dictum, construing Louisiana law to the effect that “[i]n inadequate warning cases misuse means that the seller had no duty to warn against unforeseeable uses of its products, while in design cases misuse means that the manufacturer had no duty to design a product so as to prevent injuries arising from unforeseeable uses of that product”
How later courts described this case
- dictum, construing Louisiana law to the effect that “[i]n inadequate warning cases misuse means that the seller had no duty to warn against unforeseeable uses of its products, while in design cases misuse means that the manufacturer had no duty to design a product so as to prevent injuries arising from unforeseeable uses of that product”
- court affirms district court’s refusal to consider affidavit submitted at oral argument on motion for summary judgment because it runs afoul of Fed.R.Civ.P. 56(c) as well as “the trial court’s inherent power to control the proceedings before it.”
- report which provided no evidence that could have been adduced at trial was inadmissible on a motion for summary judgment
- unsworn expert report does not satisfy evidentiary requirements of Fed.R.Civ.P. 56(c) and should not be considered in ruling on summary judgment motion
Written by the judges who cited it.
The opinion
THORNBERRY, Circuit Judge,
specially concurring:
Although I am in complete agreement with a reversal on the ground that summary judgment was improper, I have trouble with footnote 5 of Judge Gee’s opinion, which intimates that the trial court’s refusal to consider the Reineke Report and Captain Menard’s affidavit was correct. Certainly this language is unnecessary to our disposition of this case.
The fact that the Reineke Reports was unsworn hardly seems to be an insurmountable problem. If the trial court was seriously concerned with determining if evidence did exist, it had the capability to “test this out” by requesting that the appellant submit a supplemental affidavit — simply the same report, this time sworn. Rule 56(e), Fed.R.Civ.Proc. Such procedure is consistent with the purpose of summary judgment: to inquire and determine whether competent evidence exists. See C. Wright, Law of Federal Courts § 99, at 492 (3d ed. 1976).
Likewise, the rejection of Captain Menard’s affidavit, submitted in proper form but on the day of the hearing, was perhaps not an abuse of discretion. Again, however, it seems the trial court seized upon an available technicality to exclude sound evidence, in contravention of the truism that courts should grant opponents all benefits of doubt in summary judgment proceedings. I cannot improve on the words of the eminent Judge Hutcheson, who remarked:
It is quite clear that technical rulings have no place in this [summary judgment] procedure and particularly that exclusionary rules will not be applied to strike, on grounds of formal defects in the proffer, evidence proffered on tendered issues.
Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940).