Opinion
IP 00-0620-C-G/T
September 19, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND VERIFIED MOTION TO STRIKE SUMMARY JUDGMENT SURREPLY
Though this entry is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
Plaintiffs Phillip Mahoney and Sharon Mahoney bring this action against Defendant Norfolk Southern Railway Company, alleging that Defendant was negligent in the operation of a locomotive which collided with a motor vehicle driven by Mr. Mahoney, thus causing them damages. Defendant moves for summary judgment and moves to strike Plaintiffs' surreply to the motion for summary judgment. The court has carefully considered the motions, the record and applicable law and rules as follows.
I. Motion for Summary Judgment
A. Legal Standard
Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case," Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary judgment, the non-moving party may not simply rest on the pleadings, but rather must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Celotex Corp., 477 U.S. at 322. If the non-moving party fails to make this showing, then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.
In determining whether a genuine issue of material fact exists, the court must view the record and all reasonable inferences in the light most favorable to the non-moving party. Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264 (7th Cir. 1996). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir. 2001). When ruling on a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence or draw inferences from the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000).
B. Facts
This case arises out of a pickup truck-train accident that occurred east of the railroad grade crossing on State Road 1 near Hagerstown, Indiana on June 10, 1998, at about 6:00 A.M. Just prior to the accident, Plaintiff Phillip Mahoney had been northbound on State Road 1 and the train was generally westbound toward Hagerstown. The accident occurred in foggy conditions. These conditions were general or widespread. When Mr. Mahoney left his home at Hagerstown earlier that morning around 5:00 A.M., the weather was very foggy and visibility was extremely limited. At around 6:00 A.M. when Mr. Mahoney headed toward the grade crossing, visibility in the fog was about the same as it had been when he left home earlier that morning. Because of the foggy and humid conditions, the asphalt surface of State Road 1 was damp or wet at the time of the accident. The windows of Mr. Mahoney's pickup truck were rolled up and he "probably" had his air conditioner on, "would say" he had his windshield wipers turned on, and "thinks" he was listening to the radio.
On the day of the accident there was a yellow and black railroad advance warning sign and white railroad advance pavement markings south of the crossing to warn northbound motorists they were approaching a railroad crossing. Mr. Mahoney does not recall seeing either the advance warning sign or the advance pavement markings as he drove north on State Road 1; the sign and pavement markings were obscured by the foggy conditions. In addition to the advance warning devices and the normal "crossbuck" railroad signs marking the location of the tracks, the grade crossing was equipped with automatic, train-activated warning devices that included two flashing light signals at the crossing, four overhead flashing light signals mounted on cantilever arms, two crossing gates with three warning lights mounted on the top of each gate, and a crossing warning bell.
At the time of the accident, the train was being operated by student engineer, Chris L. Morris, who was seated at the control stand on the left-hand (south) side of the lead locomotive. Engineer John F. Martin, Jr. was positioned in the front seat on the right-hand (north) side of the lead locomotive, and Conductor Geoffrey A. Wood was seated behind Martin in the second seat on the right-hand side. As the train approached the crossing, the train crew was able to see the flashers operating and the crossing gates down. At the time of the accident, the train was traveling approximately 53 m.p.h. — well below the federally prescribed 60 m.p.h. speed limit for that stretch of tracks. The lead locomotive's headlight was on full bright and the auxiliary "ditch" lights were activated as the train approached the crossing.
At the whistle post approximately a quarter of a mile east of the crossing, Engineer Morris turned on the engine bell and began sounding the warning whistle sequence required by the Railway's Operating Rules — two long blasts followed by a shorter blast and then a last long blast up to the crossing. Due to the foggy conditions, Morris extended the whistle blasts for longer than normal as the train approached State Road 1, sounding two longer "longs" and a longer "short" before sounding the last "long" up to the crossing. Both the whistle and engine bell were operating at the normal volume level.
