MEMORANDUM AND ORDER
JAMES McGIRR KELLY, District Judge.
Presently before the court are: (1) defendant's motion to deny plaintiff's request for bifurcation of trial; (2) plaintiff's motion in limine to preclude defendant's proposed expert medical testimony on liability and certain other expert testimony; (3) defendant's motion to strike affidavits; and (4) defendant's motion for summary judgment. These motions will be addressed seriatim.
DEFENDANT'S MOTION TO DENY PLAINTIFF'S REQUEST FOR BIFURCATION OF TRIAL
Plaintiff Helen Lowe, a black female presently employed at Philadelphia Newspapers, Inc. ("PNI") in its Daily News Retail Advertising Department as an inside advertising sales person, brought this action against PNI under 42 U.S.C. § 1981 on April 14, 1983. Plaintiff's primary allegation in this litigation is that she was denied promotion to an outside advertising sales position because of her race and that she was retaliated against for bringing an earlier administrative complaint of race discrimination in 1980. She seeks injunctive relief and back pay for the failure to promote her to an outside sales position. Plaintiff also alleges that she suffered severe emotional and physical distress from alleged harassment on the job and seeks compensatory damages. A claim for punitive damages has also been alleged. Plaintiff has demanded a jury trial.
Discovery in this action was completed on November 30, 1983. See 101 F.R.D. 296. On December 14, 1983 the parties filed pretrial memoranda and on December 23, 1983 plaintiff filed an amended pretrial memorandum. In her pretrial memoranda, plaintiff has requested that this Court bifurcate the trial of this action and hold separate trials for liability and damages. Plaintiff has not filed a formal motion for bifurcation. Defendant PNI opposes plaintiff's request for bifurcation and filed the instant motion to properly bring the issue of bifurcation before the Court for resolution. Defendant submits that bifurcation of the instant proceedings would be inappropriate because it would not serve the interests of judicial economy but would, on the contrary, cause numerous witnesses, including physicians, to be called twice, to testify in both the liability and damages stages of the case.
Plaintiff denies defendant's legal conclusions that bifurcation of the trial would not serve the interests of judicial economy and convenience and that bifurcation would not serve the interest of avoiding jury confusion or prejudice. Plaintiff also denies the allegation that bifurcation would result in substantial lengthening of the trial and the calling of physicians twice.
The Federal Rules of Civil Procedure, Rule 42(b) provides in pertinent part that:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, . . . or of any separate issue. . . ." F.R.C.P. 42(b).
In deciding whether bifurcation of a trial into separate liability and damages trials is appropriate, the Court must consider Rule 42(b) on a case-by-case basis in the exercise of informed discretion. Lis v. Robert Packer Hospital, 579 F.2d 819, 824 (3d Cir.1978), cert. denied, 439 U.S. 955, 99 S. Ct. 354, 58 L. Ed. 2d 346 (1978). The procedure selected by the trial court should be "conducive to expedition and economy." Kushner v. Hendon Construction, Inc., 81 F.R.D. 93, 98 (M.D.Pa.1979). Bifurcation should be granted only where the court concludes that separate liability and damage trials "further convenience or avoid prejudice." Moss v. Associated Transport, Inc., 344 F.2d 23, 26 (6th Cir.1965); See also, McCrae v. Pittsburgh Corning Corp., 97 F.R.D. 490, 492 (E.D.Pa.1983). The party seeking bifurcation has the burden of showing that bifurcation is proper in light of the general principle that a single trial tends to lessen the delay, expense and inconvenience to all parties. McCrae, 97 F.R.D. at 492. The decision is within the discretion of the trial judge. Id.
Plaintiff has not demonstrated to the court "unfair prejudice." Plaintiff's argument for bifurcation is that defendant intends to call medical experts to testify that plaintiff is a "mental cripple" which she contends is irrelevant to the liability issue of the case. Defendant contends that the medical testimony proffered will prove plaintiff suffers from a personality disorder known as the "passive-aggressive personality" which tends to manifest itself in procrastination and intentional inefficiency making her procrastinate, dawdle and difficult to work with in that she is less likely to work at one hundred percent. Another expert will be presented by defendant to testify, inter alia, plaintiff's lack of qualifications due to her personality disorder.
Three other doctors may be called by the defense to testify on liability issues whether plaintiff's psychiatric problems predated her attempt to obtain promotion in 1977; how the antidepressant and other medications, some of which have sporific side effects, effected plaintiff's dependability, quality of work, attitude in the work environment, and qualifications for promotion. Where damages evidence is involved in proof of the fact of damage, bifurcation into liability and damages trials is inappropriate. Broadway Delivery Corp. v. United Parcel Service of America, Inc., 74 F.R.D. 438, 439 (S.D.N.Y.1977).
Finally, testimony by Drs. Speck and Kool is also relevant to the liability question of whether the alleged harassment claimed by plaintiff is racial and is harassment at all. Dr. Speck has testified in deposition that because of her personality disorder, plaintiff is overly sensitive and may have overreacted to events on the job. Dr. Kool will also be called to testify on this subject. Testimony concerning a § 1981 plaintiff's mental disorder which causes him or her to perceive criticism as harassment, and to perceive racial slurs where no racial motivation is present, is highly relevant to the question whether plaintiff's perception of racial harassment is correct. See Davis v. United States Steel Corp., 539 F. Supp. 839 (E.D.Pa.1982) (Newcomer, J.) (incidents alleged by plaintiff to be racial harassment held to be legitimate criticism and discipline inaccurately perceived by plaintiff because of emotional disorder).
