On May 22, 2002, the Supreme Court decided Shelcusky v. Garjulio, 172 N.J. 185 (2002). That was a personal injury case in which a forklift driver at a plant where aerosol products were made suffered severe burns when defective or damaged cans that he was carrying on the forklift exploded. When he learned that the model of forklift he had driven was unsafe for use in connection with aerosol cans, he and his wife sued the forklift manufacturer for failure to warn.
A key issue in the case was whether and to what extent the forklift driver knew what was in the containers that he was transporting. After testifying about that issue at deposition, he submitted two affidavits in opposition to the manufacturer’s motion for summary judgment. The second of those affidavits, submitted in connection with a motion for reconsideration after the Law Division had granted summary judgment to the manufacturer, differed somewhat from the worker’s deposition testimony and his first affidavit. As a result, the Law Division refused to consider that second affidavit. Plaintiffs appealed, but the Appellate Division affirmed, holding that the second affidavit contradicted plaintiff’s prior sworn testimony and affidavit and “therefore raised only a sham factual dispute.” The Supreme Court granted review “to address the question whether to accept the ‘sham affidavit’ doctrine that arose as part of the federal law governing summary judgment practice under Rule 56(c) of the Federal Rules of Civil Procedure.”
The majority opinion of the Supreme Court was written by Justice LaVecchia. She traced the origins of the sham affidavit doctrine in the federal system to Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969). “Recognizing that the plaintiff in Perma could not justify an inconsistency between his deposition testimony and a later affidavit submitted in opposition to a motion for summary judgment, the court stated: ‘If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Since the affiant could not justify the differences between his deposition and his affidavit, the summary judgment against him was affirmed.
Justice LaVecchia observed that every federal Circuit Court of Appeals, and many state courts, had thereafter adopted some version of this sham affidavit doctrine. But she noted that the doctrine “has not been applied mechanistically,” and that significant caselaw held that the doctrine would not apply if “a legitimate reason can be given for discrepancies.” Justice LaVecchia also took account of the “markedly small number of jurisdictions that have rejected the use of the doctrine.” The basis for that minority view was that contradictions between a deposition and a subsequent affidavit present credibility issues for a jury, not for a court on summary judgment.
The Supreme Court adopted the sham affidavit doctrine, finding it to be consistent with New Jersey’s summary judgment jurisprudence. But Justice LaVecchia cautioned that “[c]riticial to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant’s earlier statement.” The majority went on to reverse the summary judgment, ruling that “a rational factfinder could determine that (1) plaintiff’s deposition testimony and initial certification were not inconsistent with his subsequent certification; and (2) plaintiff had a plausible explanation for any perceived inconsistency in his representations to the court.”
Dissenting, Justice Verniero agreed with the adoption of the sham affidavit doctrine. He believed, however, that no reasonable jury could find proximate causation. Thus, the Court’s incorporation of the sham affidavit doctrine into New Jersey law was unanimous, and for exactly thirteen years, the doctrine has been established here.