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.
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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...
