In Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162 (7th Cir. 1996), this Court rejected a similar ploy. There, parents testified that because their son “customarily wore his seat belt,” they “believed” that he was wearing the belt on the day of the accident, id. at 1165, just as Hodson believed based on her “custom” that Clark’s belt was still in place. NR 54:Exh. 2 at 2. This Court rejected the argument that the parents’ testimony merely clarified a prior statement that their son’s belt was not in place, finding the conflict with the former testimony to be manifest. Bank of Illinois, 75
3d at 1171-172. The same is true here.
In an effort to minimize the appearance that Hodson’s affidavit was “little more
than a desperate attempt to resuscitate” Clark’s case (Adelman-Tremblay, 859 F.2d at 521), Clark suggests that submission of Hodson’s affidavit was necessitated by defendants’ failure to include “in their Evidentiary Appendix” to their summary judgment motion the portion of Hodson’s deposition where she testified that she would “remember unbuckling the lap belt if she had done so.” AOB 16-17; see id. at 17 (“The part omitted
* * was that she would have remembered unbuckling the lap belt had she done so.”).
This explanation, which flaws. First, it makes
Clark did not see fit to offer in the trial court, suffers from two
If defendants had omitted important deposition
testimony, that There was no
problem need to
could have been remedied by supplying the missing testimony. provide a new affidavit to supply the court with the existing
deposition testimony. Second, and more fundamentally, Clark’s explanation rests false premise. Contrary to Clark’s assertion, this portion of Hodson’s testimony
on a was
failuretodemonstratetothedistrictcourtthatHodson’sdepositiontestimonywasin any way ambiguous. NR 54; NR 87:8. In any event, if the district court had permitted this portion ofHodson’s affidavit, it would not have changed the outcome of defendants’ motion for summary judgment. The fact that Hodson did not unbuckle the lap belt does not raise a genuine issue of fact concerning whether the belt became unbuckled during the accident.