One of the more difficult issues a district court judge faces is whether to apply something known as the “sham affidavit” doctrine when reviewing a summary judgment motion under Federal Rule 56. For those unfamiliar with the sham affidavit doctrine, it has its federal roots in a case from 1969 captioned Perma Research & Development v. Singer, 410 F.2d 572, 577-78 (2d Cir. 1969). In summarizing the doctrine espoused in Perma Research, the U.S. Court of Appeals for the Third Circuit has stated: “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,” as in Jiminez v. All American Rathskeller, 503 F. 3d 247, 252 (3d Cir. 2007) (citing Perma Research, 410 F.2d at 577-78).

The Jiminez case explains that every circuit court of appeals since Perma Research has adopted some form of the sham affidavit doctrine, including our own Third Circuit in Martin v. Merrell Dow Pharmaceuticals, 851 F.2d 703, 706 (3d Cir.1988). Our court has further clarified that a sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment. A sham affidavit cannot raise a genuine issue of fact because it is merely a variance from earlier deposition testimony, and therefore no reasonable jury could rely on it to find for the nonmovant.

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