United States District Court, W.D. Louisiana, Lafayette Division
LEONARD P. LEBLANC and TAMMY LEBLANC
DAROL DEJUAN STONEHAM, ET AL.
RULING ON MOTION
PATRICK J HANNA UNITED STATES MAGISTRATE JUDGE
pending is the plaintiffs' motion to strike the affidavit
of Leonard LeBlanc that was submitted by the plaintiffs in
support of their motion for partial summary judgment. (Rec.
Doc. 48). The motion is opposed. (Rec. Doc. 51). Considering
the evidence, the law, and the arguments of the parties, and
for the reasons fully explained below, the motion is granted
in part and denied in part.
lawsuit arises out of a motor vehicle accident. According to
the plaintiffs' petition, plaintiff Leonard LeBlanc was
driving a 2010 Ford Ranger and heading north on Highway 88 in
Iberia Parish on January 21, 2015. At the same time,
defendant Darol Stoneham, who was in the course and scope of
his employment with defendant Pinch Flatbed, Inc., was
driving an 18-wheeler that was registered to Penske Leasing
and leased to Pinch. Mr. Stoneham allegedly ran through a
stop sign at the intersection of Highway 88 and Labit Road
then turned left as Mr. LeBlanc passed through the
intersection, colliding with Mr. LeBlanc's vehicle. The
plaintiffs claim that Mr. LeBlanc injured his neck and back
in the accident, and his wife asserted a claim for loss of
was filed in the 16th Judicial District Court,
Iberia Parish, Louisiana, against Mr. Stoneham, Pinch, and
Pinch's alleged insurer, AIG Property & Casualty Ins.
Co. An amending petition added New Hampshire Insurance
Company as a defendant. The defendants removed the action.
Then a second supplemental and amending complaint added
Gemini Insurance Services, Inc. as a defendant.
plaintiffs filed a motion for partial summary judgment with
regard to the issues of liability and insurance coverage.
(Rec. Doc. 40). In support of that motion, the plaintiffs
submitted the affidavit of plaintiff Leonard LeBlanc. (Rec.
Doc. 40-5). The removing defendants now seek to strike that
support of their motion to strike Mr. LeBlanc's
affidavit, the plaintiffs argued that the affidavit is
inadmissible under Fed.R.Evid. 604 and Fed.R.Evid. 701. Rule
56(c)(4) of the Federal Rules of Civil Procedure requires
that “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Rule 56(c)(2) permits a party to object when
the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
Therefore, as a threshold matter, it was not necessary for
the removing defendants to file a motion to strike the
plaintiff's affidavit. The better course of action would
have been for them to simply object to the
affidavit. Accordingly, the pending motion to strike
will be treated as an objection to the affidavit rather than
as a motion to strike.
affidavit, Mr. LeBlanc avers: “I do not read and write,
but have had this affidavit read aloud to me, and understand
and confirm what it contains.” (Rec. Doc. 40-5 at 2).
The removing defendants objected to the affidavit under
Fed.R.Evid. 604 on the basis that it does not identify the
person who read the affidavit to Mr. LeBlanc. Rule 604 states
that “[a]n interpreter must be qualified and must give
an oath or affirmation to make a true translation.”
Therefore, Rule 604 does not directly address the situation
presented here, i.e., when the affiant can neither read nor
write. Further, the defendants presented no statutory or
jurisprudential authority extending Rule 604 and applying it
in this situation. Accordingly, Rule 604 does not provide a
valid basis for the removing defendants' objection to the
affidavit as a whole.
removing defendants also objected to Paragraphs 6 and 7 of
the affidavit on the basis that these paragraphs do not state
facts but, instead, contain opinion testimony by a person who
has not been qualified as an expert witness. Paragraph 6
reads: “Darol DeJuan Stoneham was the sole cause of the
collision.” Paragraph 7 reads: “I could not do
anything to avoid this accident.” This Court agrees
that these statements constitute the affiant's opinions
rather than his factual observations. The plaintiffs argued,
however, that opinion testimony is permitted by persons who
are not qualified as expert witnesses, and should be
permitted in support of their motion for partial summary
judgment, because Rule 701 allows a lay witness to express
opinions that are based on the witness's own perception,
helpful in understanding the witness's testimony or to
determining a fact in issue, and not based on scientific,
technical, or other specialized knowledge.
plaintiffs are correct that not all opinions by lay witnesses
are forbidden. Furthermore, Fed.R.Evid. 704(a) instructs that
an opinion is not objectionable just because it embraces an
ultimate issue. However, a witness is not permitted to
opine about legal conclusions or to tell the jury what result
opinions set forth in Paragraphs 6 and 7 of the affidavit
address whether the defendant's actions was the sole
cause of the collision underlying this lawsuit and whether
plaintiff Leonard LeBlanc's actions contributed to the
cause of the accident. These are issues that the jury must
resolve after receiving appropriate legal instructions from
the court. For that reason, they will not be considered by
this Court in ruling on the plaintiffs' motion for
partial summary judgment.
Court construes the pending motion to strike (Rec. Doc. 48)
as an objection to the affidavit of Leonard LeBlanc that was
submitted by the plaintiffs in support of their motion for
partial summary judgment. The objection is GRANTED IN PART
and DENIED IN PART; more specifically, the objection is
granted to the extent that this Court will not consider the
statements set forth in Paragraphs 6 and 7 of the affidavit