COSA Dissent Watch: Credibility and Contradiction in a “Sham Affidavit”

By Chris Mincher

The case: Davis v. Lewin Realty, III, Sept. Term 2015, No. 0420 (May 25, 2016) (unreported)

The questions: Can a court assess credibility in striking a “sham affidavit” pursuant to Md. Rule 2-501? In the context of that rule, how specific do statements have to be for a court to find them contradictory? Is it a materially inconsistent for a witness to recall facts in a later affidavit that she could not recall in an earlier deposition?

The facts: Appellant sued Appellees for injuries allegedly caused by flaking, chipping, and peeling lead paint (to save space, we’ll just call that “deteriorating paint”) in the rental property she lived in as a child. The only evidence of the condition of the paint was the deposition testimony of her mother, Maria Copeland, that, at the time she rented the property, it looked like “everything was done” and the walls had been freshly painted. Ms. Copeland also testified that she did not remember whether, during the remainder of the time the family lived at the property, there was any further work that needed to be done to it.

Appellees moved for summary judgment, partially on the basis that there was no evidence of deteriorating lead paint at the property any point during the time Appellant lived there. Appellant responded with an affidavit from Ms. Copeland clarifying that, when the family moved into the property, it “was freshly painted but the paint was not smooth,” rather, “it was lumpy and bumpy.” The affidavit asserted that, while the family lived at the property, there was, in fact, “chipping, peeling and flaking paint on the exterior front door, the interior doors and doorframes, the baseboards throughout the house, the steps, the banister, the handrail and the walls in the bedroom.” It also contended that Ms. Copeland did not understand during the deposition that questions about work that needed to be done to the property included remediation of deteriorating paint.

Appellees moved to strike the affidavit pursuant to Rule 2-501(e), the so-called “sham affidavit” rule, which requires the court to, from filings in support or opposition to summary judgment, strike any part of an affidavit that contradicts any prior sworn statements of the affiant, including deposition testimony that has not been corrected in accordance with Rule 2-415. The circuit court agreed with Appellees that Ms. Copeland’s recalling deteriorating paint while the family lived there contradicted her prior statements that no work needed to be done when the family moved in and she could not remember any further work needing to be done before they moved out. The court also deemed “not credible” Ms. Copeland’s alleged misunderstanding about the deposition questions. The court struck the affidavit and granted summary judgment to Appellees.

The majority opinion (Wilner, joined by Kehoe): The majority defined a material contradiction pursuant to Rule 2-501(e) as one in which “both statements cannot be right.” Finding a material contradiction does not entail, the majority reasoned, deciding whether one statement is more credible than the other: “[T]he judge’s view of relatively credibility has no play. There either is an irreconcilable conflict or there is not.” The majority didn’t see any statements in Ms. Copeland’s deposition that created such a irreconcilable conflict — she was never even directly asked whether there was any deteriorating paint in the home while the family lived there. The majority also declined to construe her responses to “general questions regarding the condition of the property” as assertions that there was no deteriorating paint during the family’s time in the home. Commenting that “[i]t is difficult, at best, to find an irreconcilable conflict between a statement and no statement,” the majority reversed the circuit court and held the affidavit was valid.

The dissent (Friedman): Judge Friedman’s one-paragraph dissent believed it both “palpably false” and a material contradiction for Ms. Copeland to have, in her affidavit, remembered deteriorating paint at the property when she earlier testified that when the family moved in the walls were freshly painted and “everything was done,” and that she didn’t remember anything in the house needing further repair while they lived there. He would have upheld the striking of the affidavit.

Notes: First, it appears Judge Friedman would allow for a credibility assessment in applying Rule 2-501(e), as his dissent found Ms. Copeland’s affidavit to be “palpably false.” The majority is correct when it notes that the rule just uses the word “contradict,” which doesn’t say anything about the veracity of the statements; two statements can contradict each other without either of them being true (i.e., “the world is a flat disc” and “the world is a cube”). By the text of the rule, it wouldn’t seem to matter whether any of the statements were “palpably false” or not. The majority’s holding is particularly compelling given the Maryland Court of Appeals’ reminder earlier this year that, “at the summary judgment stage, a trial court cannot weigh the credibility of a witness and determine that the witness is not credible, and accordingly grant summary judgment against a plaintiff in a lead-based paint case on that basis. Rather, any issue as to a witness’s credibility is to be decided by the trier of fact, which is a jury in most, if not all, lead-based paint cases.” Rowhouses, Inc. v. Smith, 446 Md. 611 (2016) (internal citation removed). 

