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Brandon v. Glaxosmithkline, LLC.

United States District Court, N.D. Alabama, Western Division

July 6, 2017

ANNE BRANDON, Plaintiff,



         I. Introduction

         This case is before the court on Defendant's Motion for Summary Judgment (Doc. # 83), Plaintiff's Motion to Strike Declarations (Doc. # 91), and Defendant's Objection and Motion to Exclude Sham Declarations (Doc. # 98). The motions are fully briefed and under submission. (See Docs. # 93, 95, 100, 110, 111). After careful review, and for the reasons explained below, Defendant's motion for summary judgment is due to be granted. Plaintiff's motion to strike is due to be denied. Defendant's objection and motion to exclude is due to be granted in part and denied in part.

         II. Evidentiary Challenges to the Rule 56 Record

         At certain points in time, this case has been a voracious consumer of judicial resources. Indeed, at one stage, the court noted that discovery in this case has resembled a dumpster fire.[1]And, not surprisingly, Plaintiff and Defendant both challenge significant portions of the record presented by the opposing party. Plaintiff seeks to strike the declarations of Kareema Abdul-Barr and Kelly Raymer. (Doc. # 91 at 1). Defendant seeks to exclude declarations from Plaintiff and Gina Pearson, one of Plaintiff's former attorneys. (Doc. # 98 at 5-7). Defendant also requests that the court not consider the summaries submitted by Plaintiffs. (Doc. # 100 at 5).

         A. The Court Will Excuse Any Procedural Improprieties in the Parties' Evidentiary Challenges

         Plaintiff and Defendant both raise procedural objections to the other party's evidentiary challenges. Both Plaintiff and Defendant argue that the other party used the wrong procedural instrument to challenge the Rule 56 evidentiary submissions. (Docs. # 93 at 2-3; 110 at 1-2). Moreover, both parties contend that the other party's motion should be stricken for failure to confer prior to filing. (Docs. # 93 at 3-4; 110 at 2).

         The parties' disagreement about the proper vehicle for challenging Rule 56 evidence is rooted in different approaches that federal courts take on this issue. Some courts permit motions to strike that challenge evidence submitted into the Rule 56 record because the Federal Rules of Civil Procedure do not provide another means to contest the evidence's sufficiency. See, e.g., Morris v. Precoat Metals, 2013 WL 830868, at *2 (N.D. Ala. Mar. 4, 2013) (explaining that a motion to strike can be treated like a motion in limine). Other courts allow a party to challenge Rule 56 evidence through a motion to exclude. E.g., UCB, Inc. v. Teva Pharm. USA, Inc., 2015 WL 11199058, at *9 (N.D.Ga. Mar. 18, 2015). Still other courts require a party to challenge the opposition's factual assertion, rather than its submitted evidence, on the ground that the factual assertion “cannot be presented in a form that would be admissible in evidence.” E.g., Norris v. GKN Westland Aerospace, Inc., 2013 WL 440755, at *1 (M.D. Ala. Feb. 5, 2013) (quoting Fed.R.Civ.P. 56(c)(2)). Given the divergent case law on this issue, the court finds it appropriate to consider the merits of Plaintiff's motion to strike and Defendant's motion to exclude. Cf. Stuckey v. Ala. Bd. of Pardons & Paroles, 2012 WL 3670644, at *1 n. 2 (M.D. Ala. Aug. 27, 2012) (considering the substance of a party's motions to strike even though “the form of the motions is not grounded in a federal procedural rule”).

         The parties' failures to meet and confer before issuing their evidentiary challenges do not present a basis for disregarding their evidentiary challenges. Plaintiff did not violate any meet and confer obligation, as Rule 37(c) does not require her to meet and confer with Defendant before seeking sanctions for the alleged non-disclosure of witnesses. E.g., Greene v. Alan Waxler Grp. Charter Servs., LLC, 2014 WL 1089667, at *2 n. 5 (D. Nev. Mar. 18, 2014); Castro v. City of Mendota, 2012 WL 4344087, at *2 (E.D. Cal. Sept. 20, 2012). And, both parties indicate that their evidentiary motions are opposed. (Docs. # 91 at 1; 98 at 1). Therefore, the court will not disregard either motion due to any failure to meet and confer.[2]

         B. Admissibility of Plaintiff's Declaration

         Plaintiff has submitted a 26 page declaration to supplement the testimony she gave during her long deposition. (Doc. # 92-1). Defendant insists that the entire declaration should be excluded from the Rule 56 record because (1) certain averments impermissibly contradict testimony Plaintiff gave during her deposition, (2) other averments contain hearsay statements, and (3) the rest of the declaration contains ultimate legal conclusions, statements not based upon personal knowledge, and/or irrelevant issues. (Doc. # 98 at 8-14). As explained in detail below, this request is due to be granted in part and denied in part.

