2013). “To the extent that a witness's opinion is based on facts learned or observations made ‘in
the normal course of duty,’ the witness is a hybrid witness (i.e., a hybrid of an expert and a fact
witness) and need not submit an expert report” under Rule 26(a)(2)(B). Vigilant Ins. Co. V.
McKenney’s, Inc., 2011 WL 2415004, * 4 (D.S.C. 2011). However, hybrid witnesses are subject
to Rule 26(a)(2)(C) requirements and “must submit a report regarding any opinions formed
specifically in anticipation of the litigation, or otherwise outside the normal course of a duty.”
Id. Therefore, these witnesses must be identified as such witnesses under Rule 26(a)(2)(A), and
provide the disclosure required under Rule 26(a)(2)(C). 3
Complying with Rule 26 is “ ‘not merely an aspiration’ as ‘the expert witness discovery
rules are designed to allow both sides in a case to prepare their cases adequately and to prevent
surprise.’” Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07 -cv-222-Orl-35KRS,
2009 WL 1043974, at *3 (M.D. Fla. Apr.17, 2009) (quoting Reese v. Herbert, 527 F.3d 1253,
1266 (11th Cir. 2008)). Generally, “[i]f a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
3
The disclosures required by Rule 26(a)(2) (C) for expert witnesses not filing reports
include “the subject matter on which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C).
7
supply evidence on a motion, at a hearing, or at trial.” Fed.R.Civ.P. 37(c).4 Despite a failure to
disclose the identity of a witness, a party may “[e]scape from the [Rule 37] sanction” if it shows
“that the failure to disclose is substantially justified or harmless.” Fed.R.Civ.P. 37(c)(1). In
determining whether nondisclosure of a witness is substantially justified or harmless, courts
should consider:
(1) the surprise to the party against whom the witness was to have testified; (2)
the ability of the party to cure that surprise; (3) the extent to which allowing the
testimony would disrupt the trial; (4) the importance of the evidence; and (5) the
nondisclosing party’s explanation for its failure to disclose the evidence.
Southern States Rack & Fixture v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)).
Here, these factors weigh against excluding these witnesses. While Plaintiffs did not
identify or file the required disclosures, Defendants were aware of these six witnesses and the
Plaintiffs can cure their failure to comply with Rule 26(a)(2)(C). Further, in regard to the second
factor, as no trial date has been set, it is not at such a late date that it would be impossible to
cure any prejudice before trial. See, e .g., Richardson v. Korson, No. 10–2049, 2012 WL
5907379, at *7 (D.D.C. Nov. 27, 2012) (“Where there is sufficient time to provide the prejudiced
party with an opportunity to cure the prejudice of the untimely report, a court may permit
submission of the report.”). In regard to the third factor, the evidence is clearly very important
to Plaintiffs’ case. As to the last factor, Plaintiffs clearly misunderstand the requirements of
Rule 26(a)(2)(C), and while such a misinterpretation does not excuse the nondisclosure, it is a
reasonable explanation.5 Further, the court notes again that these witnesses were disclosed -
4
Additionally, “the court may issue any just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or other pretrial
order.” Fed.R.Civ.P. 16(f)(1).
5
Some court have held that “counsel's misinterpretation of the rule's requirements does
not substantially justify Plaintiff's failure to comply.” Anderson v. Bristol, Inc., 2013 WL
1339372, *15 (S.D. Iowa 2013)(noting the amendment had taken effect a year and a half before
Plaintiff filed expert disclosures and by that time there were a number of court decisions on the
amendment). Here, the amendment had been in effect for almost two years by the time Plaintiffs
8
albeit only as fact witnesses.
Most courts in similar situations have permitted the non-compliant party an opportunity
to provide the required report and the moving party an opportunity to depose the witness. See
Kondragunta .v Ace Doran Hauling & Rigging Co., 2013 WL 1189493, *8
(N.D. Ga.
2013)(citing cases). Accordingly, as to the six individuals listed above, Plaintiffs are to provide
and file the proper reports required pursuant to Rule 26(a)(2)(C) within thirty days. Plaintiffs are
required to summarize the facts to which the witnesses are expected to testify.6 Thereafter,
Defendants will have forty-five days to depose these witnesses. If Plaintiffs fail to cure this
deficiency, Plaintiffs will not be allowed to use these six witnesses “to supply evidence on a
motion, at a hearing, or at a trial.”
Furthermore, the court reiterates that based upon the summaries of these six witnesses’
testimony provided to Defendants and the arguments presented on this motion, the court has
concluded these witnesses are hybrid witnesses, and, therefore, these treating medical providers
may only base their opinions on information learned during the actual treatment of Plaintiffs.
