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abuse of discretion, giving the trial judge much deference.” Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Because there was no abuse of discretion here, the district court’s evidentiary ruling should be affirmed.5/


Prior to defendants’ summary judgment motion, Ms. Hodson testified

unequivocally that she did not “recall anything” about the lap belt:



Q. A. Q. A. Q. A.


A. Q. A.


Okay. Do you remember whether either of his safety belts — his shoulder belt and a lap belt in the car I’ll submit — whether they were buckled or engaged? The only one I positively recall was his shoulder belt. *** What do you remember, if anything, about the lap belt? I don’t recall anything. I don’t recall actually cutting it or removing it. You do recall unbuckling or unlatching the shoulder belt? Correct. Would you remember unbuckling the lap belt if you had done so? Yes. *** If I understand your testimony correctly about the lap belt in the car, all you can say is that from the time that you arrived, which was 20 minutes or more after you received the call, you do not personally recall unlatching that lap belt? Correct. You cannot say what others might or might not have done; is that true? Correct, correct.”

NR 47:Tab 8 at 11-12, 29 (emphasis added). No fewer than three times, Hodson clearly and emphatically disclaimed recollection concerning Clark’s lap belt. Of the shoulder and lap belt, she said she could “only * * * recall” the shoulder belt; she did not recall either

5/ Although Clark acknowledges (as he must) the highly deferential standard of review applicable to thedistrictcourt’sevidentiary ruling (AOB 13), he goes on to suggest that this Court must engage in a “two step analysis” resembling de novo review which consists of (1) a “determin[ation] whether there is a discrepancy, in fact, between the Affidavit and the prior deposition testimony,” and (2) if so, a determination“whethersuchdiscrepancycreatesonlya‘shamissueoffact’.” AOB14. Thatisincorrect. The proper approach is for this Court to determine whether the trial court abused its discretion in (a) concludingthatHobson’saf idavitcon lictswithorcontradictsherdepositiontestimony,and(b)declining topermittheaf idavittobeintroducedinorderto “clarify ambiguous or confusing deposition testimony.” Adelman-Tremblay, 859 F.2d at 520. See also Buckner, 75 F.3d at 293 (affirming decision to strike affidavits where district court “could have rationally” concluded that affidavit was effort to “undo (contradict) the effects of the deposition testimony”).


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