The Court of Appeals for the Eleventh Circuit held that an affidavit of a third party concerning a statement made by an executive of the defendant was admissible to defeat a motion for summary judgment. In Wright v. Farouk Systems, Inc. ____ F.3d. ____ (11th Cir. 2012), 2012 WL 5948962, plaintiff sued the manufacturer of a hair bleaching product claiming that application of it had burned her scalp resulting in injuries including a skin graft.
The defendant filed a motion for summary judgment along with a Daubert motion to preclude the plaintiff’s expert from testifying. The district court granted the motion and excluded the testimony. The plaintiff also presented an affidavit by the chairman of the defendant company that the product might over a period of time possibly cause a chemical reaction to occur. The chairman further stated that because of this finding the defendant was in the process of re-formulating the product. The district court rejected the affidavit as inadmissible heresay.
The chairman had testified in his deposition that he was also the head of research and development and that he was involved in or aware of all aspects of the development and marketing of the company products. He also testified that he was personally involved in the development of the product in question. The court of appeals pointed out that the chairman’s statements of the problems with the products formula were clearly within the scope of his employment that therefore followed that those statements are non-heresay admissions of a party opponent. Therefore it was error to exclude them from consideration on heresay grounds.