Calling children of the 70s!  Those of you who were introduced to the Muppets on Sesame Street and who know Mr. Hooper, Bob, and Maria.  Those who when they hear “one of these things is not like the others” know the rest of the lyrics are “one of these things doesn’t belong.  Can you tell which thing is not like the others by the time I finish this song.”   Back then we were asked to find the one different colored or different shaped item.  As drug and device defense lawyers today, we use that skill to find the one version of plaintiff’s story that just doesn’t line up.  Like when written discovery responses say one thing, medical records say the same thing, plaintiff’s deposition testimony is also the same, but a post deposition affidavit says something completely different.  Well boys and girls, that is what we call a sham affidavit.  And the court 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 suit in 2021.  Based on the evidence adduced in discovery, defendant moved for summary judgment on the grounds that plaintiff began experiencing complications from the surgery more than three years before filing suit.  That evidence included:

• Plaintiff’s Fact Sheet:  first time she experienced symptoms as a result of her IVC filter was July 2013 and she first attributed her back pain to her IVC filter within a year of implant;
• Plaintiff’s Medical Records:  2015 doctor’s note that back pain radiating down lower leg began at time of implant 2 years earlier;
• Plaintiff’s Deposition Testimony:  pain started same month filter was implanted; she realized pain was caused by filter within “about a year.”

Id. at *7-9.    In other words, plaintiff on numerous occasions made admissions that left no question that her 2021 claims were barred by the statute of limitations.  So, what did plaintiff do after the defendant filed for summary judgment?  She filed an errata sheet seeking to change her deposition testimony and an affidavit contradicting her testimony.  That ploy failed because the court saw it for what it was a “sham affidavit.”

The Tenth Circuit has a three-part test to determine whether an affidavit is a sham.  First, was the deponent cross-examined during the earlier testimony?  Plaintiff was not.  But her counsel was present, had the opportunity to examine her, and chose not to.  Second, is the change to the deposition testimony based on newly discovered evidence?  Again, the answer is no.  The testimony at issue is plaintiff’s own recollections and perceptions.  Third, did the earlier testimony reflect confusion which the affidavit attempts to explain?  Id.at *5-6. The court found plaintiff’s testimony was “not ambiguous” and did “not reflect confusion or uncertainty about wat was being asked.”  Id. at *6.

Plaintiff tried to argue that her “corrections” were proper because she opted not to take her pain medications the day of the deposition so as not to impede her ability to answer questions accurately and truthfully.  Id. at *8.  Therefore, her pain levels were high and were distracting her, interfering with her comprehension of the questions.  But that is not supported by the testimony itself which was “on point and lucid.”  Id.  If there was any suggestion that plaintiff was confused, plaintiff’s counsel should have brought that out at the time of the deposition, not months later after summary judgment was filed.  Moreover, the testimony is consistent with both her written discovery responses and her medical records.  Therefore, the court concluded that the affidavit and errata were “not submitted to clear up bona fide confusion, but to materially alter the substantive import of [plaintiff’s] testimony in order to avoid summary judgment.”  Id. at *9.  That’s a no-no.

Once the court struck the sham affidavit, the only thing left to do was to grant summary judgment based on the remaining evidence which, as noted above, left no room for doubt that the case was time barred.  Just like on Sesame Street, the court routed the story that didn’t belong.  Maybe its true that all we needed to learn we learned in kindergarten.