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Here is another post by our blogger in training, Dean Balaes.  This time he explores an interesting decision that applied the “sham affidavit” doctrine to defeat an all-too-common P-side deposition tactic, last minute leading questions (often when the defense has no time for re-cross) designed to generate self-serving answers that contradict prior damaging testimony.


The great philosopher Dolly Parton once remarked, “If you want the rainbow, you gotta put up with the rain.”  All attorneys want the rainbow.  That is to say, attorneys want to win unequivocally for their clients, but great expectations often meet humbling realities.  Any lawyer who has taken a deposition knows that clients sometimes say the most darndest, case-destroying things.  As advocates, attorneys may feel called to stave off the rain for the rainbow by soliciting self-serving testimony after the fact in the hope of salvaging their clients’ cases.  In these moments, the best advocacy may well be knowing when to do nothing at all.  Enter yet another post on the sham affidavit doctrine:

[A] party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.

Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007) (quoting Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004)).

To use yet another idiom, this doctrine can be summed up as “pulling the rabbit out of the hat.”

This is exactly what the plaintiff tried to do in Kennedy v. Ethicon, Inc., 2020 WL 4050459 (E.D. Pa. July 20, 2020), a pelvic mesh case.  The issues in Kennedy revolved around both parties’ realizing that the case suffered from glaring statute of limitations problems – but where there is a rule, there is an exception.  The “discovery rule” was one such loophole.  Id. at *7.  This exception “is premised on the concept that where the existence of an injury is not apparent or where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discoverable by the exercise of reasonable diligence.”  Id.

With this background, one can understand why, at deposition, both parties were trying to identify when exactly the plaintiff/witness “gained knowledge of the relationship between her injuries and the pelvic mesh.”  Id. at *14.  The witness originally stated “in no uncertain terms” that she knew her injuries arose because of the pelvic mesh implant in “March, April and May 2011[.]”  Id.  On this point, it cannot be understated how certain the witness was; for example, she testified that: (1) “she observed first hand the damage her mesh implant was causing…;” (2) “as a result of this observation, she attributed her injuries to the pelvic mesh;” and (3) “more specifically, she attributed her injuries to a defect in the mesh.”  Id. at *13.  Why, one might ask?  The witness further testified that she was able to make these observations (and judgments) at the doctor’s office because “they had a camera” above her head that let her see for herself.  Id.

At this point, blog readers have probably figured out that, regardless of whether the witness learned of her injuries in “March, April and May 2011” or not, the defendants had the case won on statute of limitations grounds.  The Court’s opinion does not address it, but one can reasonably assume that the plaintiff’s counsel knew they were caught in the rain without an umbrella, so to speak, but still wanted to rely on the “discovery rule” exception.

Thus, at the “tail end” of her deposition, the witness’s own attorneys questioned her, posing “self-serving” questions to their client and obtaining statements that directly contradicted her previous testimony.  Id.  Contrary to the witness’s original statement that she knew of her injuries in “March, April and May 2011,” the other side adduced self-serving testimony from the witness that she only became aware of her injuries in September 2011 or “early 2012.”  Id.

In a vacuum it might seem that, based on the plaintiff’s two contradictory lines of testimony, there was a material fact in dispute.  Fast-forwarding to the defendant’s motion for summary judgment, however, the Court declined to look at the deposition in a vacuum and, therefore, did not buy the witness’s “self-serving” testimony.  Id.  Relying on the “logic of the sham affidavit doctrine” for guidance, the Court stated that “Plaintiffs must, at a minimum, make some attempt to explain the apparent contradiction in [the witness’s] testimony for the Court to consider the latter, contradictory portions of it.”  Id. at *15.

This is why Kennedy is of interest – the sham affidavit doctrine is not often applied to oral deposition testimony.  Our readers should make note of that, because testimonial u-turns by plaintiffs at the “tail end” of depositions, induced by counsel, are hardly unknown, and as Kennedy demonstrates, the “sham affidavit” rationale is one way of curtailing such questionable tactics.

In Kennedy, the best “attempt” offered by counsel at explaining their client’s contradictions was not very good, being a vague set of assertions that the defendants were “cherry picking” portions of the deposition transcript and “[t]o the extent there is contradiction in the evidence regarding timeliness, Pennsylvania law makes clear that this issue should be decided by a jury[.]”  Id.

At the core of plaintiff’s argument in Kennedy is failure to come to grips with Justice Souter’s recommendation that lawyers understand “confession and avoidance.”  Here is an example of confession and avoidance:  Counsel could have said, “Yes, your honor, there is a contradiction, but I will tell you why it does not make a bit of difference in this case.”  Notice, however, that in Kennedy counsel did not confess to the specific contradiction at issue.  They went straight to the avoidance portion of Justice Souter’s recommendation.  One could hazard a guess that use of the adjective “some” indicates that the Court in Kennedy set a relatively low bar for counsel to hurdle.  Id.  But for lack of a “meaningful explanation,” the Court declined “to credit or consider” the plaintiff’s tail-end contradictory statements.  Id.  Summary judgment granted.  Id.

Putting aside Kennedy, it is difficult to discuss the sham affidavit doctrine without acknowledging that doctrine is invoked when there is an appearance of legal hanky-panky.  A lawyer’s job is to know more than the client.  During depositions, it is common (and expected) for witnesses to feel scared, fumble their words, make contradictions, and be confused.  A witness often does not know how the deposition testimony will be used.  Attorneys, however, should maintain a higher standard of conscientiousness at depositions.  This means, among other things, preparing their witnesses so that their answers do not counter their overall legal strategy, or else developing some other strategy consistent with what the witnesses believe to be true.

In those situations, it is incumbent on attorneys to avoid muddying the waters (and destroying a witness’s credibility) by encouraging the witness to directly contradict him/herself under oath.  Arguing an “issue of fact” from the irreconcilable testimony of the same witness is rarely a winning strategy, and could even be sanctionable.  In other words, an attorney’s questions should not attempt to gin up a dispute, especially when prior testimony blatantly contradicts the latter statement.

In sum, one can read Kennedy’s expansion of the sham affidavit doctrine to oral testimony as a shot across the bow to combat attorneys seeking to manufacture material facts in dispute from a single witness’s contradictions.  Sometimes, a likely story is exactly that.