The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
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.
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
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.*fn1 Based on the medical evidence presented by Plaintiff in
his Motion to Substitute, the Chase Defendants request that we strike
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
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.
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.
For the foregoing reasons, we will grant the Chase Defendants' Motion
to Strike the ...