Mr. Mahoney traveled daily on State Road 1, was familiar with the railroad crossing and knew that it was an active railroad line. He was not consciously aware that he was approaching the railroad crossing at the time of the accident. When he approached the crossing in the fog and realized the flashers were operating and the gates were down, he did not bring his pickup truck safely to a stop. Instead, he locked up his truck's brakes and skidded off the east side of the road, traveling through a shallow ditch behind the flasher station and up onto the railroad tracks east of the railroad crossing. Because the westbound train was just about to enter the crossing when Mr. Mahoney's truck came to rest on the tracks east of the crossing, there was no time for the crew to take any action (other than sounding the whistle) to try to avoid a collision. Both Mr. Morris and Mr. Wood made a full emergency brake application and, following the collision, Mr. Wood radioed for emergency assistance. Shortly after the accident, Signal Maintainer Rick Davis tested and inspected the crossing warning devices and confirmed that all components of the warning system were operating as intended.
On August 17, 2000, the court approved the parties' joint stipulation of dismissal with prejudice of all claims relating to the State Road 1 grade crossing.
C. Discussion
Norfolk contends it is entitled to summary judgment on the claim that it was negligent in the operation of the locomotive as the sole allegation is that the crew failed to sound the train whistle in violation of the law. In the alternative, it argues that the undisputed evidence establishes that the accident was caused solely by Plaintiff's negligence, or at a minimum, that Plaintiff's fault was greater as a matter of law than any fault attributable to Norfolk. Norfolk also contends that there is no issue of material fact as to whether it negligently trained its crew members and such an allegation is not made in the Complaint. It argues that even if the Complaint contained such an allegation, it would be preempted by federal law.
The court does not understand Plaintiffs to be asserting a claim against Defendant based on a negligent failure to train. This understanding is supported by the fact that Plaintiffs have not designated any evidence in response to the motion for summary judgment as to a negligent failure to train claim.
Plaintiffs allege that Norfolk was negligent because the train's crew negligently failed to sound the whistle as the train approached the grade crossing. Indiana law mandates, with an exception not applicable here, that:
the engineer or other person in charge of or operating an engine upon the line of a railroad shall, when the engine approaches the crossing of a . . . public highway, or street in this state, beginning not less than one-fourth (1/4) mile from the crossings:
(1) sound the whistle on the engine distinctly not less than four (4) times, which sounding shall be prolonged or repeated until the crossing is reached; and
(2) ring the bell attached to the engine continuously from the time of sounding the whistle until the engine has fully passed the crossing.
IND. CODE § 8-6-4-1(a). Defendant has presented evidence, namely the affidavit testimony of the crew members, that Engineer Morris sounded both the engine bell and warning whistle at the whistle post approximately 1/4 mile east of the State Road 1 grade crossing, sounded the whistle in compliance with the Railway's Operating Rules, and even extended the whistle blasts longer than normal because of the foggy conditions. Defendant has offered evidence that the whistle and engine bell operated at the normal volume level.
Plaintiff contends there is a genuine issue as to whether the train crew sounded the whistle and relies on his testimony and an affidavit of Jonathan Scudder for evidentiary support. During his deposition Mr. Mahoney testified that he did not recall hearing the whistle:
Q. Do you recall hearing a whistle from the train?
A. No.
Q. I believe you testified earlier that your windows were up, that you would have had, probably would have had your air conditioning on and to help with defrosting the windshield. I think that you also testified that you were listening to one of the Christian stations, probably music, as you drove north on State Road 1. In light of those kinds of background noises that we've established, is it possible that the crew could have sounded the whistle and you didn't hear it?
A. I wouldn't think so, you know. I can hear the whistle from my house in my bedroom two miles away.
(Mahoney Dep. at 124.) Thus, Plaintiffs offer Mr. Mahoney's negative testimony that he does not recall hearing the train whistle.
