Topics: Appellate Review


Form of Affidavits; Further Testimony; Defense Required



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Form 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. …
Here, the two documents submitted by Pioneer addressing the origin of its possession...were sworn to by Pioneer's counsel, not by the preparers or custodians of these records. Therefore, Pioneer's evidence...was inadmissible and improperly relied upon by both the circuit court and the ICA.
Aside from the fact that opposing counsel provided translations properly sworn to by their translator, counsel's vouching for the authenticity of Edith McKinzie's translations does not sufficiently comply with HRCP Rule 56(e).
Some may argue that this court's requirement that counsel comply with HRCP Rule 56(e) is the equivalent of form over substance. However, we believe that HRCP Rule 56(e) provides substance through form. It is the only way that a circuit court, amidst all of its other duties, can efficiently and uniformly insure that summary judgment is granted or not granted based upon evidence that will be admissible at trial.
The unverified statements of fact alleged in counsel's memorandum, as well as counsel's oral representations advanced at the hearing on Pioneer's motion, cannot be the basis for the circuit court's award of summary judgment. Indeed, those facts alleged that were unverified or improperly verified were not properly before the circuit court in its determination.
Therefore, on this basis alone, we reverse and remand the matter to the circuit court for further proceedings consistent with this opinion.

BRUTHER v. GENERAL ELECTRIC, 818 F.Supp 1238 (S.D. Ind. 1993)


Plaintiff was electrocuted while changing a light bulb at his place of employment…

Defendant has moved for summary judgment on... [the ground that] Plaintiff cannot authenticate the bulb that he wishes to introduce into evidence...


Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.Proc. 56(c)…
Defendant believes that Plaintiff is unable to authenticate the bulb that he seeks to introduce into evidence because of the lack of identifying marks on the bulb, and the existence of a gap in the chain of custody which developed immediately after the accident occurred. Apparently, no one took care to safeguard the bulb after Plaintiff was injured… it is unclear what became of the bulb after [the accident]. [Someone] found a broken bulb in a small cabinet next to the site where the accident occurred. [Another person] believes, with some reservations, that it is the bulb in question because “[w]e wouldn't keep broken bulbs; so if it was there, it had a specific purpose to be there.” … [that two weeks before the accident plaintiff had installed General Electric bulbs in the sockets where he was working at the time of the accident, and that to the best of his knowledge no other brand of bulbs were ever used in those sockets].
The Court finds that the evidence in the record is “sufficient” within the meaning of F.R.E. 901 to support a finding that the bulb in question is the bulb that caused Plaintiff's injuries, and that the bulb was manufactured by Defendant. Of course this holding is limited only to the issue whether Plaintiff has met the threshold burden of producing enough evidence to support his allegations; the determination whether the bulb in fact is what the Plaintiff claims it is must be made by the jury when it acts in its appointed role as finder of fact… “any discrepancies in the chain of custody go to the weight of the evidence, not its admissibility.”

Defendant's motion for summary judgment is DENIED...




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