*1 Fla., Menser, Atty. of Asst. Gen. Mark Affairs, Marky, TIPPENS, deceased, L. Raymond
Dept, Legal of Nell L. P. William Gen., respon- for Koenig, Attys. Individually Tippens, Asst. John and as widow of Tippens, dent-appellee. Plaintiff-Appellant, L. CORPORATION, al., The CELOTEX et Defendant-Appellees. No. 84-8312. GODBOLD, VANCE Appeals,
Before United States Court of JOHNSON, Judges. Eleventh Circuit. Dec.
PER CURIAM: Bundy, scheduled to be Robert Theodore Tuesday, Novem- at 7:00 a.m.
executed 18, 1986, for a petitions this Court
ber appeal, probable cause
certificate pauperis on said proceed forma
leave pending stay of execution
appeal and for petition of his for writ of habeas
disposition
corpus. The United States District Court of Florida denied
for the Middle District
Bundy’s application for writ habeas p.m. on
corpus at 10:49 November applica- also denied the
The district court probable cause.
tion for certificate period remaining until the
limited of time is insufficient to allow
scheduled execution petitioner’s fully consider reason, stay For that of execu-
claims. Estelle,
tion is mandated. Barefoot L.Ed.2d 1090 103 S.Ct.
U.S.
Accordingly, petitioner’s application for a probable
certificate of cause and motion pauperis each proceed
leave to forma are application for a Petitioner’s
GRANTED.
stay pending appeal execution
GRANTED. in this appeal
It is that the ORDERED is EXPEDITED.
case
Roger Lane, Gossett, B. Darryl C. Bruns- wick, Ga., plaintiff-appellant. Ross, Savannah, Ga.,
Darlene Y. for de- fendants-appellees. HILL, VANCE,
Before Judges, *, Judge. BROWN Senior Circuit * Brown, Honorable John R. Senior U.S. Circuit tion. Circuit, Judge Sitting By for the Designa- Fifth BROWN, Judge: Tippens alleges R. Senior Circuit Mrs. that while her hus-
JOHN employed band at ITT Motion for Sum- Corporation’s Rayonier pipefitter aas at Brunswick granted in this case mary Judgment was Shipyards, exposed he was to asbestos con- non-party affiant’s mined, taining products that were manufac- prior with his affidavit. The inconsistent tured, and sold Celotex.1 District held the inconsistencies cre- *3 only considered ated a sham affidavit and motion for sum- response to Celotex’s granting deposition testimony in sum- affi- Tippens submitted the judgment, mary origi- do not find the mary judgment. We coworker, McIntyre, Frank which of a davit inherently inconsistent with nal affidavit prod- McIntyre used several stated that any question deposition and hold that ucts, the defendant Celo- including those of or to be to the proximity to tex, working in close while resulting from variances between evidence Tippens.2 The District question is a of William Lawrence an affidavit and motion judge denied Celotex’s initially for the trier of be it the or fact therefore, the District jury. McIntyre’s We reverse affidavit. on based judgment and grant summary Court’s defendants, Celotex, along the other with proceedings for further to consider remand McIntyre. During depo- Frank including depo- deposed all of the evidence both sition, pinpoint to McIntyre and the affidavit. was unable sition in close he worked specific instances where against Tippens brought suit Mrs. Nell Tippens while proximity to William (Celotex) Corporation individually McIntyre was product. the defendant’s and on behalf of her deceased husband. identify any specific instanc- to also unable Tippens Ship- at Brunswick worked con- asbestos he used Celotex’s es when ships yard pipefitter as a on of the United identify which Celo- taining products or Marines, Navy and the Merchant States How- asbestos. products contained tex among serving Army, others. After in the he ever, to state that McIntyre was able holding jobs, Tippens several other Mr. and apparent products. use Celotex’s twenty-seven years super- as a did worked for and the affidavit Jesup, Georgia. inconsistency between Rayonier visor for ITT originally brought against twenty- proximity Tippens he worked in close to me 1. suit as such during thirty years employed including at one defendants Celotex. The other Rayonier. original longer part are no of this defendants summary grants suit due to and 5. settlements working proximity judgment. only is the remain- While in close to Wil- Because Celotex defendant, grant