The Seventh Circuit has held that to be probative and admissible, negative testimony of a witness that he did not hear a whistle or bell must meet two requirements: (1) the witness must be in a position to have heard the whistle or bell, and (2) the witness must have been attentive to the whistle or bell. See, e.g., Wheat v. Baltimore Oh. R.R. Co., 262 F.2d 289, 293 (7th Cir. 1959) (affirming grant of judgment notwithstanding the verdict to defendant railroad); Bocock v. Wabash R. Co., 171 F.2d 834, 836 (7th Cir. 1949) (holding witnesses' testimony that they did not hear the train's whistle did not create factual question as to whether the whistle was sounded where evidence did not establish that witnesses were in proximity to hear the whistle or attentive to the whistle); Tr. Co. of Chicago v. Erie R. Co., 165 F.2d 806, 809 (7th Cir. 1948) (holding witness's testimony that he did not hear any train signals when he was not paying attention for signals was not probative of whether signal had been given); Stephenson v. Grand Trunk W. R. Co., 110 F.2d 401, 408 (7th Cir. 1940) (holding no evidence supported claim that no bell or whistle was given; "Testimony of a witness that he did not hear, without any proof that he was listening and in a position to hear, can carry no weight, especially in the face of positive and direct evidence to the contrary."); Pere Marquette Ry. Co. v. Anderson, 29 F.2d 479, 479-80 (7th Cir. 1928) (holding negative testimony that whistle and bell were not sounded by witnesses not in position to hear whistle and bell and not attentive to whether they were given did not create conflict in evidence with positive testimony of train crew that whistle and bell were sounded); cf. United States v. Laughlin, 772 F.2d 1382, 1394 (7th Cir. 1985) (district court abused its discretion in prohibiting witness from testifying that he did not hear defendant's inculpatory statement where court assumed witness was in a position to overhear the statement if made). Other jurisdictions are in accord. See Bryan v. Norfolk W. Ry. Co., 154 F.3d 899, 901-02 (8th Cir. 1998) (holding affidavits from witnesses living near railroad crossing not admissible to prove crew did not sound whistle to warn of train's approach where witnesses testified they had not been attentive to whether or when train whistle blew and one witness may not have been in a position to hear the whistle); Chicago N.W. Ry. Co. v. Golay, 155 F.2d 842, 846 (10th Cir. 1946) (holding witnesses' testimony that they did not hear whistle or bell was sufficient to get case to jury where witnesses were alert and vigilant in watching and listening for approaching trains and were so situated that in all probability would have heard the whistle or bell had it been given); Sharer v. The Atchison, Topeka Santa Fe Ry. Co., No. 91 C 3585, 1992 WL 107298, at *8-9 (N.D.Ill. May 14, 1992) (denying plaintiff's motion for summary judgment on claim that defendant negligently failed to sound whistle or horn despite witness's testimony that she did not hear a whistle, bell or horn, where witness testified she was not paying attention and other noise may have made it too loud for her to hear).
Mr. Mahoney's deposition testimony establishes that he was not attentive to the train whistle or bell:
Q. [D]id it occur to you during that drive up to the crossing that you were approaching a railroad crossing?
A. No. Very seldom, as I had stated earlier, very seldom did I encounter a train at that particular time when I was driving that. And that didn't occur to me. I was thinking and trying to think about everything and was thinking even of the fact when I got to 38 that I wanted to make sure that I was adjusted to where I would know where I was. But I didn't actually think about the crossing or about the train crossing.
(Mahoney Dep. at 123.) This deposition testimony is uncontradicted. The court finds that Mr. Mahoney was inattentive to the fact that he was approaching a railroad crossing as he approached the crossing and therefore was inattentive to the whistle or bell. Applying the case law to these facts, the court finds that Mr. Mahoney's testimony that he does not recall hearing the whistle or bell lacks any probative value and is inadmissible. Plaintiffs' claim that Mr. Mahoney's inattentiveness goes to the weight of the evidence rather than its admissibility is not supported by any citation to legal authority and is at odds with the aforementioned authorities. See, e.g., Bocock, 171 F.2d at 836 (holding witnesses' testimony that they did not hear the train's whistle did not create factual question as to whether the whistle was sounded where evidence did not establish that witnesses were in proximity to hear the whistle or attentive to the whistle); Pere Marquette Ry. Co., 29 F.2d at 479-80 (holding negative testimony that whistle and bell were not sounded by witnesses not in position to hear whistle and bell and not attentive to whether they were given did not create conflict in evidence with positive testimony of train crew that whistle and bell were sounded). Mr. Mahoney's testimony, therefore, fails to create a genuine issue as to whether the whistle or bell was sounded by the train crew.
Given this conclusion the court need not decide whether Mr. Mahoney, with his windows rolled up and radio, air conditioner, defroster and wipers on, was in a position to hear the train whistle.
