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Sham Affidavits: New 10th Circuit Opinion

The 10th Circuit yesterday decided a Ford F-150 product defect case in which it reversed the trial court’s entry of summary judgment but sent the case back down to the District Court. I love it when courts do that.

The issue in this wrongful death case was whether plaintiffs’ expert could flip his deposition testimony after getting boxed into a causation corner. The 10th Circuit said they could not, adopting a line from the District Court that I really like: “[Plaintiffs] treated the deposition as a ‘take home examination.'”

The issue in this case is similar to the issue that was addressed in Pittman v. Atlantic Realty, a lead paint case I won on summary judgment for the defendant before Baltimore City Circuit Court Judge David B. Mitchell that was reversed by the Maryland Court of Appeals.

I started my argument in Pittman with this line about how the Plaintiffs were delivering their case the way Nathaniel Hawthorne delivered his novels; sending out one chapter at a time. I thought it was so clever. Boy, I was stupid. (And I don’t even think I ever completed the full Cliff Notes of a Hawthorne novel.) I could have saved 10 pages of transcript by saying, “Plaintiffs treated this case like a take home deposition.” Still, I won.

In reversing Judge Mitchell, the Court of Appeals adopted what is probably, in most cases, a pro-plaintiff opinion, declining the federal sham affidavit rule which disallows wholesale recant deposition testimony. Still, I think the defendant had a better side of this argument. You can’t wait until a motion for summary judgment is filed before laying out your case.

You can find the 10th Circuit opinion here.

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  • John Alan Doran

    The “take home final” is a great quote for those faced with a sham affidavit or errata. Unfortunately, and predictably, the Ninth Circuit has its own approach to the sham affidavit. That approach actually requires an evidentiary hearing to determine whether there is, in fact, a sham going on. The Ninth Circuit in the Kennedy v. Allied Mutual case in the 90’s provided a series of examples of where direct contradictions between depo and affidavit would not be a sham. For my money, all the examples sound like shams to me, so it does appear that depositions in the 9th circuit can be, in some cases, take home exams.