D.C. Circuit Determines Plaintiff Fails to Present Genuine Issue of Material Fact; Does Not Rule on Admissibility of Supplemental Affidavits

Per Galvin v. Eli Lilly and Co. , 488 F.3d 1026 (D.C.Cir. Jun 08, 2007) (NO. 05-7134):

A party opposing summary judgment may submit affidavits in support of its position provided such affidavits meet the requirements of Federal Rule of Civil Procedure 56(e). Virtually every circuit has adopted a form of the so-called "sham affidavit rule," which precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the "shifting party can offer persuasive reasons for believing the supposed correction" is more accurate than the prior testimony. Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991); see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (collecting cases). See generally 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 2726, at 448-52 (3d ed.1998). FN* If the supplemental affidavit does not contradict but instead clarifies the prior sworn statement, then it is usually considered admissible. See, e.g., Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1258 (10th Cir.2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1296 n. 14 (D.C.Cir.1998) (en banc); Wright, Miller, & Kane, supra.

FN* Although we have not formally addressed the standard applicable to review of a district court decision to treat an affidavit as a sham, Pyramid suggests the determination is part of our overall review of summary judgment and accordingly subject to de novo review. See 924 F.2d at 1123-24. Similarly, the Second Circuit has implied this determination is a matter of law, while the First, Sixth, Seventh, Tenth, and Eleventh Circuits have treated this issue as an evidentiary one subject to review for abuse of discretion. Compare Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir.1998), with Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 21 (1st Cir.2000); Briggs v. Potter, 463 F.3d 507, 512-13 (6th Cir.2006); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055-56 (7th Cir.2000); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir.2002); Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1342-43 (11th Cir.2000).

The district court refused to consider the supplemental Keller and Waltrip affidavits on the ground it was improper for the affiants to "recharacterize" their prior testimony after the close of discovery. We agree that "parties' opportunism should not readily imperil summary judgment," Pyramid, 924 F.2d at 1124; see also Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 756 (7th Cir.1998) ("[A] deposition is the time for the plaintiff to make a record capable of surviving summary judgment-not a later filed affidavit"), and also recognize that a district court has broad discretion with respect to discovery, see Hussain v. Nicholson, 435 F.3d 359, 363 (D.C.Cir.2006). A supplemental affidavit filed by an interested party should not be deemed inadmissible solely because it was filed in response to a motion for summary judgment, however; the important considerations are whether the affidavit contradicts a prior sworn statement without justification or the filing party breached its obligations in discovery. See Fed. R. Civ. P. 37.

Galvin contends the supplemental affidavits do not contradict but merely clarify the affiants' prior statements. Because we conclude there would not be a genuine dispute over a material fact even if the supplemental affidavits were admitted, we find it unnecessary to rule upon their actual admissibility. Were it otherwise, we would have to determine whether these affidavits contradict or clarify prior statements and possibly also whether the sham affidavit rule should be applied to a non-party witness.