This post is neither written nor reviewed by the Dechert side of the Blog.

The recent decision in McLaughlin v. Bayer Essure, Inc., 2020 WL 1625549 (E.D. Pa. April 2, 2020), is massive (28 Westlaw pages) and devoted largely to review of a special master’s determination of individualized statute of limitations issues for some fifty individual plaintiffs.  Id. at *1.  Those are precisely the sort of issues that we don’t blog about.  But amongst all the plaintiff-specific discussions is an important practice point:

The sham affidavit rule can apply to attempts to contradict not only prior deposition testimony, but prior written discovery as well.

We’ve blogged about the sham affidavit rule a number of times.  Briefly, the rule is that:

[A] 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.

Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 805-06 (1999) (string citation omitted).  See also Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (generally viewed as the seminal case on sham affidavits).

In McLaughlin, the MDL court had already decided statute of limitations issues as they pertained to “twelve exemplar plaintiffs.”  See McLaughlin v. Bayer Essure, Inc., 2019 WL 1382710 (E.D. Pa. March 27, 2019).  Using those rulings as a “framework,” the defendant sought summary judgment on statute of limitations grounds against another 50 plaintiffs based on the answers they had given in their “Plaintiff Fact Sheets.”  Id. at *1, 4.  Suddenly, those fact sheets, which were supposed to substitute for other forms of discovery, weren’t so factual any more.  In “response . . . numerous Plaintiffs submitted Declarations” that contradicted what they had said in their fact sheets.  Id. at *4.  The special master refused to apply the sham affidavit rule to plaintiffs’ mass disregard of their own sworn fact sheets, id., but the court rejected this recommendation.

Importantly, there was “no dispute . . . that the [fact sheets] answers are the equivalent of interrogatory responses and, thus, we treat [them] as interrogatory responses for purposes of the sham affidavit rule.”  Id. at *4 n.1 (citation omitted).  The MDL case management order governing fact sheets stated that “completed [fact sheets] shall be considered responses to interrogatories pursuant to Rule 33 of the Federal Rules of Civil Procedure and shall be governed by the standards applicable to written discovery.  McLaughlin v. Bayer Essure, Inc., 2019 WL 1382710, at *25 n.29 (E.D. Pa. March 27, 2019) (quoting prior order).  See also McLaughlin v. Bayer Essure Inc., 2019 WL 7593834 (E.D. Pa. Dec. 27, 2019) (addressing fact sheet verification requirement), adopted, 2020 WL 265565 (E.D. Pa. Jan. 15, 2020).  The court rejected the plaintiffs’ attempt to limit the sham affidavit rule to attempts to change oral deposition testimony:

[W]e cannot conclude that the sham affidavit rule is strictly limited to circumstances in which an affidavit or declaration contradicts prior deposition testimony and never applies to circumstances in which the affidavit or declaration contradicts a prior interrogatory answer.

McLaughlin, 2020 WL 1625549, at *6.

McLaughlin did not cite any prior precedent that was unambiguously on one side or the other of this question.  Plaintiffs (typically) cited no precedent in support of their narrowing argument.  The defendants’ sham affidavit cases, Zavala v. Wal Mart Stores, Inc., 691 F.3d 527 (3d Cir. 2012), and Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703 (3d Cir. 1988), did involve contradiction of written statements, but not exclusively, and did not focus on the issue.  McLaughlin, 2020 WL 1625549, at *5-6.

We thought we’d take a look.

It turns out that the Ninth Circuit has long approved the broader application of the sham affidavit rule.  “The [sham affidavit] rule applies to conflicts between affidavits and interrogatory responses as well as deposition testimony.”  School Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993).

Courts most commonly apply the sham affidavit rule to cases where a party submits an affidavit which contradicts the party’s sworn deposition testimony.  But the rule’s application has extended beyond depositions [and] . . . applies to conflicts between affidavits and interrogatory responses as well.

