at the least inconsistent with, her prior sworn deposition testimony that she did not recall actually cutting, removing, or unlatching the lap belt and did not recall anything about the lap belt.” NR 87:7. Clark’s contention that Hodson’s affidavit “does not contradict her deposition” (AOB 17) thus borders on the fanciful. In any event, the district court obviously did not abuse its discretion in concluding that the Hodson’s affidavit and deposition testimony were contradictory. NR 87:6.
Cir. 1993), a case that Clark conspicuously fails even to cite.
In Unterreiner, a plaintiff
alleging age discrimination argued that he was entitled to equitable tolling of his claims because the company had not posted a required notice. In his deposition, the plaintiff “exhibited an almost complete lack of recollection of what was posted on the bulletin board.” Id. at 1210. In a subsequent affidavit, however, he stated that there was definitely no posted notice. This Court concluded that “[i]f the statements are not contradictory, the later statement is at least highly unlikely considering the earlier revelations concerning a lack of recall.” Ibid. In words that apply with equal force here, this Court explained: “A party cannot claim a lack of general knowledge about a subject
Like the affidavit in Unterreiner, Hodson’s affidavit is at best “highly
unlikely” in light of her prior lack of recall.
The district court similarly did not abuse its discretion in rejecting Clark’s
argument that Hodson’s affidavit should not be stricken because it “clarifies ambiguous or confusing deposition testimony.” NR 87:7. Clark renews that argument in this Court, focusing on Hodson’s affirmative answer to the brief question, “Would you remember unbuckling the lap belt if you had done so?” NR 69:2. According to Clark, “[t]he fact that Ms. Hodson does not remember releasing Clayton’s lap belt raises the inference that