Opinion
CIVIL ACTION NO. 02-7099
January 9, 2004
MEMORANDUM ORDER
Presently before this Court is The Chase Defendants' Motion to Strike the Affidavit of [Plaintiff] Joseph Hussey. (Doc. No. 38.) For the following reasons, the Motion will be granted.
BACKGROUND
Plaintiff's Complaint alleges a breach of fiduciary duty under the Employment Retirement and Income Security Act, ("ERISA"), 29 U.S.C.A. § 1132(a)(3), for the Chase Defendants' alleged failure to provide Plaintiff with the requisite information to elect excess long-term disability ("LTD") benefits. (Compl. at ¶ 35.) On April 8, 2003, Plaintiff filed a Motion to Substitute, requesting that his wife, Maureen Hussey, be substituted as the Plaintiff in this matter. (Doc. No. 19.) In support of that Motion, Plaintiff submitted reports from a speech-language pathologist and Plaintiff's treating neurologist. Based on these medical evaluations, Plaintiff concluded that "due to ongoing effects of his stroke, Mr. Hussey's ability to receive, evaluate, and understand information effectively and to communicate answers to questions, to recollect, and make decisions is impaired." More specifically, the speech-language pathologist stated:
[Mr. Hussey] has difficulty responding to rapid input from unfamiliar conversation partners and is often confused by multi-step directions, lengthy information, pronoun references and temporal concepts. His yes/no reliability for answering questions also decreases when he is stressed. Mr. Hussey's expressive communication deficits parallel his receptive language states. He also fatigues quickly when he is required to concentrate and his ability to attend declines accordingly.
(Pl.'s Mem. of Law in Supp. of his Mot. to Substitute Parties Pursuant to Fed.R.Civ.P. 25(b) at unnumbered 2 (citing March 17, 2003 Report of Sharon Milner).)
Plaintiff also represented that his treating neurologist reported that "Mr. Hussey is experiencing residual expressive and receptive aphasia. This limits his ability to respond to questions and significantly has limited his ability to express himself." (Pl.'s Mem. of Law in Supp. of his Mot. to Substitute Parties Pursuant to Fed.R.Civ.P. 25(b) at unnumbered 2.) Plaintiff then concluded that "Mr. Hussey is not competent to continue to serve as a named Plaintiff to this litigation. . . . ", (Id.) and "Mr. Hussey cannot effectively understand or respond to questions in a deposition or trial format, as his physicians advise that he cannot process the questions or provide accurate answers due to the residual expressive and receptive aphasia caused by his severe stroke." (Id. at unnumbered 3.)
On May 15, 2003, we dismissed Plaintiff's Motion to Substitute, but permitted Plaintiff to "request reinstatement and hearing on this Motion by letter." (Court's Order of 5/15/03, at ¶ 6; Doc. No. 25.) On September 15, 2003, the Chase Defendants filed a Motion for Summary Judgment. (Doc. No. 26.) On September 30, 2003, Plaintiff filed his Opposition to that Motion, supported by numerous exhibits, including depositions, affidavits, and correspondences related to Plaintiff's claim. (Doc. No. 32.) One such affidavit was the affidavit of Plaintiff. Based on the medical evidence presented by Plaintiff in his Motion to Substitute, the Chase Defendants request that we strike Plaintiff's affidavit.
Plaintiff's affidavit states, among other things, that he "was assured by Chase Manhattan Mortgage Corporation that [he] had the most disability insurance coverage available" and that he "never received enrollment materials . . . in order to change or upgrade [his] employee benefits." (Affidavit of Joseph Hussey at ¶¶ 4-5.)
Our decision to strike Plaintiff's affidavit does not conflict with our decision to deny the Chase Defendants' Motion of Summary Judgment. Even without the affidavit, Plaintiff provided evidence sufficient to create genuine issues of material fact. Cf. Lundy v. Adamar of N.J., Inc., 34 F.3d 1173 (3d Cir. 1994) ("[A]ny reasonable inferences that can be drawn from the record must be viewed in the light most favorable to the party opposing the motion."); Petruzzi's IGA Supermarkets. Inc. v. Darling-Delaware Co. Inc., 998 F.2d 1224, 1230 (3d. Cir. 1993) ("[A] nonmovant plaintiff . . . does not have to submit direct evidence, i.e., the so-called smoking gun, but can rely solely on circumstantial evidence and the reasonable inferences drawn from such evidence.")
DISCUSSION
The Chase Defendants advance two basic arguments in support of their Motion to Strike. First, Chase Defendants claim that Plaintiff's affidavit fails to meet the requirements of Rule 56(e). We agree. Rule 56(e) states, in pertinent part:
Forms of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . .
FED. R. CIV. P. 56(e) (emphasis added). See also Abdullah v. Phila. Housing Auth., No. Civ.A.99-2309, 2000 WL 377796, at *4 (E.D. Pa. March 29, 2000) ("The Third Circuit has interpreted Rule 56(e) to mean that hearsay statements that are not `capable of being admissible at trial' may not be considered on a motion for summary judgment."); Lowe v. Phila, Newspapers. Inc., 594 F. Supp. 123, 126 (E.D. Pa. 1984) ("Rule 56(e) mandates that affidavits submitted in opposition to a motion for summary judgment must state that they are based upon
`personal knowledge' of the affiant. Affidavits prefaced upon `belief' or `information and belief must be stri[c]ken."); Freeman v. Minn. Mining and Mfg. Co., 675 F. Supp. 877, 887 (D. Del. 1987) (striking plaintiff's affidavit because affiant, an expert, failed to affirmatively show his expertise and was deemed incompetent to testify as to the subject matter).
The Chase Defendants emphasize that, according to Plaintiff's own representation in his Motion to Substitute, he is not competent to testify. Since Plaintiff's inability to testify was proffered by the Plaintiff himself, and was supported by Plaintiff's own medical professionals, we conclude that Plaintiff cannot meet the requirement of Rule 56(e) that he "show affirmatively that . . .[he] is competent to testify to the matters stated" in his affidavit. FED. R. CIV. P. 56(e) (emphasis added).
The Chase Defendants also point out that this situation is precisely what the rules of hearsay seek to avoid. Chase Defendants argue that "`[t]he theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination.'" (Mem. of Law in Supp. of the Chase Defs.' Mot. to Strike the Aff. of Joseph Hussey at 5 (citing JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1362 (Vol. 5 1974)). Chase Defendants argue that under the circumstances they will never be able to cross-examine Plaintiff in order to test "the trustworthiness and credibility" of his statements. (Id. at 5.) We agree. Since Plaintiff has unambiguously represented that he will be unable to withstand the rigors of testifying and being cross-examined, we conclude that it would be inappropriate to permit Plaintiff to rely upon the affidavit.
CONCLUSION
For the foregoing reasons, we will grant the Chase Defendants' Motion to Strike the Affidavit of Joseph Hussey.
An appropriate Order follows.
ORDER
AND NOW, this ___ day of January, 2004, upon consideration of The Chase Defendants' Motion to Strike the Affidavit of Joseph Hussey, (Doc. No. 38), and all documents filed in support thereof and opposition thereto, it is ORDERED that Defendants' Motion is GRANTED. This Affidavit will not be admitted into evidence nor will any part of it be considered by the Court in its disposition of this case.
IT IS SO ORDERED.