Calling kids of the 70s!  These of you who had been launched to the Muppets on Sesame Avenue and who know Mr. Hooper, Bob, and Maria.  Those that after they hear “one in every of these items isn’t just like the others” know the remainder of the lyrics are “one in every of these items doesn’t belong.  Are you able to inform which factor isn’t just like the others by the point I end this music.”   Again then we had been requested to search out the one completely different coloured or completely different formed merchandise.  As drug and gadget protection attorneys in the present day, we use that talent to search out the one model of plaintiff’s story that simply doesn’t line up.  Like when written discovery responses say one factor, medical information say the identical factor, plaintiff’s deposition testimony can be the identical, however a publish deposition affidavit says one thing utterly completely different.  Nicely girls and boys, that’s what we name a sham affidavit.  And the courtroom 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 go well with in 2021.  Based mostly on the proof adduced in discovery, defendant moved for abstract judgment on the grounds that plaintiff started experiencing issues from the surgical procedure greater than three years earlier than submitting go well with.  That proof included:

• Plaintiff’s Truth Sheet:  first time she skilled signs on account of her IVC filter was July 2013 and he or she first attributed her again ache to her IVC filter inside a yr of implant;
• Plaintiff’s Medical Data:  2015 physician’s observe that again ache radiating down decrease leg started at time of implant 2 years earlier;
• Plaintiff’s Deposition Testimony:  ache began identical month filter was implanted; she realized ache was attributable to filter inside “a couple of yr.”

Id. at *7-9.    In different phrases, plaintiff on quite a few events made admissions that left no query that her 2021 claims had been barred by the statute of limitations.  So, what did plaintiff do after the defendant filed for abstract judgment?  She filed an errata sheet searching for to vary her deposition testimony and an affidavit contradicting her testimony.  That ploy failed as a result of the courtroom noticed it for what it was a “sham affidavit.”

The Tenth Circuit has a three-part take a look at to find out whether or not an affidavit is a sham.  First, was the deponent cross-examined in the course of the earlier testimony?  Plaintiff was not.  However her counsel was current, had the chance to look at her, and selected to not.  Second, is the change to the deposition testimony based mostly on newly found proof?  Once more, the reply isn’t any.  The testimony at problem is plaintiff’s personal recollections and perceptions.  Third, did the sooner testimony mirror confusion which the affidavit makes an attempt to elucidate?  Id.at *5-6. The courtroom discovered plaintiff’s testimony was “not ambiguous” and did “not mirror confusion or uncertainty about wat was being requested.”  Id. at *6.

Plaintiff tried to argue that her “corrections” had been correct as a result of she opted to not take her ache drugs the day of the deposition in order to not impede her capability to reply questions precisely and honestly.  Id. at *8.  Due to this fact, her ache ranges had been excessive and had been distracting her, interfering together with her comprehension of the questions.  However that’s not supported by the testimony itself which was “on level and lucid.”  Id.  If there was any suggestion that plaintiff was confused, plaintiff’s counsel ought to have introduced that out on the time of the deposition, not months later after abstract judgment was filed.  Furthermore, the testimony is in step with each her written discovery responses and her medical information.  Due to this fact, the courtroom concluded that the affidavit and errata had been “not submitted to clear up bona fide confusion, however to materially alter the substantive import of [plaintiff’s] testimony with a purpose to keep away from abstract judgment.”  Id. at *9.  That’s a no-no.

As soon as the courtroom struck the sham affidavit, the one factor left to do was to grant abstract judgment based mostly on the remaining proof which, as famous above, left no room for doubt that the case was time barred.  Similar to on Sesame Avenue, the courtroom routed the story that didn’t belong.  Perhaps its true that each one we wanted to study we realized in kindergarten.