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Kennelly-Murray v. Megill11/17/2005
earlier deposition. In analyzing the sham affidavit doctrine's parameters, the Court admonished judges not to reject what is alleged to be a sham affidavit "where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Shelcusky, supra, 172 N.J. at 201-02.
Prior to the filing of his motion for summary judgment, defense counsel deposed plaintiff and asked about her present physical complaints. Plaintiff testified that her chest ached once or twice a day, prompting defense counsel to ask whether that occasional pain "prevent from doing any activities that used to do." Plaintiff said, "No." Upon further questioning, plaintiff revealed that her left knee continued to ache. Counsel asked whether this aching prevented her from performing any of her prior activities, and plaintiff said, "No." Following this, a more generic question was posed and answer given:
Q: . . . Are there any activities that you can no longer perform that you used to perform prior to the accident because of the injuries you sustained in the accident?
A: No.
Later in the deposition, plaintiff explained her view of the accident's psychological impact, and how she was prescribed tranquilizers to relieve anxiety and nightmares. When asked by defense counsel whether this medication helped, plaintiff said it did, and did not indicate that these or any similar problems had continued.
Defense counsel then asked a few general, open-ended questions directed at the heart of the serious impact prong:
Q: Are there any other ways in which you feel the accident or the injuries you sustained in the accident have now impacted upon your life at the present time?
A: I don't know how to answer that.
Q: Do you understand the question?
A: I understand the question, but I'm trying to think of the best way to answer you. I think any accident of any magnitude changes people, forces them to look at things differently. Just as a result of the tremendous pain that one feels, you are changed.
Q: How about physically. I understand what you just said to me, but in a physical sense. Do you feel presently a serious impact on your life?
A: No.
It was also established during the deposition that plaintiff was not employed at the time of the accident and that plaintiff had resumed doing the things around the house which, for a period of months after the accident, plaintiff's husband performed in her stead.
After this examination, plaintiff's counsel asked questions about the pain plaintiff alleged she continued to feel as a result of the accident. Plaintiff's counsel, however, made no attempt to coax from plaintiff any testimony to rebut her earlier denials of a serious impact upon her life.
Defendant thereafter moved for summary judgment, principally asserting the absence of evidence that would support Oswin's now-defunct serious impact test. Despite the denial of a serious impact on her life at her deposition, plaintiff filed a certification in response to defendant's motion for summary judgment in which she asserted:
5. I have healed over time with some degree of success. I have been left with daily pain that affects my left side and my left knee. In regard to the left side, I have been left with significant tenderness in that area. It is impossible for me to turn in the night and to lie on my side. Because of this, I find that I am aw
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