For the foregoing reasons I am denying bifurcation of this trial.
PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE DEFENDANT'S PROPOSED EXPERT TESTIMONY ON LIABILITY
The principal issue in this motion is whether the defendant will be permitted to present expert witnesses to testify as to plaintiff's personality characteristics. In her motion plaintiff presumed that bifurcation would be granted. Since bifurcation has been denied, the arguments proposed by plaintiff are moot. Plaintiff contended that if the trial were bifurcated into liability and damages issues, expert testimony would only be relevant on the damage issues and would be highly prejudicial and irrelevant to the liability issues.
The plaintiff couched her argument in the Federal Rules of Evidence, Rules 407 and 701. It is clear to me that defendants proposed expert testimony is relevant on the issues of plaintiff's mental state, alleged personality disorder and to corroborate the observations of defendants' managers who interviewed plaintiff for various promotions. Plaintiff can make her objections regarding relevancy of the expert testimony at trial.
DEFENDANT'S MOTION TO STRIKE AFFIDAVITS
Defendant has moved to strike four affidavits submitted in support of plaintiff's opposition to defendant's motion for summary judgment.
Defendant contends the affidavits do not conform to the express requirements of Rule 56(e)
of the Federal Rules of Civil Procedure.
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 striken. Automatic Radio Mfg. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S. Ct. 894, 896, 94 L. Ed. 1312 (1950) ("information and belief" not sufficient); see also Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978) (affidavit statements such as "I believe", "belief", "understanding", and "information and belief" are insufficient under Rule 56(e)); Gostin v. Nelson, 363 F.2d 371 (3d Cir. 1966) ("information and belief" not enough).
Defendant contends the affidavit of Ross V. Speck, M.D. fails to aver that the statements contained therein are based upon his "personal knowledge" and therefore must be striken. See Kern v. Tri-State Ins. Co., 386 F.2d 754, 756 (8th Cir.1967) (physician's affidavit stricken because it did not state it was based on his personal knowledge, which is a mandatory requirement under Rule 56(e)).
Whereas, plaintiff has submitted an amended affidavit from Dr. Speck which specifically states, "the facts stated in this affidavit are based on my personal knowledge from observing and evaluating Mrs. Lowe in treatment."
Affidavit of Ross V. Speck, M.D. at 13 (April 16, 1984). The standard of review regarding affidavits of an expert witness devolved by the Third Circuit is very clear.
The policy behind Rule 56(e) is 'to allow the affidavit to contain all evidentiary matters which, if the affiant were in court and testifying on the witness stand, would be admissible as part of his testimony. ' . . . Where, as here, the affidavits are submitted to oppose the grant of summary judgment, opinion evidence is appropriately considered to support the existence of a disputed issue of fact.
Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.1975).
Secondly, defendants contend that Rule 56(e) specifically provides that affidavits must be based upon "specific facts". Defendant contends that the affidavits of Alex Trombetta, Fred Bonaparte and Charles Marvin Porter must be stricken because said affidavits contain conclusory language, vague assertions, gross speculation and inferences. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982) (Rule 56(e) does not allow a party resisting [a motion for summary judgment] to rely merely upon bare assertions, conclusory allegations or suspicions"); United States v. Various Slot Machines on Guam, 658 F.2d 697, 699-701 (9th Cir.1981) (affidavits stricken because they did not set forth specific supporting facts); Over the Road Drivers, Inc. v. Transport Ins. Co., 637 F.2d 816, 819 (1st Cir.1980) (affidavits which "do not go beyond the sort of unsupported assertions more appropriately confined to pleadings" do not defeat summary judgment); Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978) (bare unsupported assertions are insufficient); Kung v. FOM Investment Corp., 563 F.2d 1316, 1318 (9th Cir.1977) ("conclusory allegations, unsupported by factual data, do not create a triable issue of fact."); Carey v. Beans, 500 F. Supp. 580, 583 (E.D.Pa.1980) (Troutman, J.), aff'd mem., 659 F.2d 1065 (3d Cir.1981).
After a thorough review of the above cases and a comparison of the affidavits submitted by plaintiff's counsel, I am convinced that the affidavits substantially comply with the standard of Rule 56(e).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant has filed a motion for summary judgment arguing that plaintiff's proof amounts to mere speculation, and that the plaintiff's personality disqualifies her not only from advancing in her employment but alos from presenting her case to a jury for a determination of her claims.
The standard established by the Third Circuit which the defendant must meet for the District Court to grant summary judgment is clearly stated in Knoll v. Springfield School District, 699 F.2d 137, 30 F.E.P. Cases 1383 (3d Cir.1983) as follows:
To affirm the District Court's summary judgment order we must determine whether there existed no dispute as to any material fact so that defendants were entitled to judgment as a matter of law . . . neither the court on appeal nor the District Court at trial is authorized, in approving a summary judgment order, to decide disputed issues of facts' our sole task is to determine whether an unresolved issue of material fact existed at the time the ruling was made. . . . accordingly we must view inference from the facts contained in the evidentiary material submitted to the District Court in the light most favorable to the party opposing the summary judgment motions. . . . that party's allegations must be taken as true and, when those assertions conflict with those of the movant, the former must receive the benefit of the doubt. [citations omitted].