Commercial Litigation and Arbitration

Expert Evidence Not Necessarily Sufficient to Preclude Summary Judgment — Good Quote; Statements of Undisputed Fact

Experts and Summary Judgment. The Second Circuit affirmed summary judgment for the plaintiff in Major League Baseball Props., Inc. v. Salvino, Inc., 2008 U.S. App. LEXIS 19349 (2d Cir. Sept. 12, 2008), in substantial part because the defendant’s economic expert did not conduct adequate empirical analysis to support opinions he offered in opposition to the evidence of the plaintiff’s expert. Pithy quote:

"An expert's report is not a talisman against summary judgment." [Quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).]

Statements of Undisputed Fact. Given that the pending proposals to amend Federal Rule of Civil Procedure 56 would nationalize the requirement of serving, and responding to, Statements of Undisputed Facts in conjunction with summary judgment motions, this opinion illustrates the importance of filing affidavits or declarations that satisfy Federal Rule of Evidence 803(6) (the business records exception). The principal objection of the defendant to the plaintiff’s Statement of Undisputed Facts was to object on hearsay, foundation and relevance (“not material”) grounds. (Under Federal Rule of Civil Procedure 56(e): “A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.”). The Second Circuit relied on the supporting affidavits proffered by the plaintiff with its summary judgment motion as demonstrating the admissibility of the evidence on which summary judgment was granted.

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