following ing I used the the District Court’s of sum- liam Lawrence containing produced mary judgment judgment pur- is a final for the asbestos poses appeal. William Lawrence dust breathed myself: and 2. The affidavit states: a) insulating; Armstrong pipe asbestos 1. b) Carey Philip Carey cement asbestos and given upon my personal This affidavit is pipe covering; [Philip Carey asbestos knowledge above-captioned and use in the for predecessor company to Celotex Cor- the poration.] opposition defendants Motions matter in Summary Judgment. c) Raybestos-Manhattan asbestos cloth and 2. Raybestos-Manhattan material; gasket asbestos 1983,1 May, employed until From 1953 Inc., Rayonier, Jesup, Georgia, pipe- as a at Insulation, d) Forty-Eight Temp Hi asbestos fitter and insulator. Cement; Insulation Inc., Rayonier, Jesup, employed While at insulation; e) pipe Pabco asbestos Georgia, I worked with and around William f) Owens-Corning Kaylo pipe asbestos insu- Lawrence lation; and g) containing Tippens’ job Rayonier William Lawrence at Numerous other asbestos Supervisor products. maintenance crew and of the inability fact exists.” Keiser v. Coliseum to recall material times, Properties, Inc., places, and situations.3 Cir.1980) (emphasis in original).5 “Summa- Based on the inconsistencies McIn- ry judgment is a lethal weapon, and courts tyre’s deposition, Celotex moved for recon- must be mindful of its aims summary targets sideration of their motion for and judgment. The overkill in its use.” Bruns- and beware of District Court reconsidered granted wick v. Vineberg, and the motion. It’s Been Said “The principal function of Before4 the motion for summary judgment is to
The Federal Rules of Civil Proce
show that one
or more
provide
summary
dure
of the essential
pleadings, depositions,
in
“the
answers to
elements of a claim or defense ...
is not in
file,
terrogatories,
that,
admissions
to
doubt
result,
judgment can
affidavits,
gether
any,
if
show be rendered as a matter
Louis,
of law.”
there is no
issue as
Federal Summary Judgment Doctrine: A
*4
moving party
material
fact and that
is Critical Analysis, 83
745,
Yale L.J.
747
entitled
to a
as matter of law.”
(1974).
56(c).
F.R.Civ.P.
The District Court shall
in
consider all evidence
the record when
If one or more of the essential
reviewing
summary judgment
motion
doubt,
in
summary judg
elements is
then
—pleadings,
depositions,
interrogatories,
granted.
Summary judg
ment must not be
affidavits,
only grant
etc. —and can
summa
everything
ry judgment
weapon,
“if
ment
is such
depriving
the record
a lethal
genuine
...
no
issue,
demonstrates
issue of
litigant
aof
trial on the
caution must
3.McIntyre's
deposition reveals that
began addressing
spe-
he did not
counsel
[Celotex’s
prior
recant the statements in his
affidavit that
cifics of the affidavit.]
products
by
he used the
covering—
Q:
manufactured
Celotex
pipe
Now on the
following
Now,
around Mr.
The
A:
Q:
remember that.
excerpts
inability
spe-
demonstrate his
Carey pipe
recall
You remember some kind of
support
general
cific
covering?
incidents which
recol-
Right.
lection.
A:
Q:
specifies
But to the extent that this
asbes-
Q:
you
Philip Carey
... You said
used some
covering,
pipe
you
testify today—
tos
can’t
pipe covering—
Well,
asbestos,
A:
not for
no.
A: Uh-huh.
you
Q:
you
—while
were out there. Do
re-
you
Q:
question,
Let me ask
this final
Mr.
you
Philip Carey
member the first time
used
McIntyre:
respect
prod-
With
to the various
covering?
you
today
you
ucts
have told us about
... do
just
get
A: No. It’s
like I told him. We didn’t
any specific
have
recollection
aof
time when
either_
big loads of that
I don’t know.
you
any
used
of those
and Mr.
pens
your proximity?
was in
you
Q: So do
remember the containers that it
it,
pinpoint
A: I couldn’t
no. No.
came in?
31-35,
Deposition
42-43;
of Frank
at
just
A: It was cardboard boxes
like the others
Supplemental
Appellant
see also
Brief for
at 4.
come in.
pre-formed pipe covering?
Q: Was it a
appears
only
It
that Celotex is intent not
A: Pre-molded?
escaping judgment
creating
but also on
its own
Q: Yes.
See,
summary judgment.
e.g.,
treatise on
Celo
A: Yeah.
—
Catrett,
U.S. -,
Corp.
2548,
tex
106 S.Ct.
Q:
you
any particular
Do
remember
brand
(1986);
L.Ed.2d
Corp.,
91
265
Lane v. Celotex
name that was on it?
