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Jarvis v. Mid-South Rail Corp.8/24/1998
llegedly protected by 23 U.S.C. § 409. Defendants did file motions in limine as an alternative to the motions for summary judgment, but these motions sought to exclude evidence relating to restricted sight distance or the adequacy of the warning devices because of preemption. Surprisingly, these motions in limine do not mention 23 U.S.C. § 409.
From the record we conclude that the trial court did not consider Shrewsberry's deposition when ruling on the motions. We note this exchange between the court and counsel:
The Court: If you Ä Mr. Hobbs, if you have trouble with that witness in Baton Rouge, bring him Ä subpoena him to my court and we'll Ä I'll show him where his privilege lies.
Mr. Hobbs: I attached a copy of his deposition to my opposition.
The Court: Well, I didn't Ä Your opposition came in a little late. You know? And so I didn't Ä We didn't have the benefit of going over it yesterday or the day before. But, I'll handle that when the time comes. Thank you, gentlemen.
(R. p. 208)
Shrewsberry reached his Conclusion that federal funds were used to install warning devices at the Golson Road crossing after reviewing La. DOTD records, some of which may or may not be privileged under federal law.
Shrewsberry's personal knowledge may resolve this court's La. C.C.P. art. 967 dilemma. The portion of a deposition not based on personal knowledge should not be considered when deciding a motion for summary judgment. McCoy v. Physicians & Surgeons Hosp., Inc., 452 So.2d 308 (La. App. 2d Cir. 1984), writ denied. See also Ivy v. Freeland, 576 So.2d 1117 (La. App. 3rd Cir. 1991); Butler v. Reeder, 615 So.2d 1120 (La. App. 5th Cir. 1993).
Personal knowledge is "something which the witness actually saw or heard as distinguished from something he learned from some other person or source." Gardner v. Louisiana State University Medical Center in Shreveport, 29,946 (La. App. 2d Cir. 10/29/97), 702 So.2d 53, 56.
We recognized a distinction between personal knowledge and knowledge gained from review of records in Farm Credit Bank of Texas v. Bassett, 26,780 (La. App. 2d Cir. 4/5/95), 653 So.2d 206. There, the regional vice-president of the bank had drafted an affidavit in which he stated he had "personal knowledge, or knowledge based upon review of the business records maintained in the ordinary course of business. . . ." The affidavit was ultimately found defective because the business records were not attached. This court then stated that the affiant may have had personal knowledge, but found the affidavit to be unclear as to what the vice-president had actually relied on to determine the amount owed by the debtors.
At one point during his deposition, Shrewsberry seemed confused about the source of his knowledge. When asked if he researched any DOTD records before making the affidavit, he stated, "it's hard for me to remember what I already had knowledge of and what was produced by the Parish's attorney for me regarding this affidavit."
Mid-South cites Brown v. Adolph, 96-1257 (La. App. 1st Cir. 3/27/97), 691 So.2d 1321 in support of its argument that Shrewsberry possessed the requisite personal knowledge when making the statement that federal funds were utilized. The Brown court accepted an affidavit as being based on personal knowledge even though the affiant testified as to what he had found in his "personal review" of the company records. However, the Brown court also noted that the affiant's testimony was supported by the very documents he had testified about.
In contrast, Shrewsberry's statements in his affidavit and his deposition essentially say the same th
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