Reed v. Ford Motor Co.

• Citation: 679 F. Supp. 873
• Decision Date: 05 February 1988
• Docket Number: No. IP 86-134-C.,IP 86-134-C.
• Parties: Carl REED, Plaintiff, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Indiana

679 F. Supp. 873

Carl REED, Plaintiff, v. FORD MOTOR COMPANY, Defendant.

No. IP 86-134-C.

United States District Court, S.D. Indiana, Indianapolis Division.

February 5, 1988.

Mark C. Ladendorf, Townsend Yosha & Cline, Indianapolis, Ind., David L. Perry, Elaine W. Stone, David L. Perry & Associates, Corpus Christi, Tex., for plaintiff.

Wayne C. Kreuscher, Kenneth H. Inskeep, Barnes & Thornburg, Indianapolis, Ind., for defendant.

ENTRY

BARKER, District Judge.

This matter is before the court on the defendant Ford Motor Company's ("Ford") motion for partial summary judgment, filed November 30, 1987. The plaintiff Carl Reed filed his brief in opposition to the motion on December 30, 1987, and Ford replied on January 12, 1988. The plaintiff and the defendant supplemented their briefs on January 12, 1988, and January 22, 1988, respectively. On January 12, 1988, Ford also filed a motion to strike affidavits and appendices submitted by the plaintiff in opposition to Ford's motion for partial summary judgment. The court reviewed that motion prior to its final consideration of the issues presented by the summary judgment motion and will therefore present its discussion and rulings in that order.

MEMORANDUM

I. Motion to Strike

In response to Ford's motion for summary judgment on the plaintiff's punitive damages claim, the plaintiff submitted several affidavits, numerous documents, and excerpts of various depositions. Included among those submissions are the affidavits of Melvin Richardson, Harley Copp, and Lynn Bradford, all expected to be expert witnesses for Mr. Reed, and of David Perry, Mr. Reed's lead counsel. Numerous documents are appended to the affidavits.

Ford requests that the court strike these submissions for purposes of ruling on its motion for summary judgment. Although Ford has supplied a sentence-by-sentence critique on the admissibility of the affidavits, several general objections can be distilled and addressed. First, Ford disputes the propriety of the plaintiff's attorney testifying in any manner in this case. Second, Ford argues that many of the statements contained in the experts' affidavits are merely conclusory, speculative, and argumentative, and should be striken because they are not based on personal knowledge. Third, Ford maintains that certain statements should be striken because they are inconsistent with the affiants' deposition testimony. Finally, Ford asserts objections to various statements and documents on grounds of irrelevance, unfair prejudice, hearsay, and failure to authenticate.

The defendant's motion to strike is premised primarily on rule 56(e)'s requirement that "opposing affidavits shall be made on personal knowledge and shall set forth facts as would be admissible in evidence." Its reading of this requirement is, however, entirely too restrictive and is inconsistent with the court's task at the summary judgment stage. Rule 56(e), it has often been said, "is an enlarging provision as to what may be considered, not a restriction." Yong Hong Keung v. Dulles, 127 F.Supp. 252 (D.Mass.1954) (quoted in 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2721 (2d ed. 1983)). Furthermore, the rule does not require an unequivocal conclusion that the evidence will be admissible at trial as a condition precedent to its consideration on a summary judgment motion, nor need the evidence be judged on the same basis as evidence offered at trial. See, e.g., Corley v. Life and Casualty Insurance Company of Tennessee, 296 F.2d 449 (D.C.Cir.1961); Securities and Exchange Commission v. American Commodity Exchange, Inc., 546 F.2d 1361 (10th Cir.1976).

For these reasons, the court will not exclude evidence at this stage on grounds of hearsay, irrelevance, or undue prejudice. The court must make those types of determinations at trial because "admissibility of testimony sometimes depends upon the form in which it is offered, the background which is laid for it, and perhaps on other factors as well." Corley, 296 F.2d at 450. The court will also not exclude the plaintiff's proffered documents for alleged insufficiencies in authentication, as the parties, subsequent to Ford's motion, filed stipulations which apparently encompass many of these documents¹ and because plaintiff's counsel has represented that he was led by Ford to believe that it would stipulate to the authenticity of the documents. In the event that Ford still challenges certain documents on this basis, the plaintiff should have the opportunity at trial to authenticate the documents.

