Fifth Circuit Vacates Summary Judgment and Allows Consideration of Plaintiff’s Expert

The plaintiff allegedly sustained injuries when he fell on a vessel owned by his employer.  He filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana, alleging negligence under the Jones Act and unseaworthiness of the vessel.  The employer eventually filed a Motion for Summary Judgment and argued for dismissal of the case based on the plaintiff’s inability to meet his burden of proof with respect to causation of his injuries.  The plaintiff then filed an opposition memorandum and submitted a report by his maritime expert.  The District Court refused to consider the expert report because while it was signed, it was unsworn.  Summary judgment was granted and the case was dismissed.  The plaintiff appealed to the Fifth Circuit.

 

The Fifth Circuit noted that in granting the motion, the District Court had incorrectly relied on a prior version of Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment.  Rule 56 was amended in 2010, including a subsection outlining the means of providing documentary support or opposition to a motion for summary judgment.  In rejecting the report, the District Court had looked to the prior rule regarding sworn affidavits.  The Fifth Circuit noted that the new Rule 56 clearly allows for the consideration of “documents . . . declarations, [and] other materials” in addition to sworn affidavits.  For purposes of summary judgment, the document may be presented in a form that would not be admissible at trial.  The plaintiff could later present the same evidence at trial in an admissible form.  In other words, the fact that the expert report was not a sworn affidavit was of no consequence for purposes of the Motion for Summary Judgment.  The Fifth Circuit vacated the granting of summary judgment and remanded the case to the District Court for consideration of the expert report.

 

Lee v. Offshore Logistical and Transport, LLC

Will Bland, IV
Will Bland, IV is an associate at Mouledoux, Bland, Legrand & Brackett. His practice includes the defense of employers and insurance carriers under the Longshore and Harbor Workers’ Compensation Act, Defense Base Act, as well as the War Hazards Compensation Act. He also specializes in maritime personal injury defense, insurance coverage, and asbestos litigation. Will can be contacted at 504-595-3000 or via e-mail at wblandiv@mblb.com.
Will Bland, IV