Lane v. Celotex Corp.

• Decision Date: 24 February 1986
• Docket Number: No. 84-8310,84-8310
• Parties: W.C. LANE, Jr., Plaintiff-Appellant, v. CELOTEX CORPORATION, et al., Defendants, Keene Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1526

782 F.2d 1526

W.C. LANE, Jr., Plaintiff-Appellant, v. CELOTEX CORPORATION, et al., Defendants, Keene Corporation, Defendant-Appellee.

No. 84-8310.

United States Court of Appeals,

Eleventh Circuit.

Feb. 24, 1986.

Eugene C. Brooks, IV, Clint Sitton, Savannah, Ga., for plaintiff-appellant.

Richard P. Schultz, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before HILL and FAY, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

W.C. Lane, Jr., a boilermaker, suffers from asbestosis. On March 31, 1982 he filed suit in the United States District Court for the Southern District of Georgia, claiming exposure to asbestos fibers over a thirty-nine year work span. The complaint alleges that part of that exposure was to asbestos dust emitted from products manufactured by Keene Corporation. ¹ The district court granted Keene's motion for summary judgment. On appeal, Lane argues that the district court improperly disregarded the affidavit of a co-worker which Lane claims raised a genuine issue of material fact. We agree and accordingly reverse the grant of summary judgment.

I.

Under the Federal Rules of Civil Procedure, summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of proof falls upon the party seeking the summary judgment, and "[a]ll doubt 'as to the existence of a genuine issue of material fact' must be resolved against the moving party." Southern Distributing Co. v. Southdown, Inc., 574 F.2d 824, 826 (5th Cir.1978) (quoting Gross v. Southern Railway, 414 F.2d 292, 297 (5th Cir.1969)). ² See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The district court must consider all of the evidence before it; summary judgment can be entered only "if everything in the record--pleadings, depositions, interrogatories, affidavits, etc.--demonstrates that no genuine issue of material fact exists." Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1980) (emphasis in original). In this regard, the district court must not resolve factual disputes by weighing conflicting evidence, see Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1298 (11th Cir.1983), since it is the province of the jury to assess the probative value of the evidence. See Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985). The district court must not "assess[ ] the probative value of any evidence presented to it, for this would be an unwarranted extension of the summary judgment device." Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir.1965).

II.

A.

The central dispute in this case concerns whether Lane produced sufficient evidence to support a finding that he was directly exposed to any of Keene's asbestos-containing products. In order to pursue this lawsuit against Keene, Lane must make this threshold showing. See Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.1985) ("recovery will require the plaintiff to show that he was exposed to defendant's asbestos-containing product by working with or in close proximity to the product").

On November 23, 1983 Keene moved for summary judgment. Keene based this motion on "the fact that through the course of discovery, neither the plaintiff nor any other competent source of evidence has identified or substantiated the plaintiff's use or exposure to any products manufactured by Keene." Lane opposed the motion arguing that a genuine issue of material fact existed which precluded the grant of summary judgment. Lane submitted the affidavit of a co-worker, Wilmer Ring, dated December 16, 1983. ³ In this affidavit, Ring "an insulator/pipefitter," recalled using Keene's product Monoblock ⁴ at the ITT Rayonier plant in Jesup, Georgia "in approximately 1969" while "working with and in close proximity to [Lane]." ⁵

Even in light of Ring's affidavit, Keene argued that summary judgment was appropriate. ⁶ Keene maintained that Ring's affidavit "must be disregarded" because it is "in direct and utter conflict" with Ring's earlier deposition testimony. ⁷ Apparently, the district court agreed and granted Keene's motion for summary judgment. ⁸

B.

In support of the district court's decision, Keene cites Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969), for the proposition that a district court may grant summary judgment if an issue raised by affidavit is clearly inconsistent with earlier deposition testimony. In that case, the plaintiff Perma Research alleged that the defendant had fraudulently entered into a contract which it never intended to perform. The president of Perma Research was extensively deposed and disclosed no specifics of the fraud claim. In a subsequent affidavit, the president referred to a conversation in which a representative of the defendant allegedly stated that the defendant "never had any intention of performing the ... contract." Id. at 577 (emphasis deleted). The Second Circuit concluded that the district court had properly granted summary judgment since the statement in the affidavit was blatantly inconsistent with the earlier deposition. "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. at 578 (citations omitted).

The Second Circuit's rationale has been followed by other courts faced with a party's attempt to create a factual dispute through a contradictory affidavit. For example, in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir.1975), the Ninth Circuit affirmed a grant of summary judgment where an issue of fact existed "only because of the inconsistent statements made by Radobenko the deponent and Radobenko the affiant." Id. at 543. The court recognized that "[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended," id. at 544 (citation omitted), and concluded "that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial." Id.

The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party's contradictory affidavit is a sham. ⁹ "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. See also Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) ("only ... where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted"); Price v. Worldvision Enterprises, 455 F.Supp. 252, 260 (S.D.N.Y.1978) (affidavit testimony departed "so markedly from the prior deposition ... as to brand as bogus the factual issues sought to be raised"), aff'd mem., 603 F.2d 214 (2d Cir.1979).

The crux of these cases rests with the reviewing court's determination that an issue raised by an affidavit is a sham because it contradicts or conflicts with earlier deposition testimony. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), however, the Fifth Circuit cautioned of the dangers inherent in this approach.

Certainly, every discrepancy contained in an affidavit does not justify a district court's refusal to give credence to such evidence. In light of the jury's role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition.

Id. at 894 (citation omitted). The plaintiff in Kennett-Murray brought suit against Bone, a former employee, to recover on a promissory note and an employment contract. Bone's defense was that no consideration existed for the note because he was fraudulently induced to sign the employment agreement. During his lengthy deposition, Bone gave inconsistent testimony regarding whether his former employer, the plaintiff, made any "statements ... that could be construed as a fraudulent misrepresentation." Id. at 890. In a subsequent two-page affidavit, however, Bone explained his earlier deposition testimony and supported his allegations of fraud. In reversing the district court's grant of summary judgment, the Fifth Circuit found that Bone's affidavit was not "inherently inconsistent" with his earlier testimony. Id. at 894. "While some statements in Bone's deposition differ with those in his affidavit, these conflicts present questions of credibility which require jury resolution." Id. at 895.

III.

Despite the broad language in Kennett-Murray, this court found that "[t]here is no conflict in the Perma Research and Radobenko decisions and the Fifth Circuit opinion in Kennett-Murray Corp." Van T. Junkins, 736 F.2d at 658. But see id. at 659-60 (Johnson, J., dissenting) (criticizing the majority's reading of Kennett-Murray as too narrow). This court recognized: "Each grant by a district court of a summary judgment rests upon the distinct issues and facts of that particular case." Id. at 658.

Given the facts in this case, we hold that the district court improperly granted Keene's motion for summary judgment. As an initial matter, we note that Wilmer Ring is not a party to this...