The court also will not strike the affidavits of the plaintiff's experts for their purported failure to include testimony regarding facts based on personal knowledge. Rule 56(e)'s "personal knowledge" requirement should not be interpreted to exclude expert testimony, as such testimony is often relevant to the issues raised on a summary judgment motion, just as it is often relevant and admissible at trial. See Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir.1986). Ford, in support of its motion for summary judgment, has proffered the testimony of two of its employees, persons who themselves would probably qualify as experts. They have testified as to the investigative and remedial efforts of Ford in responding to reports of park to reverse incidents. That testimony, Ford maintains, shows that Ford's actions reflected a reasonable, good faith response to the alleged problem. A plaintiff, in attempting to oppose testimony of this type, rarely has an eyewitness to refute such contentions. Rather, the plaintiff may need, and should be entitled, to present expert opinion on what reasonable, good faith investigative and remedial efforts in the industry generally entail. For these reasons, the court denies the motion to strike on this ground. The court observes, however, as the defendant has pointed out, that certain portions of the affidavits merely characterize the defendant's expert testimony and are argumentative. The court therefore does not consider these statements in ruling on the summary judgment motion.

The court further finds that the testimony of the plaintiff's experts should not be striken as inconsistent with their prior deposition testimony. The cited testimony is not directly contradictory to deposition testimony, unlike the testimony addressed in the defendant's cited authority, Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104-05 (7th Cir.1985). Any perceived inconsistencies in the experts' testimony can certainly be pursued by Ford at trial.

Finally, the court notes that attorneys of parties to litigation generally are not proper witnesses, including at the summary judgment stage. Although courts sometimes allow attorneys' affidavits in limited circumstances, attorney statements that merely attest to the truth of the party's evidence are improper. See, e.g., Equia v. Tompkins, 756 F.2d 1130, 1136 (5th Cir.1985). In this case, however, it appears that the primary purpose of Mr. Perry's affidavit was to present documents to be considered at the summary judgment stage which he believed would later be the subject of the parties' stipulations. The court, for the reasons noted above, will not strike the plaintiff's documents on grounds of hearsay, irrelevance, undue prejudice, or failure to authenticate. On the other hand, the court will not consider statements in Mr. Perry's affidavit which are argumentative or which attempt to characterize the evidence presented.

For all of the foregoing reasons, the defendant's motion to strike is DENIED. The court, however, will disregard those submissions noted above which it deems improper. Finally, the parties are reminded that the court's rulings on this motion to strike do not constitute conclusive rulings on the admissibility of this evidence for trial purposes.

II. Motion for Partial Summary Judgment

A. Mr. Reed's Punitive Damages Claim

Ford has filed a motion for partial summary judgment, maintaining that it is entitled to judgment as a matter of law on the plaintiff's claim for punitive damages. In support of its motion, Ford has offered the deposition testimony of Mr. Alvin Alexandrowicz, supervisor of Ford's steering column and linkage section from 1968 through 1973. In that deposition, Mr. Alexandrowicz outlines the investigations and explorations made in the early 1970's in his section aimed at remedying the reported problem of inadvertent rearward movement in cars equipped with certain Ford transmissions. Mr. Robert Lange, whose deposition testimony has also been proffered by the defendant, was a Ford engineer from 1969 to 1982 who testified that he participated in a Ford task force studying inadvertent rearward movement. He, like Mr. Alexandrowicz, has testified as to the investigative and remedial efforts of Ford during the period prior to the manufacture of the plaintiff's Ford truck. According to Mr. Lange, the task force considered several alternatives but rejected all of them (prior to the 1980 model year) for various reasons.²

Based on this evidence, Ford contends that the plaintiff will never be able to meet the stringent standard required in Indiana for the imposition of punitive damages because Ford was not "consciously or heedlessly indifferent" to the complaints it received and because punitive damages would not advance the public policy of Indiana.

Despite the avalanche of paper filed in support of and in opposition to Ford's motion, the question for the court to resolve at the summary judgment stage remains relatively uncomplicated. The court will therefore set out the substantive standard governing punitive damage awards in Indiana, as that standard was articulated in the Indiana Supreme Court's most recent pronouncement, Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019 (1986). The court will then apply that standard to the evidence now before the court in light of the procedural standard for summary judgment motions mandated by ...