Much of litigation has become about dispositive motions- motions that dispose of the case. Typically, that means motions for summary judgments. The employer submits a motion for summary, or quick judgment, saying the employee lacks evidence for the lawsuit. Both sides may offer affidavits. What happens when a plaintiff’s affidavit contradicts – or appears to contradict – his deposition testimony. Some judges would find the affidavit to be a sham and not worth considering. This reasoning is known as the “sham affidavit doctrine.” in Seigler v. Wal-Mart Stores Texas, LLC, No. 20-11080 (5th Cir. 4/5/2022), the Fifth Circuit found the lower court appleid the sham affidavit doctrine incorrectly.

The sham affidavit doctrine, said the Fifth Circuit, does not rule out an affidavit for minor or supplementary information. Ms. Siegler said her affidavit did not contradict her deposition testimony. It simply supplemented her prior testimony and added nuance. The higher court agreed. The court noted that yes, the plaintiff’s testimony did provide new details on matters that were asked about at the deposition. But, an explanation is not necessary if the affidavit only supplements prior testimony, instead of actually contradicting that prior testimony.

Ms. Siegler slipped at a Wal-Mart. Her affidavit added new details about the substance on which she allegedly slipped. Two of the new details involved the smell and color of the substance. The Fifth Circuit panel found that these details were not asked about at her deposition. The other details were her new testimony that described the substance on the floor as congealed, cold and “thickened up.” Wal-Mart objected that at her deposition, she testified that she did not know how long the substance had been on the floor. But, noted the court, Siegler was not asked at her deposition about the temperature or consistency. She did say at her deposition that the substance was “some sort of greasy liquid.” That description does not contradict her new testimony that it was congealed or cold.

The court did allow that the new details might call her credibility into question. But, the new details do not require that her new information be disregarded. The court then reversed the grant of summary judgment. See the decision here.