Tarleton LLC v. State Farm Fire & Casualty Co., 2014 WL 2126567, at *6 (D. Or. May 21, 2014), aff’d, 671 F. Appx. 505 (9th Cir. 2016).  Accord Gonzalez v. Ford Motor Co., 2019 WL 6122554, at *4 (C.D. Cal. Oct. 23, 2019) (“Plaintiff cannot create an issue of fact at summary judgment by contradicting his prior sworn deposition testimony and interrogatory responses.”); Whitsitt v. Amazon.com, 2019 WL 2715611, at *3 (E.D. Cal. June 28, 2019) (“the ‘sham affidavit’ . . . rule . . . applies to conflicts between affidavits and interrogatory responses as well as deposition testimony”) (citation and quotation marks omitted); Hesghiaian v. Bank of America, N.A., 2019 WL 3000649, at *3 (C.D. Cal. May 31, 2019) (“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony” and ““The rule also applies to conflicts between affidavits and interrogatory responses.”) (citations and quotation marks omitted); Estrada v. US Bank, N.A., 2018 WL 8785205, at *3 (C.D. Cal. Nov. 26, 2018) (“[b]ecause this contradicts his prior interrogatory response, the sham affidavit rule may exclude his declaration”); Dubrin v. County of San Bernardino, 2017 WL 4339645, at *2 (C.D. Cal. Sept. 29, 2017) (“a party may not generate a declaration with ‘helpful facts’ that directly contradict prior harmful evidence in the same party’s own interrogatory responses or deposition testimony”) (emphasis original); Robles v. Agreserves, Inc., 158 F. Supp.3d 952, 981 (E.D. Cal. 2016) (“The ‘sham declaration’ rule applies to declarations that contradict not only prior deposition testimony, but also prior sworn interrogatory responses.”); Board of Trustees of the Ken Lusby Clerks & Lumber Handlers Pension Fund v. Piedmont Lumber & Mill Co., 132 F. Supp. 3d 1175, 1183 n.6 (N.D. Cal. 2015) (quoting Hilderman); Pinnacle Fitness & Recreation Management, LLC v. Jerry & Vickie Moyes Family Trust, 2012 WL 694471, at *2 (S.D. Cal. March 1, 2012) (“sham affidavit rule precluded [defendant] from creating a genuine dispute of material fact by contradicting its prior interrogatory answers”); Siskiyou Buckle Co. v. GameWear, Inc., 2011 WL 5999869, at *4 (D. Or. Nov. 30, 2011) (“Under the ‘sham affidavit’ rule, a party cannot create a triable issue of fact by introducing a sham affidavit that contradicts his prior deposition testimony or interrogatory responses.”); Premier Displays & Exhibits v. Cogswell, 2009 WL 8623588, at *9 (C.D. Cal. Dec. 23, 2009) (plaintiff’s “declaration, . . . which conflicts interrogatory responses . . ., is a sham affidavit”); Hilderman v. Enea TekSci, Inc., 2008 WL 2263058, at *1 (S.D. Cal. June 2, 2008) (“Under the ‘sham affidavit’ rule, a party cannot create a triable issue of fact by introducing a sham affidavit that contradicts his prior deposition testimony or interrogatory responses.”); Tudor Delcey v. A-Dec, Inc., 2008 WL 123855, at *14 (D. Or. Jan. 9, 2008) (“This rule . . . applies to conflicts between affidavits and interrogatory responses as well as deposition testimony.”); Lanard Toys Ltd. v. Novelty Inc., 511 F. Supp 2d 1020, 1034 (C.D. Cal. 2007) (“A party may not create an issue of genuine fact by submitting affidavits that conflict with prior answers to interrogatories.”); American Express Travel Related Services Co. v. D & A Corp., 2007 WL 3217565, at *17 (E.D. Cal. Oct. 29, 2007) (the rule “that a party should not be able to substitute an affidavit alleging helpful facts for earlier deposition testimony harmful to its case in order to avoid summary judgment . . . applies to conflicts between affidavits and interrogatory responses as well”); Rosales v. City of Bakersfield, 2007 WL 1847628, at *29 (E.D. Cal. June 27, 2007) (same as Amex); Gordon v. Virtumundo, Inc., 2007 WL 1459395, at *14 (W.D. Wash. May 15, 2007) (“the general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony . . . applies to interrogatory responses”) (citation and quotation marks omitted), aff’d, 575 F.3d 1040 (9th Cir. 2009); Foster Poultry Farms, Inc. v. SunTrust Bank, 2007 WL 1113529, at *3 (E.D. Cal. April 13, 2007) (same as Amex); Cruz-Manjarrez v. City of Portland, 2006 WL 3931459, at *9 (D. Or. Jan. 12, 2007) (same as Tudor); Kibbee v. City of Portland, 1999 WL 1271868, at *4 (D. Or. Dec. 23, 1999) (sham affidavit “rule . . . applies to conflicts between affidavits and interrogatory responses as well”).

