In Estate of Gray v. Baldi, 880 N.W.2d 451 (Iowa 2016), the Iowa Supreme Court addressed evidence offered in resistance to a summary judgment motion that was contradictory to other evidence. In Gray, the issue was whether a medical malpractice claim was timely filed.  Assuming without deciding that the medical malpractice discovery rule applied in a wrongful death case, the Court held that part of the claim was time-barred given the plaintiff’s knowledge more than two years before filing suit.

The plaintiff provided an affidavit in support of the resistance to the summary judgment motion that contradicted the plaintiff’s earlier sworn testimony provided in a criminal case against the physician. The Court held the affidavit was insufficient to generate a fact question “because it contradicts her earlier sworn testimony.” Id. at 462.

The Court discussed what most courts refer to as the “sham affidavit” rule—that a party may not manufacture a fact issue with an affidavit that contradicts prior testimony. In adopting this doctrine for Iowa, the Court “emphasized several important caveats.” Id. at 463. First, in Iowa the rule will be called the “contradictory affidavit rule” as it is not limited to cases of fraud or malfeasance. Second, the rule does not apply “if the affiant offers a reasonable explanation for any apparent contradiction.” Third, the inconsistency between the affidavit and prior testimony must be “clear and unambiguous.”   Id.  at 463-64.

Additionally, the Court applied the principle that: as the importance of the fact grows, so does the justification to disregard a contradictory affidavit. The Court also held the rule is not limited to testimony in the same case but “can apply if the two proceedings feature a common factual nucleus and the same person provides both the earlier testimony and the later conflicting affidavit.” Id. at 464.

Applying the new rule it established, the Court disregarded the affidavit.

Nancy J. Penner
Nancy Penner is an Attorney and Senior Vice President at Shuttleworth. She focuses on legal writing, appellate law, and medical malpractice.