See Ace American Ins. Co. v. McDonald's Corp., 2012 WL 2523883, *5 n.1 (D. Md.
2012)(unreported). If Plaintiffs intend to use any medical provider’s opinion which is based on
facts gathered outside the course of treatment or involves the use of hypotheticals, a full Rule 26
(a)(2)(B) report will be required whether the experts are paid or not. See Kondragunta, 2013
filed their disclosures on November 25, 2012.
6
Plaintiffs’ argument that Defendants had access to Plaintiffs’ medical records and could
simply review the records (ECF No. 194 at 2, 5-6, 10, 14) is not sufficient to comply with Rule
26(a)(2)(C)’s requirements. Flonnes v. Prop. & Cas. Ins. Co. of Hartford, 2013 WL 2285224
(D. Nev. 2013) (holding that simply producing medical records is not sufficient to satisfy the
requirements of Rule 26(a)(2)(C)); Kondragunta, 2013 WL 1189493 (“The reader of plaintiff's
disclosure has no idea what opinion the doctor will offer or on what facts the doctor will base
that opinion. Further, the fact that plaintiff provided all his medical records to the defendants
does not mean that plaintiff has fulfilled the ‘summary of the facts and opinions’ prong of Rule
26(a)(2)(C).”).
9
WL 1189493, * 12.7
In light of this ruling reopening discovery on a limited basis, the pending motions for
summary judgement (ECF Nos. 146, 147, 151, 152, and 155) are premature and are denied
without prejudice. The parties shall submit an amended scheduling order in compliance with
this order.
b. Other exhibits
Attached to their memorandum in support of their summary judgment motion, Plaintiffs
filed thirty-six exhibits. (ECF No. 155). Defendants seek to exclude all of the exhibits, except
Exhibits 9, 32, 34, 35, and 36, based upon Plaintiffs’ failure to identify witnesses whose
statements are contained in these exhibits and Plaintiffs’ failure to produce these documents.
Plaintiffs respond that all of their exhibits are hearsay exceptions.
Although the pending
summary judgment motions are denied without prejudice mooting this motion, the court
addresses some of the parties’ arguments in order to provide some direction to the parties.
The parties have briefed two entirely different issues. Defendants contend that Plaintiffs’
exhibits are inadmissible because the individuals who created the information were not identified
as witnesses and the documents were not produced in response to Defendants’ Request for
Production of Documents. (ECF Nos. 173 at 4; 199 at 4). Plaintiffs do not directly respond to
7
In response to one of the pending summary judgment motions, Plaintiffs state that their
“decision to rely upon the fact witnesses identified in their interrogatories (many of whom are
experts in their fields), rather than paying large sums to experts who have no independent
knowledge of the needs of the Plaintiffs in the complaint does not warrant dismissal under Rule
41(b).” (ECF No. 158 at 5). The court is concerned that some of the testimony from these six
witnesses may involve expert testimony. For example, Plaintiffs stated: Ray “is expected to
testify about the need for adaptive speech devices and to provide services in the least restrictive
to comply with the ADA and Section 504. Ms. Ray is expected to testify about risk management
as it relates to decubitus ulcers.” (ECF No. 173-4 at 4). If Plaintiffs intend to use Ray to testify
about her opinion, which is based upon facts gathered outside the course of Plaintiffs’ treatment,
she would be considered an expert witness and Plaintiffs must comply with Rule 26 (a)(2)(B).
10
this argument and instead relay how the exhibits are admissible.8 Even were the court to find
Plaintiffs complied with Rule 26 or that the failure of Plaintiffs to comply with Fed.R.Civ.P.
26(a) was substantially justified or harmless, Plaintiffs’ arguments regarding the admissibility of
some of the exhibits are insufficient.
A party is precluded from using depositions, declarations, or documents in support of
their Summary Judgment Motion and in Opposition to Defendants’ Motions for Summary
Judgment that were not properly disclosed or identified in discovery or that do not conform with
the requirements of Fed.R.Civ.P. 56(c) to defeat summary judgment. Bailey v. Fairfax County,
2011 WL 3793329 (E.D. Va. 2011). Moreover, Rule 56(c)(1) mandates that a party asserting
that a fact is genuinely disputed must support that assertion by “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.” Fed.R.Civ.P. 56(c).
Until recently, unauthenticated documents were precluded from consideration at the
summary judgment stage. See, e.g., Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (unsworn,
unauthenticated documents cannot be considered on a motion for summary judgment).
