Metropolitan News-Enterprise


Tuesday, June 18, 2019


Page 1


Ninth Circuit:

Contradiction of Deposition Testimony Wasn’t ‘Sham Declaration’

Opinion Says Conflicting Statement, Uttered to Show That Action Was Filing, Improperly Disregarded


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed a summary judgment in favor of the government, declaring that a plaintiff’s slip-up at his deposition should not be regarded as fatal to the action and that a post-deposition declaration should not be discounted.

In a memorandum opinion, a three-judge panel ordered reinstatement of an action by William J. Cannon who was injured while doing work on a Navy vessel, the USS Coronado. He brought his action, seeking $7 million, on Nov. 17, 2015, in the U.S. District Court for the Southern District of California.

Summary judgment was granted by U.S. Judge Cathy Ann Bencivengo of the Southern District of California who held that the action was time-barred under a two-year statute of limitation. Cannon had testified at his deposition that the accident occurred a day or two after the vessel returned to port after sea trials—which would have been in August, 2013,

“The central question on appeal is whether the district court erred in declining to consider Cannon’s post-deposition declaration stating that the accident occurred on the date an incident report was completed, and the incident report, which listed the date of the accident as November 25, 2013,” the opinion says.

‘Sham Affidavit’ Rule

It continues:

“The district court abused its discretion in excluding Cannon’s post-deposition declaration under the ‘sham affidavit’ rule….Although the declaration was inconsistent with the portion of Cannon’s deposition testimony concerning the proximity of the accident to the return of the vessel from sea trials, Cannon never identified the date of the accident in his deposition, and Cannon presented evidence that the accident occurred in November. The incident report, which Cannon identified as ‘accurate’ during his deposition and claimed to have filled out on the date of the accident, contains the November date. The record does not thus present a ‘clear and unambiguous…inconsistency between a party’s deposition testimony and subsequent affidavit.’ ”

The complaint recites that the incident occurred “[o]n or about November 25, 2013.”

(It recites: “Plaintiff was attempting to pick up and move lifts with three navy personnel when one or more of the navy personnel dropped their comers of the lifts, placing an excessive load on the plaintiff and causing plaintiff to sustain injuries, including but not limited to injuries to his lumbar spine.”)

Prior Consistent Statement

The opinion adds that Bencivengo erred in regarding the incident report as hearsay. It says:

“[T]he statement was not hearsay because it was ‘consistent with’ Cannon’s declaration and offered ‘to rebut an express or implied charge that the declarant recently fabricated’ his post-deposition testimony that the accident occurred in November.”

Cannon’s declaration and the incident report spawned a triable issue of fact, precluding summary judgment, the opinion declares.

Three-Judge Panel

The panel was comprised of Circuit Judges Kim Wardlaw and Andrew D. Hurwitz, joined by District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation. Hurwitz, as his custom, did most of the talking at oral argument, engaging both in questioning attorneys and declaring the law.

 Arguments took place May 17 in Pasadena. Hurwitz at length questioned Frank S. Moore of San Francisco, the appellate counsel for Cannon, as to why the declaration setting forth that the accident occurred on Nov. 25, 2013, did not contain an explanation as to how the error came to be made—a concern not reflected in the opinion.

In the declaration, Hurwitz pointed out, Cannon “didn’t even say, ‘I made a mistake,’ ” but merely stated the date on which he was now contending his injury was incurred.

Moore Explains

Moore explained that trial counsel, Frank S. Clowney III of San Diego, was of the view that the declaration provided merely a “clarification” and that an explanation was not needed. He acknowledged that Clowney “should have given a better explanation.”

However, Moore insisted, “In order to apply the sham declaration doctrine, the government has the burden of proving that, ultimately, he’s a liar.”

Hurwitz responded: “Well, maybe.”

Moore echoed, “Maybe.”

Assistant U.S. Attorney Casen Ross, under questioning by Hurwitz, did not retreat from his position that the incident report was not admissible to show a past consistent recollection.

The case is Cannon v. Austal USA LLC, 17-56804.


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