(11th Cir.1986);
953 only prior testimony, those devoid greatly be used to ensure cases this would dimin- utility ish the for factual determinations are need procedure screening summary out sham disposed by judgment. Sum- issues of fact.” Perma Research at 578. granted only The Sec- mary judgment should be ond Circuit determined that issue produced by non- when the evidence raised flatly affidavit which was contra- moving party, in a most when viewed dicted an earlier was so sus- party, favorable to that fails to establish pect of untruthfulness disregarded as to be Catrett, issue. Celotex — as a matter of law. -, 2548, 2553, 91 U.S. 106 S.Ct. (1986); L.Ed.2d Adickes v. Kress accepted propo- Eleventh Circuit Co., 144, 157, & sition that an disregarded affidavit can be L.Ed.2d it constitutes a sham in Van T. Jun Industries, kins and Associates v. U.S. This court decided an almost identical In that case against case the same defendant earlier the President of Van T. Junkins “made year. Lane v. Celotex crystal places clear in three deposi- 1526, 1528 1986), we stat tion” that there was no condition attached ed: agreement to their that he required district court must not resolve fac- [T]he buildings one of their in order to disputes by weighing conflicting tual evi- dealership. be awarded a Id. 657. He dence, Tombigbee see Trans- Warrior later submitted an stating that he portation Company NAN v. M/V dealership only be awarded the if he *5 FUNG, 1294, 695 F.2d 1298 Cir. would one of buildings. their 1983), province jury since it is the of the This court held that the affidavit should be probative to assess the value of the evi- disregarded as a sham. Its flat contra- dence, Corp, see Odum v. Celotex 764 diction to the earlier was unex- (11th Cir.1985). The dis- plained inadequate and therefore was to proba- trict court must not the “assess[ ] genuine raise a issue of fact which was any presented tive value of evidence to by denied to exist deposition. the earlier it, for an this would be unwarranted ex- Discrepancies: Credibility or Sham tension of the de- Meleski, vice.” Gauck v. 346 F.2d A definite distinction must made be be- discrepancies tween transpar- which create discrepancies
ent shams and which create Concept The Sham credibility go weight an issue of or to the Affidavit opposing party’s of the “An evidence. affi- propo- The Second Circuit announced the although davit should be considered it dif- may disregard sition that a court an affida- fers from or varies his evidence as [from] a vit as matter of law when it determines given by deposition or another affidavit that the affidavit is a sham in Perma Re- conjunction may and the two in disclose an Development Singer search and Co. credibility.” issue of 6 Moore’s Federal Co., (2nd Cir.1969). As re- ¶ (2d 1985) (footnote Practice ed. 56.15[4] by Lane, counted this court in the Second omitted). Circuit’s decision in in- Perma Research plaintiff volved a who claimed fraud but purpose summary judg specifics disclosed no of the fraud claim separate real, genuine ment is to issues during depositions. extensive He later pretended. from those which are formal or specif- filed an affidavit which disclosed the every memory To allow failure of or varia blatantly ics and thus was inconsistent with in testimony tion a witness’s to be dis party his earlier “If has regarded affidavit. a who require as a sham would far too length been examined at lay much from witnesses and would de simply by prive could raise an issue of fact sub- the trier of fact of the traditional mitting contradicting opportunity an affidavit his own point to determine which (in proximity
time and with which words the witness during period with him the case, affiant) stating the was the truth. using he was Celotex’s asbestos containing testimony Variations a witness’s products. deposition, McIntyre was memory throughout failure of the course any specific unable to state instances when discovery credibility an issue of create he specific product while part testimony as to which of the should be pens standing Although next to him. given greatest weight if the credited at all. jury may find this discrepancy in McIn- concerning credibility Issues of wit- tyre’s testimony to affect his or ques- nesses and of the evidence are persuasiveness, to diminish its it is not so require tions of fact which resolution inherently inconsistent that the court must An may only the trier of fact. be disregard previous affidavit as a mat- disregarded a sham “when a has ter law. When considering all the evi- given unambiguous ques- clear answers dence record most favor- negate tions existence of nonmoving party, able to the sufficient evi- genuine issue of material fact ... [and dence exists to raise a issue of party attempts] thereafter create such [to] material fact. issue with an affidavit that con- supervisor was the Rayo- at ITT tradicts, explanation, without previously nier and as closely he worked testimony.” clear Van T. Junkins employees supervised. which he at 657. containing Celotex’s asbestos [E]very discrepancy contained in an affi- were used employees during the justify davit does not a district court’s time supervisor. was the McIn- give refusal to credence to such evidence. tyre’s inability identify in- Jenkins, Choudhry See stance when he worked