Furthermore, it is noted that Mr. Mahoney has not testified that the train's whistle did not sound before the collision, only that he does not recall hearing it. Even assuming Mr. Mahoney had been attentive to the whistle or bell, his testimony would not create a genuine issue for trial. In Pere Marquette Ry. Co. v. Anderson, 29 F.2d 479 (7th Cir. 1928), it was alleged that a railway company was negligent in failing to sound the whistle and bell as statutorily required and that this negligence caused a collision with a motor vehicle. Id. at 479. A passenger on the train involved in the collision testified that he did not remember hearing the train whistle or bell. Id. In considering whether there was sufficient evidence for this negligence claim to reach the jury, the court stated that the passenger's testimony that "he did not remember hearing the signals may be disregarded entirely. . . ." Id. at 480; accord Callis v. Long Island R.R. Co., 372 F.2d 442, 444 (2nd Cir. 1967) (per curiam) (concluding that witness's testimony that he had no recollection of hearing a whistle or bell had no probative value). Mr. Mahoney's lack of recollection as to whether the whistle or bell sounded before the accident does not create a conflict with the testimony of the train's crew that the whistle and bell were sounded in accordance with normal operating procedures.
Plaintiffs also offer Mr. Mahoney's testimony that he does not think it is possible that the train crew could have sounded the whistle and he did not hear it, as he can hear the whistle from his house which is two miles away. This testimony is entirely speculative and, therefore, fails to create a genuine issue as to whether the whistle was sounded. In United States Steel Mining Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor, 187 F.3d 384 (4th Cir. 1999), the plaintiff sought survivor's benefits under the Black Lung Benefits Act. The plaintiff offered the testimony of a doctor who speculated about the possible causes of the death of her husband. The doctor opined that: "it is possible that death could have occurred as a consequence of his [the husband's] pneumonia superimposed upon . . . his occupational pneumoconiosis" and therefore "[i]t can be stated that [his] occupational pneumoconiosis was a contributing factor to his death." Id. at 390. The court concluded that this testimony did not fulfill the plaintiff's burden of proving more-probably-than-not that her husband's death was because of pneumoconiosis. Id. The court explained:
If a claimant . . . had the burden of establishing that a traffic light was green his way, he would not satisfy his burden of proving that fact with testimony that "it is possible that it could" have been green his way. While it is possible it could have been green, it is also possible that it could have been red or yellow or even non-functioning. Because the testimony is entirely speculative, it does not advance the claimant's case.
Id. The court added that "[m]ore importantly, the statement that it is possible that the light could have been green does not exclude, to any degree, the opposite proposition.
Therefore, it cannot establish more likely than not that the light was green." Id. at 390-91. Likewise, Mr. Mahoney's testimony that he does not think it is possible that the train crew could have sounded the whistle and he did not hear it is entirely speculative. Such testimony, consequently, does not create a genuine issue as to whether the whistle was sounded. That leaves Plaintiffs with an affidavit of Mr. Scudder, executed on January 12, 2001, which they maintain creates an issue of fact regarding the sounding of the whistle.
Mr. Scudder states in that affidavit: "I did not hear the train blow its whistle until after the impact had already occurred." (Scudder Aff., 1/12/01 ¶ 5.) Plaintiffs also rely on portions of a transcript of a tape recorded statement given by Mr. Scudder to Plaintiff's counsel, John F. Townsend, III, after the accident on June 17, 1999. At that time, Mr. Scudder was asked the following relevant questions and gave the following answers:
Q. Could you . . . tell me what what [sic] you witnessed.
A. . . . I did not hear a whistle or anything like that. . . .
. . .
Q. Ok. Did you hear the train blow a whistle?
A. I don't recall hearing the train whistle until after the impact.
(Scudder Aff. 1/12/01 ¶¶ 3-4 Ex. A at 1-2.) However, in an affidavit executed by Mr. Scudder on July 3, 2000 and offered by Defendant, Mr. Scudder states that: "At the time of the accident, my radio was on and the defroster was turned on low, but I was still able to hear the train's whistle for about 5 to 10 seconds before the impact." (Scudder Aff. 7/3/00 ¶ 6.)