         1.Plaintiff's Purported Sham Declarations

         “A court may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction.” Latimer v. Roaring Toyz, 601 F.3d 1224, 1237 (11th Cir. 2010). “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The court must apply the sham affidavit doctrine sparingly, though, “because of the harsh effect it may have on a party's case.” Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Rollins v. TechSouth, 833 F.2d 1525, 1530 (11th Cir. 1987)). For example, the court should not use the sham affidavit doctrine to disregard a declarant's testimony where the declarant expressed a lack of certainty or recall during his or her deposition. See Id. at 1316-17 (holding that plaintiffs' written averments about uncompensated work time should not be disregarded as shams where the plaintiffs expressed a lack of certainty during depositions). Further, not every item that could serve as the basis to impeach a party-witness with earlier deposition testimony will lead to that party-witness's testimony being struck. A slight contradiction or an arguable contradiction is not enough. If portions of an affidavit are inadmissible, the court will disregard the inadmissible testimony and consider the admissible testimony from that affidavit in analyzing the summary judgment motion. Lee v. Nat'l Life Assur. Co. of Canada, 632 F.2d 524, 529 (5th Cir. 1980).

         Here, paragraph 16 of Plaintiff's declaration does not contradict her earlier deposition testimony. Plaintiff testified during her deposition that members of the community pharmacy team on which she worked were “asked to put in” information about contacts with pharmacies based on the pharmacy contacted, rather than the individual that the liaison spoke with. (Doc. # 82-3 at 94-95). Plaintiff did not specify when she was instructed to enter contact data under the pharmacy account rather than the individual with whom she had spoken. (See id.). Plaintiff's declaration explained that she was never instructed to enter sales calls under the pharmacy account before December 2013. (Doc. # 92-1 at 6). This averment clarifies when Plaintiff was instructed to enter data under the pharmacy accounts and, thus, does not contradict the testimony given during her deposition. Accordingly, Defendant's request to exclude paragraph 16 of Plaintiff's declaration is due to be denied.[3]

         Similarly, there is no contradiction between Plaintiff's earlier deposition testimony and paragraph 21 of her declaration. Plaintiff has averred in her declaration that Candace Brown maintained spreadsheets -- outside of the GSK 360 database program -- to track the community pharmacy team's progress toward the “Breo launch goal.” (Doc. # 92-1 at 7). During her deposition, she recounted Brown's creation of the spreadsheets and her personal knowledge about Brown's entry of data into those spreadsheets. (Doc. # 82-3 at 120-21). Because paragraph 21 of Plaintiff's declaration merely expands upon testimony she gave during the deposition, Defendant's request to exclude that paragraph is due to be denied.

         However, Plaintiff's testimony in paragraph 22 of the declaration substantially differs from her testimony during the deposition. During her deposition, Plaintiff professed ignorance when asked if a third party could access her data on the GSK 360 database:

         Q. It is your knowledge -- you have knowledge as you sit here today that the system allows others to change data?

         MS. PEARSON: Object to the form.

         A. All I can say is that data I entered disappeared.

         Q. Yes, ma'am. And if you entered the data, you would agree with me that there would be some evidence that it had been entered, wouldn't there?

         MS. PEARSON: Object to the form.

         A. No, sir. In theory, yes. There were problems with GSK 360. I don't know if -- I don't know the access into GSK 360 beyond my role as a community pharmacy liaison.

         Q. Yes, ma'am.

         A. I knew what I was taught to do to enter the data, but how it could be manipulated by a third-party, I don't know.

         Q. You have no clue as you sit here today about whether a third-party can manipulate your data at all, do you?

         MS. PEARSON: Object to the form.