However, the 2010 amendments to Rule 56(c)(2), “‘eliminated the unequivocal requirement that
documents submitted in support of a summary judgment motion must be authenticated.’” Brown
v. Siemens Healthcare Diagnostics, Inc., 2012 WL 3136457, at *6 (D. Md. July 31, 2012)
(quoting Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C. 2012)). Instead of a clear brightline rule that all documents must be authenticated at the summary judgment stage, Rule 56(c)(2)
8
Plaintiffs seems to argue that these documents fall outside the scope of Rule 26 because
the documents were not in their possession, custody, or control. (ECF No. 199 at 5)(“nearly all
of these records come from Defendants’ own files.”). In reply, Defendants do not address this
argument, but rather concentrate on whether these documents should be excluded because they
were created by individuals not disclosed as witnesses. (ECF No. 199).
11
now prescribes 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.” Foreword Magazine, Inc. v. OverDrive,
Inc., No. 10–cv–1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011). Importantly, “the
objection [now] contemplated by the amended Rule is not that the material ‘has not’ been
submitted in admissible form, but that it ‘cannot’ be.” Ridgell v. Astrue, No. DKC 10–3280,
2012 WL 707008, at *9 (D. Md. Mar. 2, 2012) (quoting Foreword Magazine, 2011 WL
5169384, at *2).
If an objection is made to an exhibit, the proponent of the exhibit has two options.
One possibility is to correct the problem leading to the objection. . . . In the
alternative, the proponent can explain how the contents of the exhibit will be
submitted at trial so that the information is admissible.
Mitchell, 2012 WL 310824, at *3.
In arguing that the exhibits are admissible, Plaintiffs contend that the exhibits are
admissible as hearsay exceptions.
For example, Plaintiffs state that some of the exhibits
(Exhibits 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17) are medical records regularly kept
in the ordinary course of business, and therefore admissible under Fed.R.Evid 803 (4) and (6).
(ECF No. 194 at 17).9 However, Plaintiffs’ mere assertion that the records are regularly kept in
the ordinary course of business would not render the documents admissible at trial. Plaintiffs
fail to assert that each of the conditions of Rule 803(6) is met and fail to state which of their
witnesses would certify or testify to the conditions. See Fed.R.Evid. 803(6). Further, as to some
of Plaintiffs’ exhibits (Exhibits 18, 19, and 20), there is nothing to demonstrate that the writings
are what they claim to be nor has a proper witness been identified who might testify as to these
documents. See Fed.R.Evid. 901. Moreover, these documents are not self-authenticating. See
9
Plaintiffs also contend Exhibits 29 and 30 are business records, but again has not stated
though which of her witness these exhibits would be admitted.
12
Fed.R.Evid. 902.
Plaintiffs contend that Exhibit 8 qualifies as a “learned treatise.” (ECF No. 194 at 18).
However, such evidence is admissible only if “the statement is called to the attention of an
expert witness on cross-examination or relied on by the expert on direct examination” and the
publication is established as a reliable authority by the expert’s admission or testimony, by
another expert’s testimony, or by judicial notice.” Fed.R.Evid. 803(18). Simply, saying it is a
learned treatise does not establish how it is admissible. Moreover, Plaintiffs have not identified
any expert witnesses through which this treatise could be admitted. See Mugavero v. Arms
Acres, Inc., 2009 WL 1904548, *7 (S.D.N.Y. 2009)(holding “Rule 803(18) contemplates the
admission of statements in treatises only through the testimony of an expert witness.”). Further,
the court notes that such a treatise “may be read into evidence but not received as an exhibit.”
Fed.R.Evid. 803(18).
Exhibits 18, 24, 25, 26, and 27 “contain emails sent to, copied to or received from
counsel for Defendants’ attorneys. (ECF No. 194 at18). Plaintiffs contend these emails are
admissible under Fed. R.Evid. 801(d)(2)(D) “because they were made by Defendants’ agents or
employees on matters within the scope of that relationship.” (ECF No. 194 at 18-19). However,
reviewing these emails, it appears they were sent during negotiations about the claims involved
in this action and would not be admissible pursuant to Fed.R.Evid. 408.
2. Motion to Strike Plaintiff’s Unsworn Statement (ECF No. 190)
Defendants also filed a motion to Strike Plaintiff’s Unsworn Statement. (ECF No. 190).
Although the pending summary judgment motions are denied without prejudice mooting this
motion, the court also briefly addresses this motion to provide some direction to the parties.
