Opinion

William L. Tippens, Deceased, Nell P. Tippens, Individually and as Widow of William L. Tippens v. The Celotex Corporation

  • 805 F.2d 949
  • 6 Fed. R. Serv. 3d 641
  • 1986 U.S. App. LEXIS 34583
Court
Court of Appeals for the Eleventh Circuit
Filed
Dec 9, 1986
Status
Published
Author
Hill
On the bench
Hill, Vance, Brown
Cited by
395 cases
Authority
More cited than 25.5%

concluding that when an affiant indicated at three places in the deposition testimony that an agreement contained no requirement to purchase a building in order to obtain a contract, the affiant's affidavit that stated there was an agreement to purchase a building in order to obtain a contract, represented "the type of irreconcilable conflict that amounts to a transparent sham which should be disregarded"

How later courts described this case

  • concluding that when an affiant indicated at three places in the deposition testimony that an agreement contained no requirement to purchase a building in order to obtain a contract, the affiant's affidavit that stated there was an agreement to purchase a building in order to obtain a contract, represented "the type of irreconcilable conflict that amounts to a transparent sham which should be disregarded"
  • stating that in making the determination whether an affidavit may be stricken as a sham, the court "must be careful to distinguish ‘between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence’ ”
  • finding that affidavit stating that affiant could generally remember occurrence of certain events did not contradict prior deposition testimony where affiant was unable to recall specific occurrences of same events
  • criticizing majority for holding that a witness’s contradictory statements could create an issue of material fact, even though the witness filed a similar suit to the plaintiff and was represented by the same counsel as plaintiff

Written by the judges who cited it.

The opinion

HILL, Circuit Judge,

specially concurring:

I agree with the majority’s conclusion that this appeal is controlled by this court’s decision in Lane v. Celotex Corp., 782 F.2d 1526 (11th Cir.1985). Faced with this binding precedent, I agree that the district court’s grant of summary judgment should be reversed. I concur specially to reiterate my dissatisfaction with the Lane holding. See Lane v. Celotex Corp., 782 F.2d 1526, 1533 (11th Cir.1985) (Hill, J., dissenting).

The Lane decision drastically limits this court’s holding in Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In Van T. Junkins, this court declared: “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657 . The purpose of this rule is to spare the party requesting summary judgment the needless pain and costs of a law suit when a party’s prior statements show no factual dispute exists. This rule further assures that frivolous law suits will not deluge the federal court system, otherwise consuming scarce judicial resources which would best be allocated to meritorious claims. The life of a frivolous suit should not be extended merely by a last minute affidavit which is contrary to a party’s or an interested witness’ admissions, unless there is some tangible basis for explaining the blatant inconsistencies.

If I were writing on a clean slate, I would conclude that Frank McIntyre was an interested witness due to the fact that, like William Tippens, he filed a similar suit seeking recovery for his exposure to asbestos and is represented by the same counsel that represents Mrs. Tippens. I would also conclude that McIntyre’s affidavit was inherently inconsistent with his later disposition. The facts of this case, however, cannot be meaningfully distinguished from those in Lane v. Celotex Corp. Therefore, I concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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