with Celotex’s as- (7th Cir.) (summary judgment containing products bestos super- while his improper though party’s testimony even standing visor was next to him does not paradigm cogency per- “not a or create an irreconcilable conflict with his suasiveness,” since it was not a “trans- deposition testimony such that the court parent sham”), nom., cert denied sub required disregard be his earlier Choudhry, Indiana v. *6 testimony McIntyre as a sham. testified 54 L.Ed.2d light In supervisor that his closely worked with him jury’s of in resolving questions the role using when he was insulating products, of of credibility, a district court should not which some were manufactured Celotex. reject the content of an if affidavit even McIntyre’s inability to cite instanc- it is at odds with statements made in an es when he Celotex’s asbestos early deposition. containing products supervisor while his Kennett-Murray Corp. Bone, 622 F.2d proximity close himto is not an (5th Cir.1980).6 irreconcilable conflict. Applying these principles to the in case, stant we find that the affidavit is not Junkins, In deposition Van T. the inherently deposition inconsistent with the clearly stated in places three that their testimony. The affidavit should have been agreement requirement contained no everything considered with in the record purchase building in order to obtain the resolving all doubts in favor of the non- contract. The affidavit later stated that moving party. See Adickes and Reiser. agreement there was an
McIntyre’s building states that order to obtain the contract. was his and contradictory worked close The affidavit in Van T. Jun- preceded discrediting deposi- deposition The affidavit weak which failed to establish a ma- present fact, tion in the case. While it is much less terial issue of we do not need to reach that likely precedes that an affidavit today a weak conclusion because we find that the affi- transparent is filed as a inherently sham than is davit and are not irrecon- discrediting affidavit which is filed after a cilable. represents type ny.” kins of irreconcilable purpose Id. at 657. The of this rule transparent conflict that amounts to a spare is to the party requesting summary disregarded. sham which should be pain the needless and costs of a party’s prior law suit when a statements comparison, McIntyre’s In statement show no dispute factual exists. This rule impeaches memory, evidence that further assures that frivolous law suits will impairs probative weight of his testimo- deluge not assessing system, federal court ny. Because other- consuming wise questions judicial of the evidence are scarce resources fact the trier of the District which would best be allocated to meritori- grant summary judgment Court’s ous claims. The life of a frivolous suit improper. We therefore reverse the Dis- should not be merely by extended a last grant trict summary judgment Court’s minute contrary affidavit which is to a proceedings and remand for further in party’s or an interested witness’ admis- light of all the evidence in the record sions, tangible unless there is some basis in a viewed most favorable to the for explaining the blatant inconsistencies. nonmoving party.7 If I writing slate, were on a clean I REVERSED and REMANDED. conclude that Frank that, interested witness due to the fact HILL, Judge, specially concur- like Tippens, he filed a similar suit ring: seeking recovery exposure for his to asbes- agree majority’s I conclusion represented by tos and is the same counsel appeal that this is controlled this court’s represents I Mrs. would also Corp., decision in Lane Celotex 782 F.2d McIntyre’s conclude that affidavit was in- (11th Cir.1985). Faced with this bind- herently disposi- inconsistent with his later ing precedent, agree I the district case, however, tion. The facts of this can- grant court’s should meaningfully distinguished not be from specially be reversed. concur to reiterate Therefore, those in Lane v. Celotex my holding. dissatisfaction with the Lane I concur. See Lane v. Celotex (11th Cir.1985) (Hill, J., dissenting). drastically decision Lane limits this holding court’s T. Van Junkins & Asso- Industries,
ciates v. U.S. Junkins, Van T.
court declared: “When has
clear unambiguous questions answers to *7 negate any genuine existence of
issue material that cannot
thereafter create such an issue with an contradicts,
affidavit that without
explanation, previously given clear testimo- Tip- yet 7. This would include consideration of Mrs. has not ruled on it. The trial court must pens’ deposition admissibility well. Mrs. stated first determine the of evidence be- that her husband’s clothes were covered in a green considering opposition fore it in to a motion for colored dust which Mr. told her summary judgment. Dougherty Clemons v. they was asbestos. She also stated that both (1982); County, Pan-Islamic came home covered in dust when she Trade (5th v. Exxon shipyard worked at the during as a welder and that Cir.1980), denied, rt. ce understanding that time it was her 70 L.Ed.2d We mention Deposition the dust was asbestos. of Nell completeness this here for because we find it pens at 49-50. highly probative likely to be held admissi- ruling We make no formal on the admissibili- ble under Fed.R.Evid. 804. ty of this evidence because the District Court