As noted above, Plaintiffs attached a statement from Plaintiff Kobe as an exhibit to their
Memoranda in Opposition to Defendants’ Summary Judgment Motions. (ECF Nos. 179-2, 1802, and 181-2). The statement consists of thirty-one paragraphs and concludes with the date and
13
Kobe’s signature. (ECF No. 179-2 at 4, 180-2 at 4, and 181-2 at 4). The statement also contains
Laura M. Cole’s signature under a declaration that she “went to the home of Kobe and
personally witnessed him putting his mark on this statement.” Id. Additionally, Plaintiffs’
attorney, Patricia L. Harrison, signed the statement in what appears to be her capacity as a notary
public under the following statement:
I met with Kobe today and reviewed this statement with him and a staff member.
Although he has trouble communicating, staff had helped him make a statement
and he indicated that it is true. Laura M. Cole personally delivered this statement
to Kobe and swore before me that she witnessed him sign it.
Id.
Defendants contends that Plaintiff Kobe’s declaration should be stricken as it is not a
properly notarized affidavit nor does it not comply with § 1746. In response, Plaintiffs argues
that Defendants are on a quest to derail their lawsuit with “technical nitpicking.” (ECF No. 201 Pls.’ Response to Mot. to Strike at 2). Plaintiffs also attached a second notarized statement
signed by Plaintiff Kobe in an effort to cure any defects with the original statement. (ECF No.
201- 1).
The amended statement begins with, “Now comes Kobe, who swears and affirms under
penalty of perjury that: . . .” (ECF No. 201-1 at 1). And ends with the following sentence: “I
have reviewed this statement and it is true to the best of my knowledge and information and I
understand that there are penalties for providing false information to the court.” Id. at 3.
Further, John N. Harrison, presumably a notary, signed the statement as it having been sworn to
him on February 19, 2013.10 Id.
10
There is no notation as to John Harrison’s title or the expiration of his commission.
S.C. Code Ann. § 26-1-60 provides, in pertinent part that:
Each notary public shall have a seal of office, which shall be affixed to his
instruments of publications and to his protestations. He shall indicate below his
signature the date of expiration of his commission. But the absence of such seal or
date prior to and after May 30, 1968 shall not render his acts invalid if his official
14
In regard to summary judgment motions, the court can consider “pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if any,” that a
reasonable jury would be unable to reach a verdict for the non-moving party. See Celotex Corp.
v. Catrett, 477 U.S. 317 (1986).
An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c)(4). Pursuant to 28 U.S.C. § 1746:
Wherever, under any law of the United States or under any rule, regulation, order,
or requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the person
making the same (other than a deposition, or an oath of office, or an oath required
to be taken before a specified official other than a notary public), such matter
may, with like force and effect, be supported, evidenced, established, or proved
by the unsworn declaration, certificate, verification, or statement, in writing of
such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
...
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date).
(Signature)”.
28 U.S.C. § 1746.
Kobe’s revised affidavit substantially complies with the requirements of § 1746. See
Smith v. Psychiatric Solutions, Inc., 2009 WL 903624, at *5 (N.D.Fla. Mar. 31, 2009) (stating
that the language, “true and accurate to the best of my knowledge and belief,” complies with §
1746, “[s]o long as the declaration contains the phrase ‘under penalty of perjury’ and states that
title be affixed thereto.
(emphasis added). Without Harrison’s official title, the court questions whether the notarization
is valid. However, in light of the court’s determination that the affidavit substantially complies
with §1746, this issue need not be addressed.
15
the document is true”). As the amended affidavit substantially complies with § 1746, the court
does not see any basis for striking it.11
Conclusion
Based on the foregoing, Defendants’ Motions to Strike (ECF Nos. 173 and 190) are
DENIED. However, as to the six hybrid witnesses, Plaintiffs are to provide and file the proper
reports required pursuant to Rule 26(a)(2)(C) within thirty days. Thereafter, Defendants shall
have forty-five days to depose these witnesses. Based on this ruling, the pending Motions for
Summary Judgment (ECF Nos. 146, 147, 151, 152, and 155) are premature and are DENIED
without prejudice. The parties shall submit an amended scheduling order in compliance with
this order by August 26 2013.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
August 12, 2013
11
However, the court stresses that “[a]dherence to rules is not an optional exercise in
nitpickiness. Rules help cases proceed in an orderly fashion and ensure procedural fairness.”
United States Commodity Futures Trading Com'n v. Lake Shore Asset Management Ltd., 540
F.Supp.2d 994 , 1016-17 (N.D. Ill. 2008).
16
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