Summary Judgment Premature Before Daubert Issues Resolved

From Buzzerd v Flagship Carwash of Port St. Lucie, Inc., 2009 U.S. Dist. LEXIS 4398 (M.D. Pa. Jan. 16, 2009):

With respect to this argument, the court finds that the defendants' motion for summary judgment is premature and should be dismissed without prejudice. While a court is not required to hold a hearing on expert admissibility, a motion for summary judgment may be dismissed as premature if "made before [the trial court] has had the opportunity to hold a Daubert hearing and consider the admissibility of [plaintiffs'] proffered expert testimony." See McConaghy v. Sequa Corp., 294 F.Supp.2d 151, 168 (D.R.I. 2003)(noting that a Daubert motion in limine is the proper vehicle for challenging an expert's admissibility and denying defendant's motion for summary judgment as premature). See also Assicurazioni Generali S.P.A. v. Distribution Unlimited, Inc., 2005 WL 3531458 (N.D.N.Y. 2005)(same); Taylor v. Jersey City Medical Center, 2005 WL 3501877 (N.J. Super. Law Div. 2005)(same); Heller v. Shaw Industries, Inc., 1997 WL 535163, at *7 ("Where essential elements of plaintiffs' case depend on expert testimony, a determination of defendant's summary judgment motion must be preceded by a determination of the relevance and reliability, and hence admissibility, of the proffered expert testimony.").

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