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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