"`As a general rule, the law of this [the Seventh] circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.'" Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000) (quoting Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996)); see also Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1171-72 (7th Cir. 1996); Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 520-21 (7th Cir. 1988) (applying rule to non-party witnesses). An exception to this general rule arises when the witness offers a plausible explanation for the change in the sworn testimony, whether it be because the prior statement was mistaken, perhaps because of confusion or a lapse in memory, the subsequent statement is based on newly discovered evidence, or some other plausible reason. See Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406 n. 4 (7th Cir. 1998); Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 756 (7th Cir. 1998); Bank of Ill., 75 F.3d at 1171-72; Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995); Adelman-Tremblay, 859 F.2d at 520-21.
Plaintiffs concede that there is "some conflict" between the Scudder affidavit offered by them and the Scudder affidavit offered by Defendant, but argue "these discrepancies" "go only to the weight of the evidence" (Pls.' Br. Resp. Def.'s Mot. Summ. J. n. 1). The court finds that it is beyond dispute that the Scudder affidavit offered by Plaintiffs directly contradicts his prior sworn affidavit offered by Defendant. Thus, the question becomes whether Mr. Scudder has offered a plausible explanation for the change in his testimony about when he heard the train whistle.
Upon examining Plaintiffs' Surreply to Additional Material Facts and Mr. Scudder's deposition testimony taken on February 8, 2001, the court finds that Mr. Scudder has not offered a plausible explanation for the change in his testimony. Mr. Scudder has given two tape recorded statements, signed two affidavits, and given a deposition in this case. The first tape recorded statement was given to Defendant's employee, a Mr. Spradlin on August 20, 1998, approximately 2 months after the accident at issue. (Scudder Dep. at 39, 50.) A few weeks after giving the statement to Mr. Spradlin, Mr. Scudder refreshed his recollection by going to the scene of the accident and remembered that he had not heard the train whistle until after the impact. (Id. at 46-49, 52.) Thereafter, on June 17, 1999, Mr. Scudder gave a tape recorded statement to Plaintiffs' counsel in which he stated that he did not hear the train whistle until after impact. (Id. at 38; Scudder Aff. 1/12/01, Ex. A at 1-2.)
Though Defendant refers in its reply brief to some additional evidence relating to Mr. Scudder not previously offered by either party in the summary judgment briefing papers (see Def.'s Reply Br. at 4-6), it did not comply with Local Rule 56.1(d)(1) as it did not include such evidence in a Statement of Additional Evidence on Reply. Plaintiffs in an effort to comply with Local Rule 56.1 have designated certain evidence as their Surreply to Additional [Material] Facts, Nos. 41-46. The court may consider the matters placed in the record through Plaintiffs' Surreply and the submission of Mr. Scudder's deposition testimony.
Subsequently, on July 3, 2000, he was asked by Defendant's counsel to execute an affidavit ("the July affidavit"), submitted by Defendant in support of its summary judgment motion, in which Mr. Scudder states that he heard the train whistle for 5 to 10 seconds before the impact. (Scudder Aff. 7/3/00 ¶ 6.) Defendant secured this July 3 affidavit based on the tape-recorded statement provided by Mr. Scudder to Mr. Spradlin in August 1998, in which Mr. Scudder said that he heard the whistle 5 to 10 seconds before impact. (Scudder Dep. at 50.) The July affidavit states: "I affirm under the penalty for perjury that the foregoing representations are true and correct." (Scudder Aff. 7/3/00 at 2.) The July affidavit does not reference the prior tape-recorded statement given by Mr. Scudder to Defendant.
After Mr. Scudder executed the wholly contradictory January 12, 2001, affidavit, he was deposed by Defendant. At his deposition, Mr. Scudder testified that he did not believe that he heard the train's whistle 5 to 10 seconds before impact. (Scudder Dep. at 61-63.) He explained that he signed the July affidavit because he was "thinking that [the affidavit] was stating yes, that's the tape statement that I gave [Defendant] and that's what I said." (Scudder Dep. at 50; see also id. at 58 ("I signed that [the July affidavit] because that's what I had stated on the tape, and I thought that's what I had to do because that's what it said on the tape, and I was signing it that yes, that's what I said on the tape."), 60 ("that's what I had said on the tape. I thought I was signing something that said this is what — this is your recorded statement on the tape, and I thought that's what I was signing.")).
