Case 1:12-cv-00029-MW-GRJ Document 111 Filed 04/01/14 Page 1 of 3

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
CHARAL PATTERSON,
Plaintiff,
v.

CASE NO.: 1:12cv29-MW/GRJ

DEPARTMENT OF CORRECTIONS
STATE OF FLORIDA,
Defendant.
_____________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
This cause comes before the Court on Defendants Motion for
Reconsideration of the Courts Order Denying Defendants Motion for Summary
Judgment. ECF No. 110. Defendant argues that it should have prevailed on
summary judgment because (1) Plaintiff should not be permitted to controvert
her deposition testimony that timing is her only evidence of pretext and (2) the
other evidence of pretext is not based on admissible record evidence. For the
following reasons, Defendants motion will be denied.
1.

Deposition Testimony

Plaintiff is not bound by answers to legal contention questions put to her

during her deposition. In the first place, it is unfair to ask such questions to a

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lay person.
[L]egal contention questions require the party to make a lawto-fact application that is beyond the competence of most lay
persons. [T]heir basic vice when used at a deposition is that
they are unfair. They call upon the deponent to sort out the factual
material in the case according to specific legal contentions, and to
do this by memory and on the spot. There is no legitimate reason
to put the deponent to that exercise. The task of having to sort
through the mass of available factual data and arrange it in terms
of the particular contentions is that of the lawyer, not the client.
This is what lawyers are for.
Rifkind v. Superior Court, 27 Cal. Rptr. 2d. 822, 826 (Cal. App. 2 Dist. 1994)
(internal citations omitted); see also Janeen Kerper and Gary L. Stuart, Rambo
Bites the Dust: Current Trends in Depositions Ethics, J. Legal Prof., Spring 1998,
p. 124.
Second, the Court did not err in considering other evidence outside of
Plaintiffs deposition testimony to find that there was a genuine issue of
material fact concerning pretext. The additional pretext evidence is not a
sham. Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986). The
evidence itself is a matter of record and not merely a statement made by
Plaintiff in an affidavit. So while it may be appropriate in some cases to strike
an affidavit as a sham, it is not appropriate to strike other evidence in the case
merely because the evidence is inconsistent with deposition testimony.
Defendant has cited to no cases for this proposition, nor can this Court find any.

CASE NO.: 1:12cv29-MW/GRJ

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To the contrary, because Plaintiffs deposition testimony can in no way be

deemed a judicial admission, she is not bound by her answer and is free to
controvert it with evidence from the record, which she did. See Brown & Root v.
Am. Home Assurance Co., 353 F.2d 113, 116 (5th Cir. 1965) ([E]xcept for those
specialized, rare assertions characterized as judicial admissions, a party is
entitled to explain an admission and even to retract it.).
2.

Additional Evidence

Defendant also argues that the additional evidence Plaintiff relied upon
to show pretext cannot be considered because it is conclusory, not properly
substantiated, and not admissible at trial. The Court finds, however, that
genuine issues of material fact exist regarding pretext based on reasonable
inferences that can be drawn from the record evidence. Accordingly,
IT IS ORDERED:
Defendants Motion for Reconsideration of the Courts Order Denying
Defendants Motion for Summary Judgment, ECF No. 110, is DENIED.
SO ORDERED on April 1, 2014.
s/Mark E. Walker
United States District Judge

CASE NO.: 1:12cv29-MW/GRJ