Sham Declaration Dooms Chuck Yeager’s Case

     (CN) – Legendary aviator Chuck Yeager filed a sham declaration after failing to answer nearly 200 questions during a deposition, the 9th Circuit ruled Monday.
     Yeager and his foundation sued Ed and Connie Bowlin, owners of Aviation Autographs, in 2008. He claimed that the Bowlins had failed to properly pay him for signing several lithographs, and that they had repeatedly used his name and image to sell items that he had not endorsed. He also alleged that the couple had tricked him into autographing certain memorabilia ostensibly for charity that was actually sold for their benefit alone.
     At his deposition, however, Yeager could not remember answers to 185 questions put to him by the defendants. Three months later, after the Bowlins had filed for summary judgement, Yeager submitted a declaration that provided many of the facts that he could not recall during the deposition.
     U.S. District Judge William Shubb ruled in Sacramento that the declaration was a sham and ignored it. Shubb granted summary judgment to the Bowlins on all federal claims, and found that Yeager’s state-law privacy claims had been filed outside the statute of limitations.
     On appeal in the 9th Circuit, Yeager argued that the declaration could not have been a sham because it did not contradicthis deposition testimony.
     The three-judge federal appeals panel in San Francisco disagreed.
     “This is not a case in which a deponent’s memory could credibly have been refreshed by subsequent events, including discussions with others or his review of documents, record, or papers,” Judge A. Wallace Tashima wrote for the unanimous panel. “In this case, the District Court found that ‘the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions.’ This finding was not clearly erroneous. The District Court could reasonably conclude that no juror would believe Yeager’s weak explanation for his sudden ability to remember the answers to important questions about the critical issues of his lawsuit. It is implausible that Yeager could refresh his recollection so thoroughly by reviewing several documents in light of the extreme number of questions to which Yeager answered he could not recall during his deposition and the number of exhibits used during the deposition to try to refresh his recollection. Thus, the District Court’s invocation of the sham affidavit rule to disregard the declaration was not an abuse of discretion.”
     Yeager also failed to maneuver around the two-year statute of limitations by claiming that the Bowlins had “republished” the offending statements on their website.
     “Under California law, a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience,” the ruling states, adding that a “defendant does not republish the statement by simply continuing to host the website.”

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