The July affidavit, however, was unambiguous on its face and simplistically clear. Nowhere on the affidavit does it state that Mr. Scudder believed the statements made therein to be true only on some date previous to July 3, let alone that he no longer believed those statements to be true. Rather, all indications from a fair reading of the affidavit indicate that Mr. Scudder's affidavit testimony was accurate as to the date the affidavit was executed. There is no reason to think from the face of the affidavit that Mr. Scudder could have misunderstood the meaning of the sworn to testimony. Nor does Mr. Scudder suggest in his deposition testimony that he was misled or tricked by Defense counsel as to the meaning of the statements contained within the July affidavit. Instead, Mr. Scudder's testimony indicates that he, without any help from Defendant's counsel, came to the conclusions he now stands by in attempting to explain his contradictory affidavits.
Moreover, and troubling to the court, two days after Mr. Scudder executed the affidavit, Defendant's counsel sent Mr. Scudder a courtesy copy of the affidavit and a cover letter which stated in part:
I enclose for your reference a copy of the affidavit which you signed on July 3, 2000. As you know, by executing the affidavit, you have sworn under penalty of perjury that all of the statements contained in the affidavit are true and correct.
(Scudder Dep. Ex. C.) At no time after receiving this letter did Mr. Scudder attempt to contact Defendant's counsel and explain his purported misunderstanding of the meaning of the affidavit. (Scudder Dep. at 37.) Mr. Scudder is an educated man. He received an associates degree in accounting from Ivy Tech in Anderson, Indiana, and is employed in the accounting field. (Id. at 8-9.) Had Mr. Scudder initially misunderstood the meaning of the July 3 affidavit, the simple and direct language of the July 5 letter surely would have caused him to question the accuracy or completeness of the testimony he so recently swore was true under the penalty of perjury.
The court finds that Mr. Scudder's testimony is insufficient to create a genuine issue of material fact as to whether the train crew sounded the whistle. Mr. Scudder's explanation for his contradictory testimony is simply not plausible. The court cannot sit idly by and refuse to act when a witness presents two sworn statements which are diametrically opposite to one another and then submits an explanation therefor which, in the court's opinion, simply does not hold water. Defendant's request to strike the affidavit of Mr. Scudder executed on January 12, 2001, is therefore GRANTED and Plaintiffs have no evidence on which they can survive summary judgment.
Because summary judgment is appropriate on Plaintiffs' negligence theory, the court need not address Defendant's comparative fault argument.
II. Verified Motion To Strike Summary Judgment Surreply
Defendant moves to strike the surreply filed by Plaintiffs. Defendant does not object to the surreply in total, but rather, takes issue with the alleged "scandalous and impertinent accusations" contained therein. Those accusations are that: (1) defense counsel "misled" Mr. Scudder about the meaning of the July affidavit when presenting it to him, (Pls.' Surreply at 4); (2) Mr. Scudder "has been the unfortunate victim of overzealous work by the defense," (id.); (3) Mr. Scudder "was basically tricked into signing the affidavit for the defense," (id.); and (4) "the affidavit obtained by the defense was the result of defense counsel essentially lying to him about its meaning." (Id. at 5.)
The court has reviewed Mr. Scudder's deposition in its entirety and finds no statement by Mr. Scudder that he was "misled," victimized, "basically tricked" or lied to by defense counsel in connection with the July affidavit. Rather, Mr. Scudder testifies repeatedly that he misunderstood what he was signing by signing the July affidavit and believed he was merely acknowledging the prior statement given to Mr. Spradlin. Mr. Scudder's misunderstanding does not compel a conclusion that he was "misled," victimized, "tricked" or "lied to" by defense counsel. These accusations made by Plaintiffs are serious indeed. Moreover, they imply unethical conduct by defense counsel and, thus, are scandalous. As the record presently before the court contains no evidentiary support for such accusations, they should be stricken from the surreply. Accordingly, Defendant's verified motion to strike Plaintiffs' summary judgment surreply is GRANTED IN PART: the surreply is not stricken in its entirety, but the four above quoted statements are ordered stricken. Plaintiffs' counsel is cautioned to be wary in the future of making such serious accusations in the absence of clear factual support for same.
III. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. Defendant's verified motion to strike Plaintiffs' surreply is also GRANTED IN PART as stated more fully above.