     Case: 19-31003      Document: 00515445762         Page: 1    Date Filed: 06/09/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-31003                             June 9, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
MARILYNN FREE,

              Plaintiff - Appellant

v.

WAL-MART LOUISIANA, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:17-CV-1261


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Appellant Marilynn Free appeals the district court’s strike of her
affidavit under the sham affidavit doctrine and corresponding grant of
summary judgment in Appellee Wal-Mart Louisiana, L.L.C.’s favor after the
exclusion of the affidavit resulted in a lack of competent summary judgment
evidence. For the following reasons, we AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-31003
                             A.     Background
      Marilynn Free alleged that she was shopping in the toy aisle of a Wal-
Mart store when children’s books fell on her head. She testified that her mouth
started bleeding and that she felt dizzy.     Rodney Lowery, the store’s toy
department manager, approached her after the incident. In an affidavit filed
after the depositions in this case occurred, Free stated that Rodney told her
that “he was sorry and that we should have caught that.”
      Free sued Wal-Mart alleging a falling-merchandise theory of negligence
liability. Wal-Mart moved for summary judgment. Wal-Mart also moved to
strike Free’s affidavit under the sham affidavit doctrine, asserting that the
affidavit was “self-serving, inconsistent with prior testimony, and was offered
only after [Wal-Mart]’s Motion for Summary Judgment was filed.” The district
court granted both motions. In granting summary judgment, the district court
determined that Free had offered no competent evidence to refute Wal-Mart’s
contention that it exercised reasonable care in maintaining the premises.
      Free now appeals. She argues that the district court erred in striking
the affidavit and that, if the affidavit is admitted into evidence, summary
judgment should not be granted in Wal-Mart’s favor.
                        B.    Standards of Review
      We review a district court’s ruling about the competency of evidence,
including an application of the sham affidavit doctrine, for an abuse of
discretion. Hacienda Records, L.P. v. Ramos, 718 F. App’x 223, 234 (5th Cir.
2018) (per curiam).
      We review a grant of summary judgment de novo. Smith v. Reg’l Transit
Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A dispute about a
material fact is ‘genuine’ if the evidence is such that a reasonable jury could
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                                    No. 19-31003
return a verdict for the non-moving party.” Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 403 (5th Cir. 1999).
                               C.      Discussion
      The sham affidavit doctrine prevents a party who has been deposed from
introducing an affidavit that contradicts that person’s deposition testimony
without explanation because “a nonmoving party may not manufacture a
dispute of fact merely to defeat a motion for summary judgment.” Doe ex rel.
Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000).
      Here, both Free and Lowery were deposed, and neither recalled Lowery
saying that Wal-Mart “should have caught” any falling merchandise hazard.
Lowery testified that he asked Free if “she was bleeding” and “if she was okay”
when he saw her in the aisle, but he did not recall saying anything else. Free
testified that Lowery asked her if she was okay and offered to get a manager
for her to talk to. Free was thoroughly questioned about the incident during
her deposition, but she did not testify that Lowery said he “should have caught”
any hazard.
      We have noted that not “every discrepancy” between a deposition and
affidavit should result in exclusion of the affidavit and that slightly
inconsistent affidavits may “explain certain aspects of [a party’s] deposition
testimony.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980).
However, Free’s affidavit testimony about Lowery’s statement does not merely
“supplement[], rather than contradict[]” her deposition testimony. See Clark
v. Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d 762, 766 (5th Cir.
1988). Instead, Free changed her recollection of her conversation with Lowery
to include comments on an issue that is central to an element of her claim. By
changing her testimony (and doing so just after Lowery’s deposition was
completed), Free left Wal-Mart unable to develop facts that might rebut her
changed testimony.
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                                 No. 19-31003
      Notably, courts typically require some explanation for an inconsistency
between a deposition and affidavit. See Hacienda Records, 718 F. App’x at 235
(affirming the district court’s decision to strike an affidavit when the affiant
provided no explanation for his change in testimony). But when Free filed her
affidavit, she gave no explanation for her change in testimony.
      A court may, as the district court did here, strike an affidavit that,
without explanation, conflicts with prior deposition testimony. We conclude
that the district court reasonably applied the sham affidavit doctrine and,
therefore, did not abuse its discretion. With the affidavit stricken, Free has
put forward no competent summary judgment evidence refuting that Wal-Mart
exercised reasonable care, so we also affirm the grant of summary judgment.
      AFFIRMED.




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