case law to use in response to summary response B. Standard Of Review This Court's review of a grant of summary judgment is plenary. Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 215 (3d Cir. 1992), cert. denied, 113 S. Ct. 1285 (1993). The Court therefore applies the same standard as the district court properly applies in ruling on summary judgment. C. A District Court May Not Resolve Disputed Factual Issues on Summary Judgment if the Nonmoving Party Presents More Than A Scintilla of Evidence Summary judgment is properly granted only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). It is not the judge's role to determine "the truth of the matter," Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)), cert. denied, 113 S. Ct. 1262 (1993), in light of all the evidence. Rather, summary judgment must be denied "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. -------------------------------- Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate “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 judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering a motion for summary judgment, the facts, as well as the inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmovant. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 547, 587-88 (1986). A party moving for summary judgment is entitled to a grant of summary judgment only if no issues of material fact remain for the trier of fact to determine at trial. Id. at 587. A fact is material for purposes of summary judgment, if when applied to the substantive law, -5- it affects the outcome of the litigation. Anderson, 477 U.S. at 248. “Summary judgment is not appropriate when there is an issue of fact for a jury to determine at trial, which is the case when there is sufficient evidence favoring the non-moving party upon which a jury can return a verdict for that party.” Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248- 49. The nonmovant “cannot create a genuine issue of fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). See O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308 (1996). “When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 252; Shealy, 929 F.2d at 1012. quote from WATSON v UNUMPROVIDENT CORP., IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CIV. NO. AMD 01-1316, ------------------------------------ If the pleadings state a claim and demonstrate the existence of factual issues, a court considers the moving party's proof to determine whether the moving party has made a prima facie case for summary judgment. If the defendant is the moving party the defendant must establish a defense that defeats the plaintiff's cause of action. If a moving party has made a prima facie defense, the opposing party must show, by affidavit or other proof, the existence of disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn that are sufficient to entitle the opposing party to a trial. The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion, and doubts as to the existence of a genuine issue of material fact are resolved against the moving party. The court takes evidentiary facts in the record as true if not contradicted by opposing proof. ----------------------------------- In order to address the issue of a conflicting affidavit, most federal courts have adopted what is known as the “sham affidavit” rule. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969); Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705 (3rd Cir. 1988); Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970, 975 (4th Cir. 1990); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996); Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir. 1985); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365- 66 (8th Cir. 1983); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986); Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed. Cir. 1992). Basically, the “sham affidavit” rule precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous deposition testimony of the affiant. Similarly, in Rohrbough, the United States Court of Appeals for the Fourth Circuit declared that “'[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.'” 916 F.2d at 975 (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)). In that case, the parents of a child who developed a seizure disorder after she was administered a vaccine brought suit against the drug manufacturer. The plaintiffs' expert was directly questioned regarding whether or not there was a causal link between the vaccine and the child's symptoms. The doctor refused to opine that there was such a link. However, when confronted with the defendant's motion for summary judgment, the doctor submitted an affidavit stating that the vaccine caused the injuries in question. Applying its reasoning from Barwick, the Fourth Circuit upheld the district court's decision to disregard the affidavit. As indicated above, the “sham affidavit” rule is not absolute. There are some exceptions. For instance, “a subsequent affidavit may be allowed to clarify ambiguous or confusing deposition testimony.” Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517, 520 (7th Cir. 1988). In addition, “[a] contradictory supplemental affidavit is also permissible if it is based on newly discovered evidence.” Id. See also Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir. 1995) (“To determine whether a contrary affidavit seeks to create a sham fact issue, we determine whether: (1) 'the affiant was cross-examined during his earlier testimony;' (2) 'the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence;' and (3) 'the earlier testimony reflects confusion which the affidavit attempts to explain.'” (citation omitted)). Consistent with the above, this Court noted in Williams v. Precision Coil, Inc., 194 W.Va. 52, 60 n.12, 459 S.E.2d 329, 337 n.12 (1995), that: A conflict in the evidence does not create a “genuine issue of fact” if it unilaterally is induced. For example, when a party has given clear answers to unambiguous questions during a deposition or in answers to interrogatories, he does not create a trialworthy issue and defeat a motion for summary judgment by filing an affidavit that clearly is contradictory, where the party does not give a satisfactory explanation of why the testimony has changed. 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2726 at 30-31 (2d ed. Supp.1994). an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain. 4. To defeat summary judgment, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain. IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA KISER v CAUDILL AFFIRMED, June 23, 2004, --------------------------------- Summary judgment is appropriate only if there is no [[[[[[[genuine]]]]]]] dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The non-moving party is to have the credibility of all its evidence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). "Summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991)). If the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party, then there are genuine issues of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The movant has the initial burden of showing absence of evidence in support of the non-movant's case before the non-movant bears the burden of demonstrating the existence of some triable issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Thus, the non-movant may not rest upon mere allegations and denials of the pleadings, and must assert more than a "mere scintilla" of evidence in support of his case in order to survive an adverse entry of summary judgment. See Anderson, 477 U.S. at 248. Of particular relevance to the instant case, courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue. See Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir. 1997) (citing Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996)). BLACKMAN v TOWN OF FRONT ROYAL, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION 2000 U.S. Dist. LEXIS 17512 October 19, 2000 --------------------------------- A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact.(FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).) In reviewing all of the evidence, we must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached.(Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000).) The nonmoving party, however, cannot satisfy his summary judgment burden with conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence.(Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).)