Court’s Reliance on Unsworn Expert Reports in Granting Summary Judgment Requires Reversal — Objection in Opposition Brief Suffices

From Sigler v. Am. Honda Motor Co., 2008 U.S. App. LEXIS 14479 (6th Cir. July 8, 2008):

Sigler argues that the district court improperly relied upon three expert reports that Honda attached to its Motion for Summary Judgment. *** The district court's opinion contained substantial discussion of these reports and clearly relied on them. *** All three reports, however, were not sworn statements, and Sigler argues that, under Federal Rule of Civil Procedure 56, the district court should not have considered them. See also Pack v. Damon Corp., 434 F.3d 810, 815 (6th Cir. 2006) ("Although the district court relied on both the Bukowski Report and the Quillen Affidavit, the Bukowski Report is unsworn and thus is hearsay, which may not be considered on a motion for summary judgment.").

***Sigler repeatedly objected in the district court to these three expert reports. ***Even construing Honda's argument as contending that Sigler forfeited her evidentiary objections because she failed to object to the hearsay evidence by filing a motion in limine, as opposed to simply raising an objection in her motion in opposition to summary judgment, Honda's argument fails. As Sigler argues in her Reply Brief, "to the extent that [Honda] implies in its argument that [Sigler's] hearsay objections were not raised by proper procedure" that argument lacks merit because Honda has not pointed to any authority setting forth the manner in which a party must object to hearsay evidence. *** In arguing that Sigler has forfeited her evidentiary claim by failing to object in the district court, Honda quotes at length from an opinion from the Northern District of Ohio, but that opinion's language does not indicate that any particular procedure is required for objecting. See Gault v. Zellerbach, 981 F. Supp. 533, 536 (N.D. Ohio 1997) ("The burden is on the opposing party to object to the improper evidence; failure to object constitutes a waiver."). Furthermore, our sister circuits have held that objecting in summary judgment papers to such improper evidence suffices to preserve the issue on appeal. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("Fraser would have us conclude that the Bank waived its hearsay objection to the diary. However, the Bank's objection was clear, specific, and timely made to the district court in its reply motion for summary judgment. The Bank's evidentiary objection was preserved."); Taylor v. Principi, 141 F. App'x 705, 708 (10th Cir. 2005) (unpublished) ("In his motion for summary judgment, defendant timely objected to Ms. Taylor's failure to properly authenticate the documents in her affidavit.").

Summary judgment reversed on this and other grounds.

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