Metropolitan News-Enterprise


Tuesday, September 11, 2012


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Court Upholds Dismissal of Chuck Yeager’s Suit over Memorabilia

Panel Says Famed Aviator Filed Sham Affidavit After Failing to Answer Deposition Questions




The Ninth U.S. Circuit Court of Appeals has affirmed summary judgment rejecting an action by retired Gen. Chuck Yeager against a couple he claims breached a contract regarding personal appearances and memorabilia sales.

The court affirmed a ruling by Senior U.S. District Judge William B. Shubb of the Eastern District of California, who tossed out the suit against Ed and Connie Bowlin, retired airline pilots who are the proprietors of Aviation Autographs. Yeager, the first pilot to break the sound barrier, had a falling out with the Bowlins and demanded they return all of his autographs and memorabilia.

Yeager, now 89, claimed that the Bowlins failed to properly pay him for signing several lithographs, reneged on an agreement allowing him to keep a certain number of those items, and sold items bearing his name and likeness without his approval. His complaint included claims for breach of contract and for invasion of his statutory and common law rights of privacy and publicity, as well as trademark claims under the Lanham Act.

Lack of Recollection

At a deposition, Yeager responded to nearly 200 questions by saying he did not recall the information asked for, even after he was shown exhibits. After the Bowlins filed their summary judgment motion, Yeager filed a declaration adding significant details that he had testified to not remembering when he was deposed.

Shubb declared the affidavit a sham and said he would disregard it in ruling on the issues raised by the motion, to the extent it related to matters asked about at the deposition. “[T]he disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions,” the judge said.

The judge found that there had been no breach of contract and that the privacy and publicity claims were time-barred.  All of those claims accrued no later than 2005 and were barred by the applicable two- or three-year statute of limitations by the time Yeager sued in 2008, the judge said.  

‘Sham Affidavit’ Rule

Senior Judge A. Wallace Tashima said the district judge did not abuse his discretion by invoking the “sham affidavit” rule.

“This is not a case in which a deponent’s memory could credibly have been refreshed by subsequent events, including discussions with others or his review of documents, record, or papers,” Tashima wrote, saying the district judge’s finding that the discrepancies were too numerous to be innocently explained was not clearly erroneous.

“The District Court could reasonably conclude that no juror would believe Yeager’s weak explanation for his sudden ability to remember the answers to important questions about the critical issues of his lawsuit,” the appellate jurist wrote. “It is implausible that Yeager could refresh his recollection so thoroughly by reviewing several documents in light of the extreme number of questions to which Yeager answered he could not recall during his deposition and the number of exhibits used during the deposition to try to refresh his recollection.”

No Republication

Tashima also rejected the plaintiff’s claim that the time in which to sue for invasion of privacy and of the right of publicity began to run anew, under the state “single publication” rule, when the Bowlins edited pages of their website on which information about Yeager appeared.  

“Under California law, a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience,” the jurist said, adding that a “defendant does not republish the statement by simply continuing to host the website.” 

Tashima was joined by Senior Judge Betty B. Fletcher and Judge Stephen Reinhardt.

In an unpublished memorandum filed concurrent with the opinion, the panel affirmed an award of more than $268,000 in statutory attorney fees. The panel said the district judge was within his discretion in determining that reconstructed time records, prepared after the fee motion was originally denied on the ground of excessive block-billing, were sufficiently reliable.

The case is Yeager v. Bowlin, 10-15297.


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