So has the Second Circuit.  In Reisner v. General Motors Corp., the court “disregarded those factual claims made by [plaintiff] after [defendant] moved for summary judgment, where those claims contradict statements made previously by [plaintiff] at his deposition, in his affidavits, and in response to defendants’ interrogatories.”  671 F.2d 91, 93 (2d Cir. 1982).

[A] party cannot escape summary judgment . . . by submitting self-serving affirmations that contradict prior testimony asserted in depositions, interrogatories, or affidavits.  Here, [defendant] has submitted two declarations, which at times directly contradict . . . prior sworn discovery responses.  Where the factual assertions in [these] declarations are in direct conflict with Defendants’ earlier discovery responses, and are not supported by other evidence, the Court has disregarded those assertions.

Shantou Real Lingerie Manufacturing Co. v. Native Group. International, Ltd., 401 F. Supp.3d 433, 438 (S.D.N.Y. 2018) (citing Reisner, other citations omitted).  Accord Intimate Bookshop v. Barnes & Noble, Inc., 2003 WL 22251312, at *9 (S.D.N.Y. Sept. 30, 2003) (disregarding declarations that “inexplicably contradict statements [plaintiff] made in its complaint, its answers to defendants’ interrogatories, through its experts’ reports and in deposition testimony”); Mazzuocola v. Thunderbird Products Corp., 1995 WL 311397, at *9 (E.D.N.Y. May 16, 1995) (“Factual assertions made in an affidavit submitted in opposition to a motion for summary judgment may be disregarded if those assertions are contradicted by earlier statements in response to interrogatories.”).

The Seventh Circuit has taken the same position in a footnote.  In Donohoe v. Consolidated Operating & Production Corp., the court noted:

The district court did not consider this affidavit, because it contradicted [the party’s] earlier responses to an interrogatory. . . .  The court’s refusal to consider the affidavit was appropriate.

982 F.2d 1130, 1136 n.4 (7th Cir. 1992) (citations omitted).  Accord Gates v. Board of Education of City of Chicago, 2017 WL 4310648, at *9 (N.D. Ill. Sept. 28, 2017) (citing Donohue as establishing that “[c]ourts have extended this rule to disregard affidavits that contradict interrogatory answers”), aff’d in part and rev’d in part on other grounds, 916 F.3d 631 (7th Cir. 2019); Viasystems Technologies Corp., LLC v. Landstar Ranger, Inc., 2011 WL 2912763, at *3 (E.D. Wis. July 15, 2011) (“The ‘sham affidavit’ rule prohibits litigants from creating sham issues of fact with affidavits that contradict their prior sworn testimony, . . ., such as answers to interrogatories.”).

The Fourth Circuit apparently reached the same result in a short per curiam opinion:

[Defendant] has presented no evidence . . . apart from his own bald and self-serving allegations, which contradict his previous response to an interrogatory and are insufficient to avoid summary judgment.