         A. I don't know -- I don't know how that would work.

         (Doc. # 83-2 at 115-16). Quite to the contrary, Plaintiff's declaration asserts that Candace Brown was able to access GSK 360 account data. “In order to obtain information to populate her spreadsheets, Ms. Brown gained access to each team member['s] GSK 360 account data. Prior to Ms. Brown accessing my GSK 360 account, none of my data disappeared and I had no problems using the account.” (Doc. # 92-1 at 8). So, while Plaintiff previously testified during her deposition that she only knew about her own access to GSK 360 data, she has now averred in her declaration that Brown gained access to her GSK 360 data to populate the spreadsheets she had created. Thus, Plaintiff's subsequent affidavit testimony sharply contradicted her earlier deposition, yet Plaintiff has not offered any explanation for her new-found knowledge. (See Doc. # 110 at 4-5) (explaining that Plaintiff's testimony regarding her suspicions of Brown's access to GSK 360 data is relevant to her good faith belief that Gina Chaney sought to sabotage her). Due to the unexplained contradiction between Plaintiff's deposition testimony and the declaration, paragraph 22 of the declaration is due to be excluded from the Rule 56 record.[4]

         Plaintiff's averments in paragraph 51 of the declaration do not contradict her sworn deposition testimony. Plaintiff states in her declaration that (a) a record of failing to meet deadlines could have ruined her pharmaceutical sales career, and (b) Defendant's employees never informed her that she would receive her territory back after the delegations made during the Breo launch period. (Doc. # 92-1 at 16). During Plaintiff's deposition, she affirmed that Gina Chaney had made a “temporary” assignment of certain pharmacy accounts. (Doc. # 82-3 at 150). But, Plaintiff denied having any knowledge of whether Chaney would assign the pharmacies back to her after the Breo launch:

Q. You were going to get [those accounts] back once the goal was met?
A. I don't know that was true.

(Id.). Certainly, a jury could consider the discrepancy in Plaintiff's deposition testimony as evidence weighing against her credibility. However, paragraph 51 of the declaration sufficiently aligns with her denial of knowledge that she would be reassigned the pharmacies, and Defendant's request to exclude that paragraph is due to be denied.[5]

         2.Plaintiff's Recollections of Statements Made by Defendant's Employees

         Defendant objects to what it contends are hearsay statements provided in several paragraphs of Plaintiff's declaration. (Doc. # 98 at 12). Plaintiff responds that the statements in her declaration can be reduced to admissible form, but does not explain how she intends to do so. (Doc. # 110 at 3-4). Although Plaintiff does not refer to this issue in her response brief, Defendant's hearsay objections mainly relate to statements from her supervisor, Chaney, her co-workers Tresa Darr Johnson and Candace Brown, and other employees of Glaxosmithkline. (See Doc. # 98 at 12) (objecting to declarations about statements from Gina Chaney, Sherida Dorsey-Pete, Tresa Darr Johnson, Danielle Fedor, Carolyn Harris, and Candace Brown). Almost all of these statements concern the employee's own feelings or mental impressions, and almost all of them occurred during work activities. (See, e.g. Doc. # 92-1 at 12) (recounting Chaney's admonishments to the community pharmacy team after a meeting with Chaney's supervisor). To the extent Plaintiff's declarations contain statements from Defendant's employees with double hearsay, the statements reflect conversations between Defendant's employees within the scope of their duties. (See, e.g., Doc. # 92-1 at 8) (recounting Johnson's conversation with Chaney about GSK 360 remedial training). The court finds that Plaintiff's declarations in Paragraphs 13, 25, 26, 29-31, 35-37, 46, 50, 52, and 65 are admissible as statements by Defendant's agents on matters within the scope of their employment. Fed.R.Evid. 801(d)(2)(D). Moreover, Plaintiff's declaration that Brown derisively called her “Paula Deen” is not hearsay because the statement is being offered to show its effect on Plaintiff, rather than the truth of the matter asserted. (Doc. # 92-1 at 23). See also Fed. R. Evid. 801(c); Macuba v. Deboer, 193 F.3d 1316, 1323-24 & n. 15 (11th Cir. 1999) (citing an advisory committee's note for the proposition that a statement is not hearsay if its significance “lies solely in the fact that it was made”).[6]

