affidavit is an abbreviated version of the original document and contains the same legal arguments and conclusions. (Document #34).
The use of opinion evidence in the form of an affidavit is appropriate to support or oppose a motion for summary judgment. Opinion testimony that would be admissible at trial may be considered. Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975). A court must disregard an expert affidavit where the affidavit is "essentially conclusory" and lacks specific facts. Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144 (3d Cir. 1990) (quoting Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985).
The Lloyd affidavits present a mixed bag of information. Some of it is in the nature of expert opinion or testimony as to industry custom and practice while other portions amount to no more than additional legal argument as to the correct interpretation of the applicable law and attempts to construe testimony in the light most favorable to Liberty Mutual.
These arguments on the law would not be admitted at trial and were inappropriate material for our consideration in support of the motion of Liberty Mutual for summary judgment. We hasten to add, however, that they were not much different than information which might be found in legal briefs and for that reason, had no real impact on the decision of the court. The court disregarded those portions of the Lloyd Affidavits which amount to supplemental arguments on the law and summarization of deposition testimony and considered only the balance of the affidavits dealing with industry practice and custom. Accordingly, the motion of PNC to strike the Lloyd Affidavits will be granted in part and denied in part.
An appropriate order follows.
Doc. Nos. 16, 22, 25 and 35
AND NOW, this 10th day of Jan., 1996, upon consideration of the motions for summary judgment of plaintiff PNC Bank, National Association (Document No. 22) and defendant Liberty Mutual Insurance Company (Document No. 16), as well as the oral argument and briefs in support and opposition thereto, IT IS HEREBY ORDERED that the motion of PNC Bank, National Association is DENIED and the motion of Liberty Mutual Insurance Company is GRANTED.
IT IS FURTHER ORDERED that the motions of PNC Bank, National Association to strike the affidavits of Arthur G. Lloyd (Document Nos. 25 and 35) are GRANTED insofar as the affidavits contain case citations and arguments on the law and DENIED, insofar as the affidavits contain information pertaining to industry custom and practice.
The Clerk of Courts is DIRECTED to mark the docket in this case closed.
ROBERT J. CINDRICH