In another relatively old decision – pre- Cleveland, so the sham affidavit doctrine did not yet have the Supreme Court’s endorsement − a plaintiff-affiliated fact witness (the plaintiff’s mother) had her testimony excluded in Martin v. “Consequently this affidavit did not create a genuine issue of fact and the district court could grant summary judgment.” Id. The plaintiff was not “confused” while testifying, and “made no corrections to her statements” when the transcript of her deposition was made available. As one of the opinions that created the sham affidavit doctrine, Miller began with the proposition that “arties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions.” Id. 1985) (applying Indiana law), where the plaintiff, after testifying that several of her treaters told her that her injuries were caused by the product, submitted an affidavit denying everything once hit with a summary judgment motion raising the statute of limitations. The oldest decision we’ve found applying the sham affidavit doctrine in a prescription medical product liability litigation is Miller v. 2002) (excellent general citator for sham affidavit decisions).Įnter the sham affidavit doctrine (sometimes elevated to the status of a “rule”), now with Supreme Court imprimatur, precluding creation of “genuine” factual issues by a plaintiff (or some other essential witness) simply contradicting his or her own previous sworn testimony.

Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (generally viewed as the seminal case on sham affidavits) (applying New York law) Shelcusky v. See generally, e.g., Perma Research & Development Co. party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity. The Court endorsed the analogous doctrine that: Instead, they “must proffer a sufficient explanation” of such discrepancies. Plaintiffs, the Court held, “cannot simply ignore the apparent contradiction that arises” from taking apparently irreconcilable positions. Policy Management Systems Corp., 526 U.S. Almost 20 years ago, the United States Supreme Court addressed the same situation where a plaintiff, having filed for disability (requiring her to swear she was “totally disabled”), and then later filed an age discrimination suit (the matter before the Court), in which she had to prove she was a “qualified person.” Cleveland v. Plaintiff claims that, now, at minimum, the contradictory testimony creates a “fact issue” and the “credibility” of the two irreconcilable versions of for the jury to decide.įirst of all, it’s happened before – many times. The plaintiff’s response, however, includes an affidavit from the same witness already deposed at length – and the affidavit directly contradicts the witness’ prior testimony on which the motion was based. Or else it’s the plaintiff admitting that s/he only took the version of the drug manufactured by a different company. The result is rock-solid deposition testimony that the prescribing physician never read that allegedly inadequate warning. These days, not so much….īut what about in prescription medical product liability litigation? Say, for example, one of our defense colleagues absolutely nailed it at a deposition. As others have pointed out, Hurricane Sandy brought out similar sentiments.

that said, ‘Let the Yankee Bastards Freeze in the Dark.’” Id. For example, as the late, great Molly Ivins pointed out in “Molly Ivins Can’t Say That, Can She?”, back during the energy crisis of the mid-to-late 1970s, folks down in Texas “did put bumper stickers on their pickups. We’re quite familiar with people who say one thing, when they think that’s in their interest, and later when circumstances change, say something quite different.

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