         3.Plaintiff's Testimony Based on Belief and Speculation

         According to Defendant, several paragraphs in Plaintiff's declaration are due to be stricken because she has testified about matters based on her beliefs and speculations. (Doc. # 98 at 13). It is well settled that testimony based on an individual's belief or speculation is not competent summary judgment evidence because such testimony is not based on personal knowledge. E.g., Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002) (rejecting a district court's reliance on an affiant's statement that he believed a particular fact); Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (“Of course, the requisite personal knowledge must concern facts as opposed to conclusions, assumptions, or surmise.”); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999) (“[S]tatements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet this [personal knowledge] requirement.”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1301 n. 46 (11th Cir. 2012) (noting that an affiant's assumptions are not admissible under Rule 56(e)). Some of Defendant's personal knowledge objections are well taken; others are meritless.

         In paragraph 21 of the declaration, Plaintiff states that Candace Brown created tracking spreadsheets outside of the GSK 360 database. (Doc. # 92-1 at 7). She has not averred that she believes Brown created and managed the spreadsheets. (See id.). Indeed, Brown herself has testified that she assisted Chaney “by monitoring progress on the spreadsheets as well as the GSK 360 call activity.” (Doc. # 83-43 at 4). Defendant has not shown that paragraph 21 of Plaintiff's declaration should be excluded.

         In paragraph 27, Plaintiff avers, “I believe Ms. Brown used the access Ms. Chaney allowed her to delete most of my work since the Breo launch period began approximately one month prior.” (Doc. # 92-1 at 9). This declaration plainly relies on Plaintiff's beliefs and, thus, is inadmissible at the summary judgment stage. Jones, 683 F.3d at 1301 n. 46; Pace, 283 F.3d at 1278-79.

         Paragraphs 50 and 51 of Plaintiff's declaration present a few inadmissible statements, along with admissible recollections of Chaney's actions in January 2014 and the lack of communication between Plaintiff and Defendant's employees about those actions. Plaintiff has asserted her “understanding” that (a) Chaney sought to undermine Plaintiff's professional reputation by reassigning duties to other team members, and (b) the team members “called their take over of my territory ‘Operation Alabama.'” (Doc. # 92-1 at 16). Testimony based on a witness's understanding is comparable to belief testimony and inadmissible under Rule 56. E.g., Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (explaining that a witness's testimony based on understanding was insufficient to show that the witness could present competent testimony at trial); Rolison v. Sterling, 2009 WL 2514294, at *5-6 (S.D. Ala. Aug. 13, 2009) (striking an averment that began with a qualifying phrase based on the affiant's understanding). Defendant's request to exclude these statements in paragraph 50 is due to be granted. But, its request to exclude the entirety of paragraphs 50 and 51 is due to be denied.[7]

         Defendant's objections to Plaintiff's testimony about alleged “ultimate legal conclusions” are misplaced. (Doc. # 98 at 13-14). Lay witnesses may offer opinion testimony on the ultimate issue of a case if the testimony is based on personal observations. Carter v. DecisionOne Corp. Through C.T. Corp. Sys., 122 F.3d 997, 1005 (11th Cir. 1997). Plaintiff's averment that Harriss harassed her was based on her personal observations from phone calls. (See Doc. # 92-1 at 21). Likewise, her assertion that no reasonable person could have continued to work for Defendant under the conditions she faced was based on her personal observations about her work conditions. (Id. at 22). Therefore, both opinions are admissible, at least at this stage. See Carter, 122 F.3d at 1005 (explaining that Federal Rule of Evidence 704 abolished the prohibition on admitting lay opinion testimony about ultimate issues).

         C. Admissibility of Gina Pearson's Declaration

         Defendant argues that the court should exclude Pearson's declaration because (1) she submitted the declaration while representing Plaintiff as counsel, and (2) the declaration contains hearsay evidence from witnesses who declined to submit declarations on Plaintiff's behalf. (Doc. # 98 at 7, 14-15). Defendant's first argument misses the mark for excluding the declaration from the Rule 56 record. If Pearson was a necessary witness in this case, she would likely be disqualified from representing Plaintiff as counsel. See Ala. R. Prof. Conduct 3.7(a). But, she would not be disqualified from presenting the necessary evidence at trial. In any event, Pearson no longer represents Plaintiff. The court will not exclude Pearson's declaration on this basis.