Angel Medical Center, Inc. v. Abernathy, 1 F. Appx. 217, 218 (4th Cir. 2001) (citation omitted).

District courts in the Sixth Circuit have followed a similar rule.

While [most] cited cases dealt with affidavits that contradict prior deposition testimony, “[t]he sham affidavit rule precludes [a party] from creating a genuine dispute of material fact by contradicting its prior interrogatory answers.”  Indeed, the “sham affidavit” rule may be even more appropriate where a party submits contradictory interrogatory responses because those responses, unlike deposition answers, are generally provided after considerable thought and drafted with the assistance of counsel.

Thompson v. Bruister & Assocs., Inc., 2013 WL 1092218, at *5 (M.D. Tenn. March 15, 2013) (quoting Dunavant v. Frito Lay, 2013 WL 816673 at *4 (M.D. Tenn. March 5, 2013)).

In the Eleventh Circuit, an affidavit was stricken due to its “inherent inconsistency” with both the plaintiff’s “sworn response to the interrogatory” and the plaintiff’s “initial complaint.”  Baggett v. Rehau, Inc., 2009 WL 10674316, at *5 n.9 (Mag. N.D. Ala. Oct. 15, 2009), adopted, 2010 WL 11530355 (N.D. Ala. Jan. 21, 2010), aff’d, 411 F. Appx. 280 (11th Cir. 2011).  So make sure MDL plaintiffs have signed and verified their complaints, too.

In the District of Columbia Circuit, Jones v. D.C. Water & Sewer Authority, 2016 WL 659666 (D.D.C. Feb. 18, 2016), followed the Ninth Circuit’s Multnomah decision, and held “[w]ith [plaintiff] having failed to offer any reason why his post-deposition declaration should be credited over his sworn interrogatory responses, the Court concludes that it is insufficient to bolster his allegations about what protected activity.”  Id. at *9.

The sham affidavit rule has been applied to bar statements conflicting with prior sworn written statements in state court as well  The Texas Supreme Court explicitly applied the rule to contradictions of prior written statements made under penalty of perjury:

Other sworn evidence also contradicts [plaintiff’s] affidavit. . . .  These documents were made under the penalties of perjury, and they contradict [the] affidavit. . . .  Under these circumstances, the district court did not abuse its discretion by relying on the tax documents as the equivalent of sworn statements for purposes of the sham affidavit rule.

Lujan v. Navistar, Inc., 555 S.W.3d 79, 90-91 (Tex. 2018) (citations omitted).  See Williams v. Precision Coil, Inc., 459 S.E.2d 329, 337 n.12 (W.Va. 1995) (“when a party has given clear answers to unambiguous questions during a deposition or in answers to interrogatories, he does not create a trialworthy issue and defeat a motion for summary judgment by filing an affidavit that clearly is contradictory”); Taylor v. Richard Stockton College, 2019 WL 1111417, at *1 (N.J. Super. App. Div. March 11, 2019) (plaintiff “also failed to explain why he did not raise this contention in his complaint or his answers to interrogatories.  Under these circumstances, we treat plaintiff’s subsequent certification for what it was, a ‘sham affidavit’ that contradicted his earlier certified statements.”); Meco, Inc. v. Township of Freehold, 2011 WL 1376687, at *6 (N.J. Super. App. Div. April 13, 2011) (applying sham affidavit rule to declaration that contradicted interrogatory answer).  Finally, in a mass tort context a Delaware trial court held:

The sham affidavit doctrine fits squarely within this notion of summary judgment practice. . . .  [I]t is not too much to expect of a plaintiff that he will be prepared to offer definitive testimony in interrogatories or at deposition regarding the factual bases for his claims against specific defendants.  Absent extraordinary circumstances, a plaintiff should be bound by his sworn testimony.

In re Asbestos Litigation, 2006 WL 3492370, at *4 (Del. Super. Nov. 28, 2006) (disregarding conflicting affidavit regarding “product nexus”).