Appellate Decisions (Continued from page 40)
with a family friend, Rita Porter, at the subject premises. Hall and Terran re- turned to their principle residence with Gladys Hall sometime in 1993. The Circuit Court for Baltimore City
entered a scheduling order pursuant to Maryland Rule 2-504, requiring the par- ties to complete all factual discovery by March 1996, and all supplementation of discovery, continuation of deposition, and expert depositions by March 1998. Dur- ing the discovery period, defense counsel attempted to learn precisely how long Terran stayed at the subject premises, in order to determine whether his exposure to lead there constituted a “substantial factor” in causing his injuries. In her an- swers to interrogatories, Hall stated Terran’s period of residence at the subject premises as “1992-1993.” On deposition, her answers were vague, confused, and contradictory. Her predominant answer was that she and Terran resided at the sub- ject premises for two months, but one also could infer that she stayed for approxi- mately four months, from December 1992 until Easter 1993. With respect to visiting the subject premises, the most fa- vorable evidence was that she and Terran
visited the premises twice a week before residing there and three to four times a week afterwards for up to three hours at a time. Defense counsel, when question- ing on deposition Hall’s expert, Dr. Klein, assumed that two months was the long- est period of time that Hall and Terran resided at the subject premises. Dr. Klein stated that this period of exposure was insufficient to constitute a substantial fac- tor in the causation of Terran’s injuries. Defendants moved for summary judg- ment on the ground that Dr. Klein’s testimony indicated that Hall could not establish causation. In response, Hall and Gladys Hall submitted affidavits averring that Hall had left her mother’s house in the Spring of 1992 and returned in De- cember 1992, a period of approximately five and one-half months. In addition to increasing the period of residence, the af- fidavit testimony shifted its starting and ending points. Dr. Klein also filed an af- fidavit, expressly assuming the correctness of the information stated in the other two, and averring that the five and one-half month period of exposure constituted a substantial factor in the causation of Terran’s injuries. Defendants moved to strike these affidavits, arguing that Hall’s affidavit contradicted her previous depo- sition testimony and that these affidavits
were untimely because filed after the dis- covery deadline under the scheduling order. The Circuit Court for Baltimore City agreed, struck the affidavits, and— in the absence of any dispute as to causation—granted summary judgment in favor of defendants.
judgment, the Court of Special Appeals adopted a rule of federal case-law (the sham affidavit rule) by which a trial court is authorized to strike an affidavit, sub- mitted in response to summary judgment, when that affidavit contradicts the affiant’s previous deposition testimony, 127 Md. App. 255, 732 A. 2d 912 (1999).
Held: The judgment of the Court of Spe- cial Appeals is reversed and the federal sham affidavit rule is not adopted. First, the affidavits, despite the variation be- tween the content of those affidavits and testimony previously elicited during the discovery period, did not violate the trial court’s scheduling order because Rule 2- 501 (Summary Judgment) expressly provides the non-moving party the right to submit affidavits in opposing this mo- tion. Second, the federal sham affidavit rule is contrary to Maryland practice, under which a trial court may not decide issues of credibility on summary judgment (the credibility rule). While federal courts have justified the sham affidavit rule on the ground that Fed. R. Civ. P. requires a court to determine whether a “genuine” issue of fact exists, and affidavit testimony that unexplainably and flatly contradicts previous deposition testimony does not present a “genuine” issue of fact, the ap- plication of the federal rule requires a trial court to evaluate the affiant’s credibility. See, e.g., Lane v. Celotex Corp., 782 F.2d 1526, 1530-31 (11th Cir. 1986) (per cu- riam) (reversing grant of summary judgment because stricken affidavit was sworn to by a “disinterested witness” and because “any inconsistency in his testi- mony is more likely the result of his faulty memory than a predisposition to lie”). Under Maryland law, by contrast, the
standard for granting summary judgment is highly analogous to the standard for granting a motion for judgment in a case tried to a jury, such that summary judg- ment should not be granted if the evidence presented by the non-moving party would allow a reasonable fact-finder to conclude that, in actuality, the facts were those most favorable to the nonmovant. Thus, a Maryland court may strike a contradic- tory affidavit only if the assertions contained therein “are so wildly implau- sible and unbelievable that no rational jury would be allowed to return a verdict on the basis of such testimony,” or if they
42 Trial Reporter Fall 2000
Affirming this
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