         Defendant's second argument, though, hits the target. Pearson's declaration narrates her communications with three of Plaintiff's former co-workers. (See Doc. # 108-1 at 2-16). She states that the co-workers “were initially cooperative, engaging, and expressed a desire to willingly sign a declaration, ” but her communications with them “suddenly” ended at the same time and none of them signed a declaration on Plaintiff's behalf. (Id. at 16). Pearson has attached copies of her e-mail correspondence with the potential witnesses, purported drafts of a complaint letter against Chaney, and purported drafts of declarations to be signed by the potential witnesses. (See Id. at 18-99). By and large, Pearson's declaration presents inadmissible hearsay evidence and unauthenticated evidence, including a complaint letter with no signature from the purported drafter and declarations with no signatures from the declarants. In essence, Pearson is declaring that if certain witnesses testified in this case, based upon her discussions with them, she believes they would testify to “x, y, and z.” Of course, the Seventh Circuit has cautioned that the submission of affidavits by counsel is “a tactic fraught with peril.” Cf. Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987). Defendant's request to exclude Pearson's declaration is due to be granted, as all relevant evidence in that declaration is inadmissible hearsay.[8]

         D. Admissibility of Kareema Abdul-Barr's and Kelly Raymer's Declarations

         Plaintiff contends that the court should strike Abdul-Barr's and Raymer's declarations because Defendant did not disclose these witnesses in its initial disclosures, supplemental disclosures, or interrogatory answers. (Doc. # 91). Defendant responds that (1) Plaintiff identified Abdul-Barr as a witness in her supplemental disclosures, (2) Plaintiff stated that Raymer was a member of the community pharmacy team during her deposition, (3) their declarations constituted protected work product until Defendant filed them in support of its summary judgment motion, and (4) Plaintiff will not be prejudiced by the court's consideration of the declarations because she chose to not depose these witnesses. (Doc. # 93).

         The Federal Rules of Civil Procedure generally require a party to disclose the names of individuals likely to have discoverable information that will be used to support a claim or defense. Fed.R.Civ.P. 26(a)(1)(A). This initial disclosure must be supplemented in a timely manner if the initial disclosure was materially incomplete “and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Id. 26(e)(1)(A). Rule 37 prohibits a party from using a witness's testimony to support a motion if it has failed to identify that witness in accordance with Rule 26, unless the failure to disclose was substantially justified or harmless. Id. 37(c)(1).

         Plaintiff's objection to Abdul-Barr's affidavit is plainly meritless. Defendant disclosed in its amended initial disclosures that the witnesses identified in Plaintiff's initial disclosures might be used to support its defenses, as well as witnesses identified during the course of discovery. (Doc. # 91-2 at 1, 3). Plaintiff disclosed in her second amended set of initial disclosures (issued after Defendant had sent its amended initial disclosures) that Abdul-Barr was a potential witness with information about “Ms. Chaney's interactions with team members.” (Doc. # 93-1 at 7). Moreover, Defendant asserted in a July 2016 interrogatory response that Abdul-Barr had worked under Chaney's supervision. (Doc. # 93-2 at 6-7). Thus, Plaintiff had at least two months to arrange a deposition or compel other discovery from Abdul-Barr if she desired to do so. As Defendant informed Plaintiff that her witnesses might have information that would be used to support its defenses, and Plaintiff identified Abdul-Barr as a possible witness, Defendant did not violate Rule 37(c)(1) by submitting Abdul-Barr's affidavit.

         Likewise, Defendant did not violate Rule 37(c)(1) by submitting Raymer's affidavit. Of course, the better practice in discovery is to disclose the names of all potential witnesses in a party's disclosures or supplements to initial disclosures. Having said that, Raymer was identified as an employee in the community pharmacy team in the July 2016 interrogatory responses. (Id. at 6-8). This statement, provided a few months before the end of discovery, put Plaintiff on notice that Raymer could have information about Chaney's interactions with the team to support Defendant's defenses. See Shackelford v. Publix Super Markets, Inc., 2014 WL 5148461, at *6 (N.D. Ala. Oct. 14, 2014) (finding that a plaintiff had disclosed witnesses used at the summary judgment stage when she identified them during a deposition). And, arguably, such notice was unnecessary here because in her deposition Plaintiff herself ...

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