Calling kids of the 70s! These of you who have been launched to the Muppets on Sesame Avenue and who know Mr. Hooper, Bob, and Maria. Those that once they hear “one in all this stuff shouldn’t be just like the others” know the remainder of the lyrics are “one in all this stuff doesn’t belong. Are you able to inform which factor shouldn’t be just like the others by the point I end this tune.” Again then we have been requested to search out the one completely different coloured or completely different formed merchandise. As drug and machine protection legal professionals at this time, we use that ability to search out the one model of plaintiff’s story that simply doesn’t line up. Like when written discovery responses say one factor, medical data say the identical factor, plaintiff’s deposition testimony can be the identical, however a publish deposition affidavit says one thing fully completely different. Effectively girls and boys, that’s what we name a sham affidavit. And the courtroom in Stanford v. C.R. Bard, Inc., was not having it. 2023 U.S. Dist. LEXIS 231386 (D. Col. Nov. 9, 2023).
Plaintiff had an IVC filter implanted in 2013 and filed swimsuit in 2021. Primarily based on the proof adduced in discovery, defendant moved for abstract judgment on the grounds that plaintiff started experiencing issues from the surgical procedure greater than three years earlier than submitting swimsuit. That proof included:
- Plaintiff’s Reality Sheet: first time she skilled signs on account of her IVC filter was July 2013 and he or she first attributed her again ache to her IVC filter inside a 12 months of implant;
- Plaintiff’s Medical Data: 2015 physician’s be aware that again ache radiating down decrease leg started at time of implant 2 years earlier;
- Plaintiff’s Deposition Testimony: ache began similar month filter was implanted; she realized ache was attributable to filter inside “a few 12 months.”
Id. at *7-9. In different phrases, plaintiff on quite a few events made admissions that left no query that her 2021 claims have been barred by the statute of limitations. So, what did plaintiff do after the defendant filed for abstract judgment? She filed an errata sheet in search of to alter her deposition testimony and an affidavit contradicting her testimony. That ploy failed as a result of the courtroom noticed it for what it was a “sham affidavit.”
The Tenth Circuit has a three-part take a look at to find out whether or not an affidavit is a sham. First, was the deponent cross-examined throughout the earlier testimony? Plaintiff was not. However her counsel was current, had the chance to look at her, and selected to not. Second, is the change to the deposition testimony based mostly on newly found proof? Once more, the reply isn’t any. The testimony at situation is plaintiff’s personal recollections and perceptions. Third, did the sooner testimony mirror confusion which the affidavit makes an attempt to elucidate? Id.at *5-6. The courtroom discovered plaintiff’s testimony was “not ambiguous” and did “not mirror confusion or uncertainty about wat was being requested.” Id. at *6.
Plaintiff tried to argue that her “corrections” have been correct as a result of she opted to not take her ache medicines the day of the deposition in order to not impede her means to reply questions precisely and honestly. Id. at *8. Subsequently, her ache ranges have been excessive and have been distracting her, interfering together with her comprehension of the questions. However that’s not supported by the testimony itself which was “on level and lucid.” Id. If there was any suggestion that plaintiff was confused, plaintiff’s counsel ought to have introduced that out on the time of the deposition, not months later after abstract judgment was filed. Furthermore, the testimony is in keeping with each her written discovery responses and her medical data. Subsequently, the courtroom concluded that the affidavit and errata have been “not submitted to clear up bona fide confusion, however to materially alter the substantive import of [plaintiff’s] testimony so as to keep away from abstract judgment.” Id. at *9. That’s a no-no.
As soon as the courtroom struck the sham affidavit, the one factor left to do was to grant abstract judgment based mostly on the remaining proof which, as famous above, left no room for doubt that the case was time barred. Similar to on Sesame Avenue, the courtroom routed the story that didn’t belong. Perhaps its true that every one we would have liked to be taught we discovered in kindergarten.