The dissent also found the affidavit contradicted two prior statements that Ms. Copeland made in her deposition: (1) that, when the family moved in, the walls were freshly painted and “everything was done,” and (2) she couldn’t remember whether, while the family lived there, the property needed any further work. Whether the first statement is a contradiction seems to be a matter of timing. Ms. Copeland testified that everything was done and there didn’t seem to be any further work needed at the time the family moved in. But this doesn’t say anything about whether there was any deteriorating paint later in the two years they were living there.

The second statement, however, perhaps creates a more interesting issue. Ms. Copeland testified at her deposition that she couldn’t remember if any further work needed to be done on the property while the family lived there. Then, in her affidavit, she claimed that her recollection had improved and she remembered deteriorating paint. It’s unclear whether the majority believed this wasn’t contradictory because the general comment on the condition of the property wasn’t sufficiently particular to deteriorating paint, or because not remembering something at one point and then later remembering it isn’t necessarily irreconcilable.

If the majority’s reasoning was the former, that seems pretty nitpicky — the only way for the statements to be consistent was if Ms. Copeland believed deteriorating lead paint wasn’t something the landlord needed to fix, which would presumably be antithetical to the plaintiff’s claims in the lawsuit. If the reasoning was the latter, the question becomes whether testimony about a lack of memory of a subject is inconsistent with later testimony containing details about that subject.

In the context of prior inconsistent statements in evidence law, a witness’ claimed lack of memory about an event can be inconsistent with prior detailed statements about it. Nance v. State, 331 Md. 549, 564 n. 5 (1993). The general rule is that when a witness truthfully testifies that she does not remember an event, the testimony is not inconsistent with other prior written statements about it, but that insincere testimony claiming a lack of memory is inconsistent. Corbett v. State, 130 Md. App. 408, 425 (2000). And who makes this credibility determination? The trial judge. Id. In this way, maybe there could, at least in the context of testimony that alleges a lack of memory, be a use for a trial judge’s credibility determinations in striking an affidavit pursuant to Rule 2-501(e) — and the trial judge in Davis clearly found that Ms. Copeland’s recent recollection was not credible.

On the other hand, the concern in Corbett and like cases is the so-called “turncoat witness” who initially gives detailed testimony but then, at trial, falsely claims not to have any memory of those details — somewhat the opposite of the concern in Harris of a witness who genuinely does not remember something but, later, falsely gives detailed testimony about it. But does the distinction matter? If statements are inconsistent, they’re inconsistent, regardless of the order in which they are said. Indeed, given that recollection tends to fade, not improve, with time, it could be argued that courts should be more vigilant in monitoring later-recalled details than later-forgotten ones. (For example, in Maryland, when a witness later purports to recall new details because of hypnosis, that testimony is per se inadmissible. See Burral v. State, 352 Md. 707, 741 (1999).)

Perhaps the biggest reason memory flubs shouldn’t be treated identically for evidence law and Rule 2-501(e) is the comparative consequences. Courts generally allow witnesses to recall different things at different times (that’s why recollections are “refreshed”) but permit counsel to investigate the contrast between the statements and potentially impeach the witness. The operation of Rule 2-501(e), however, is not a fact-finder’s weighing of incongruous testimony, but the striking of testimony altogether — and potentially booting the party out of the court on summary judgment. Given that harsh result, it would make sense if judges are barred from making possibly case-ending credibility determinations in applying Rule 2-501(e).

Certiorari prospects: Not great. The decision, which wasn’t reported, seems to solidly rest on the statutory language and is consistent with the Court of Appeals’ guidance in Rowhouses; Judge Friedman’s dissent is more of a fact-specific disagreement than a detailed attack on the majority’s legal reasoning. Further, even if somewhere buried in the case is an interesting issue about whether a witness’ improved recollection in opposing summary judgment is an inconsistency, it doesn’t look like that question was significantly argued or considered by either the majority or dissent.