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Court of Appeals Rejects Federal Rule On ‘Sham Affidavits’ in 4-3 Decision

A mother’s affidavit that contradicted her earlier sworn deposition testimony was enough to defeat a landlord’s motion for summary judgment in a lead-paint poisoning case, the Court of Appeals held yesterday.The 4-3 decision reverses the Court of Special Appeals, which had adopted the federal rule on so-called “sham affidavits” in Maryland’s first published opinion on the subject.The top court expressly rejects the federal rule as being inconsistent with Maryland law.“It’s significant across the board, not just for lead-paint cases,” said Saul E. Kerpelman, the prevailing attorney in yesterday’s case. He called the federal rule, under which the court can ignore unexplained contradictions in such affidavits, “arrogant.”“It encourages judges to decide cases on paper, instead of letting them go to juries,” Kerpelman said yesterday. “I’m thankful that the Court of Appeals said that’s not the way it’s done in Maryland.”Thomas J. Cullen, who represented landlord Atlantic Realty Co., was out of town and unavailable for comment yesterday. J. Marks Moore, who defends the Housing Authority of Baltimore City in many lead-paint cases, had not reviewed the opinion but called the outcome “astonishing.”“Those of us who regularly defend lead-paint cases will have to wonder if there’s any purpose to filing a motion for summary judgment,” Moore said yesterday. “I think judges around the state will routinely deny [them].”The HABC was a co-defendant in the case but was voluntarily dismissed pending the outcome of the appeal against Atlantic, Moore noted.“This case was especially egregious because the affidavit came after the close of deposition,” he said. “There’s no avenue to go back and explore the issue.” Kerpelman’s use of affidavits that contradict deposition testimony has been controversial for some time now, and has drawn criticism from opposing counsel, motions judges and the Court of Special Appeals. “If ‘they shall sow wind, and reap a whirlwind,’ he who sows confusion harvests an even greater confusion,” Judge Raymond G. Thieme Jr. wrote for the intermediate appellate court in the case below.But Kerpelman remains unfazed.“I’m not going to abandon a child’s case because the witness wants to correct what she said at deposition,” he said yesterday. “I don’t care how it makes me look — I care about the kid. An innocent kid who was just in his house, just putting his fingers in his mouth, and got poisoned.”The affidavit in this case was not a “sham,” he insists — and any inconsistencies in the mother’s statements about how much time her son spent at the Atlantic property are easily explained.“It really was obvious on the face of the deposition, the mother had been a heroin addict and an alcoholic since the age of 14. She had no job, nothing to mark time by. You can’t look at that situation on paper and get a feel for what’s going on,” Kerpelman said. “The jury has to see her to understand.”At deposition, the mother was unclear about how long she lived with her friend at the Atlantic apartment, giving various guesses as to when her own mother may have kicked her out and when she may have moved back in. However, she eventually concluded she lived with her friend for two months. The plaintiff’s medical expert said that two months was not enough time to be a significant factor in the lead-paint poisoning of her son, Terran Pittman. But when Atlantic moved for summary judgment, the mother filed an affidavit that said she had lived with her friend for nearly six months and that her former roommate continued to baby-sit Terran there eight hours a day, five days a week, for more than a year after that. The expert then changed his opinion.“We’re entitled to every reasonable inference on a motion for summary judgment,” Kerpelman said. “All we did was take the testimony most favorable to the child, and repeat it in the affidavit.”Moore disputed that characterization yesterday.“I sat in on all the depositions, and in fact did much of the questioning,” he said. “With all due respect, the affidavits filed by the plaintiffs materially changed their testimony.”DissentJudge Alan M. Wilner, writing for himself and Judges Irma S. Raker and Dale R. Cathell, clearly thought so, too. “The difference is not one of nuance, of refreshed memory, of new information that would lead to a different conclusion, or of incidental fact,” Wilner wrote. “It is a complete and unexplained change of story — of the central facts most relevant to her right to recover.”What’s more, the “polished quality” of the affidavit contrasted sharply with the mother’s deposition testimony, “suggesting that it was drafted by counsel and was not merely a recording of her own statements,” the dissenters noted.Under the circumstances, the dissent would have affirmed the grant of summary judgment under a limited version of the federal sham affidavit rule. WHAT THE COURT HELDCase:Terran Pittman, a minor, etc. et al. v. Atlantic Realty Co. et al., CA No. 103, Sept. Term 1999. Reported. Opinion by Rodowsky, J. , Dissent by Wilner, J. Filed July 12, 2000.Issue:Is an affidavit which contradicts sworn deposition testimony sufficient to overcome a motion for summary judgment based on the deposition testimony≠Holding:Yes; the federal rule on ‘sham affidavits’ does not apply to summary judgment motions in Maryland courts.Counsel:Saul E. Kerpelman for petitioners; Thomas J. Cullen Jr. for respondents.RecordFax #0-0712-20 (49 pages)