## Facts

- Eleven-year-old Jakobe Kirksey died after falling from an escalator at a Sears store.
- Jakobe’s mother, Tyra Kirksey, sued Schindler Elevator Corporation (escalator manufacturer) and Sears, Roebuck & Co. (store owner/operator), asserting wrongful-death claims tied to the escalator area’s safety.
- During summary-judgment briefing, Kirksey submitted materials that her experts said they had reviewed, including articles and other literature.
- Schindler moved to strike those materials from the summary-judgment record on the ground that they were inadmissible hearsay and were being offered for their truth.
- Kirksey responded that experts may rely on such materials in forming opinions, and argued the court could consider them because they were part of what the experts reviewed.

## Issues

1. Whether articles and other literature submitted with the summary-judgment record should be stricken as inadmissible hearsay when offered as substantive proof of defect, safety standards, or causation.
2. Whether Federal Rule of Evidence 703 (permitting experts to rely on otherwise inadmissible material) allows a party to place that underlying material into the summary-judgment record as evidence.
3. Whether, at summary judgment, a party must show that the cited materials are admissible (or can be presented in admissible form at trial), rather than merely showing that an expert considered them.

## Decision

- The court granted Schindler’s motion to strike the inadmissible articles and literature to the extent they were offered for the truth of their contents as summary-judgment evidence.
- The court explained that an expert’s ability to rely on such materials under Rule 703 does not, by itself, make the materials admissible or competent summary-judgment proof.
- The court left intact the parties’ ability to present admissible expert opinions at trial, including opinions informed by materials reasonably relied on in the field, subject to the limits of the evidence rules.

## Legal Principles

- At summary judgment, a court considers only evidence that is admissible or can be presented in admissible form at trial; unsupported hearsay is not competent summary-judgment evidence.
- Hearsay materials (including learned writings) are not admissible for their truth unless a hearsay exception or exclusion applies.
- Federal Rule of Evidence 703 permits an expert to base an opinion on facts or data that are not themselves admissible if professionals in the field reasonably rely on that type of information.
- Rule 703 does not automatically render the underlying sources admissible as substantive evidence; it addresses what an expert may consider, not what the jury (or court) may treat as proof of the matter asserted.
- Submitting inadmissible writings in the record to prove the truth of their contents is improper even if an expert reviewed them; the proponent must either (a) establish admissibility, or (b) rely on admissible testimony explaining the opinion without treating the writings as standalone proof.

## Conclusion

*Kirksey v. Schindler Elevator Corp.*, 2016 U.S. Dist. LEXIS 168260 (S.D. Ala. 2016), addresses evidentiary limits in summary-judgment practice in an escalator wrongful-death case: the court struck hearsay articles and similar literature from the record when offered as substantive evidence, holding that Rule 703 may permit an expert to consider such materials but does not make them admissible proof for summary judgment.


Kirksey v. Schindler Elevator Corp., 2016 U.S. Dist. LEXIS 168260 (2016)