Summary judgment isn’t normally available for credibility issues. During the “summary judgment trilogy” of 1986, the Supreme Court stated, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Or, more recently, “[a] district court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented.” Schlup v. Delo, 513 U.S. 298, 332 (1995). But every rule has its exceptions for extreme circumstances.
The key word from Schlup is “generally,” and in today’s case, Gill v. Teva Respiratory, LLC, 2017 WL 6614228 (D. Conn. Dec. 27, 2017), the plaintiff’s own testimony was simply too unbelievable and contrary to all other evidence (and common sense) to defeat summary judgment. The plaintiff claimed to have inhaled a thumb tack – that’s right, a thumb tack – from the defendant’s allegedly sealed medical device (an inhaler). She sued both the maker of the inhaler and the intermediate seller (a pharmacy). Both received summary judgment.
There were a lot of problems with her story. For one thing, after she inhaled the thumb tack, she didn’t seek medical attention for “several days,” despite the problem being serious enough to require surgery. Id. at *1. But that wasn’t even the basis for the ruling.
- Plaintiff claimed that she put the product in her car’s “glove compartment” for about a “week” before ever using it, leaving it in its original packaging. Id. at *1.
- The manufacturer produced extensive “evidence about its manufacturing and inspection process to preclude any inference that it could have allowed the thumbtack to enter the inhaler.” Id.; see also id. at *2 (further describing process).
- Plaintiff’s medical records refuted her testimony, indicating that she had kept the product “in her purse” and “not [in] her glove compartment.” Id. at *1.
- While in her purse, the product’s “cap had fallen off,” and “her children had put the thumbtack inside the inhaler.” Id.
- While plaintiff claimed she had used the product only once, the product’s “mechanical counter” indicated that it had been used 34 times. Id. at *2.
In response, plaintiff did nothing. She “did not conduct any discovery.” She “neither disputed defendants’ evidence” nor submitted any opposing “statement of material facts” as the rules required. Id. Plaintiff’s lassitude resulted in the defendant’s factual statement being “deem[ed]” “true.” Id. Most importantly, plaintiff “had no explanation for the statements as reported in her medical records.” Id. at *2.
Thus, the facts about manufacturer’s quality control systems were deemed true, the plaintiff’s testimony was refuted by her own medical records, and plaintiff offered no explanation for anything. “It is not simply that plaintiff has failed to rebut defendants’ evidence” about its quality control; it was the weakness of plaintiff’s own testimony. Id. at *3.
This situation was sufficiently extreme to support entry of summary judgment on the basis of the plaintiff’s testimony offered in support of an injury from an alleged defect in the device being incredible and unworthy of belief.
[I]n rare circumstances a court must necessarily undertake some evaluation of a plaintiff’s credibility at the summary judgment stage. . . . [W]here the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any “genuine” issues of material fact, without making some assessment of the plaintiff’s account.
Id. at *2 (quoting Rojas v. Roman Catholic Dioceses, 660 F.3d 98, 105 (2d Cir. 2011)). “[T]here may be certain extraordinary cases, where ‘the facts alleged are so contradictory that doubt is cast upon their plausibility, [for which] the court may pierce the veil of the complaint’s factual allegations and dismiss the claim.” Id. (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005)).
Those “rare circumstances” were present in Gill:
[P]laintiff’s own account of the facts − which is the only evidence relied on by plaintiff to sustain her claim − is rife with irreconcilable contradiction. Plaintiff has no explanation for the multiple medical notes . . . reflecting that the inhaler was in her purse with the cap off and accessible to her children, rather than in its original packaging in her glove compartment as plaintiff claimed. Nor does plaintiff have any explanation for why the inhaler’s dosage count reflected its prior use 34 times, rather than her initial use of a new inhaler as plaintiff self-servingly claimed.
Id. at *3. Summary judgment was therefore appropriate, since “the manifest contradictions and discrepancies in plaintiff’s own account, no reasonable jury could conclude that the thumbtack entered the inhaler at any time that the inhaler was in the possession or control of either one of the defendants.” Id.
The alternative – letting juries decide every “credibility” dispute, no matter how far-fetched of fanciful the plaintiff’s testimony might be – was not sound jurisprudence. To “require district courts to allow parties to defeat summary judgment simply by testifying to the allegations in their pleadings would license the mendacious to seek windfalls in the litigation lottery.” Id.
Having seen far too many “mendacious” plaintiffs obtain “windfalls” in “litigation lottery” settlements, we could not agree more.