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This is Not a Sham: Fully Appreciating the “Sham Affidavit Doctrine” Can Help to Preserve Error

April 9, 2015 1:18 PM | Posted by Nancy C. Ciampa and Michael D. Sloan | Print this page

Preservation of Error TipsIt is generally understood that the “sham affidavit doctrine” will prevent a party from creating an issue of material fact to defeat summary judgment by filing an affidavit that contradicts its prior deposition testimony. However, a recent decision in the Middle District of Pennsylvania reminds us that the “sham affidavit doctrine” can be applied more broadly and is not limited to contradictions with deposition testimony.

In Williams v. Nish, Case No. 1:11–CV–0396, 2015 WL 106387 (M.D. Pa. Jan. 7, 2015), the plaintiff filed a verified response to the defendant’s status report in which he acknowledged under penalty of perjury that one of his claims was moot.  The defendants filed a motion for summary judgment on that claim based upon the plaintiff’s verified response.  The plaintiff then filed an affidavit in which he contradicted the statements contained in his previously filed verified response to the status report.

The court accorded the plaintiff’s response to the defendant’s status report the same weight as his later-filed affidavit because the response was made under penalty of perjury and otherwise complied with the requirements of 28 U.S.C. section 1746.  That statute provides that unsworn declarations under penalty of perjury are afforded the same weight as a sworn declaration, verification, certificate, statement, oath, or affidavit.  The plaintiff failed to offer a plausible explanation for his prior admission or any corroborating evidence to support the conflicting statement contained in his later-filed affidavit.  As a result, the court treated the affidavit as a sham, offered solely for the purpose of defeating summary judgment, disregarded the affidavit, and, finding no genuine issue of material fact, entered summary judgment in favor of the defendant on that claim.

Preservation Issue:  Failing to identify filings subject to the “sham affidavit doctrine” may result in waiver


Williams illustrates that the sham affidavit doctrine is not limited to consideration of statements contained in sworn deposition testimony that contradict prior or subsequent affidavits. The doctrine is flexible and includes consideration of any statement or document which is sworn-to or is signed under penalty of perjury in compliance with 28 U.S.C. section 1746 or an equivalent state law.  See, e.g., Ellison v. BHBC NW Psychiatric Hosp., Case No. 11–5106, 2013 WL 1482199 (E.D. Pa. Apr. 9, 2013) (accepting party’s prior written statement over later-filed contradictory affidavit); see also Nationwide Mut. Ins. Co. v. Shaw, 491 Fed. Appx. 353, 360-362 (3d Cir. 2012) (sham affidavit doctrine applied because prior testimony in underlying action contradicted affidavit filed after motion for summary judgment, and affiant could not explain conflicting statements and did not offer corroborating evidence); Kornagay v. Given, Case No. 3:11-cv-428, 2014 WL 1202988, *6 n. 7 (N.D. Fla. Mar. 24, 2014) (factual allegations in complaint signed under penalty of perjury could be used as an opposing affidavit for purposes of summary judgment); Moulds v. Bullard, 345 Fed. Appx. 387, 391 (11th Cir. 2009) (“[S]pecific facts pled in a sworn complaint must be considered in opposition to summary judgment.”).

Because the sham affidavit doctrine is not limited to consideration of contradictory or conflicting statements contained in your opponent’s affidavits and depositions, preservation of error relating to the denial of a motion for summary judgment should include consideration and review of all verified or sworn statements made by the opposing party, particularly when your opponent files an affidavit in response to your motion for summary judgment. Failure to recognize and demonstrate the incongruence between your opponent’s “sham” affidavit and its prior or subsequent sworn or verified statements may waive any error relating to the court’s denial of your motion for summary judgment.