United States District Court, D. Massachusetts
ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT [Docket No. 96]
JENNIFER C. BOAL, Magistrate Judge.
This action arises out of defendant Massachusetts General Hospital's (the "Hospital") treatment of pro se plaintiff, Yong Li. Li alleges race discrimination in violation of 42 U.S.C. § 1981, negligence, and failure to provide interpreter services in violation of M.G.L. c. 111, § 25J and M.G.L. c. 123, § 23A. The Hospital has moved for summary judgment on all of Li's claims against it. Docket No. 96. For the following reasons, this Court grants the motion.
I. PROCEDURAL BACKGROUND
Li filed her complaint on September 6, 2011, which was later amended with leave of court. Docket Nos. 1, 24, 25. The amended complaint named as defendants the Hospital as well as several doctors that provided treatment to Li at the Hospital. Docket No. 25 at ¶¶ 4-6. On June 29, 2012, the District Court dismissed the claims against the individual doctors. Docket No. 46.
On March 29, 2013, the District Court denied the Hospital's motion to dismiss Count III of the complaint, which alleged medical malpractice. Docket No. 64. Instead, the District Court construed Count III as alleging a negligence claim. Docket No. 64.
On May 16, 2013, the parties consented to the jurisdiction of a magistrate judge for all purposes and the case was reassigned to Magistrate Judge Robert Collings. Docket No. 70.
On July 25, 2014, the Hospital filed the instant motion for summary judgment. Docket No. 96. Li filed an opposition on September 3, 2014. Docket No. 99. The Hospital filed a reply on September 9, 2014. Docket No. 103. Li filed a surreply on September 16, 2014. Docket No. 106.
With the parties' consent, the case was reassigned to the undersigned for all purposes on September 29, 2014. Docket No. 113. See also Docket Nos. 111 and 112.
II. FACTUAL BACKGROUND
A. Scope Of The Record
In response to the Hospital's motion for summary judgment, Li did not specifically address each of the facts in the Hospital's Local Rule 56.1 statement of undisputed facts. Rather, she submitted her own statement of facts for which she contends there is a genuine issue for trial. Docket No. 102. That statement is mostly supported by her own affidavit. Docket No. 101. The Hospital argues that the Court should strike Li's affidavit under the "sham affidavit" doctrine, disregard Li's statement of facts, and deem admitted the Hospital's statement of facts. Docket No. 103 at 2-4. This Court disagrees.
"When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed." Colantuoni v. Alfred Galcagni & Sons, Inc. , 44 F.3d 1, 4-5 (1st Cir. 1994) (citations omitted). "The purpose of this sham affidavit rule is to protect the procedural integrity of summary judgment." Mahan v. Boston Water & Sewer Comm'n , 179 F.R.D. 49, 53 (D. Mass. 1998). "If a party simply could offer a contradictory, post-deposition affidavit to defeat summary judgment without providing a satisfactory explanation' for the contradiction, the purpose of summary judgment would be defeated." Id . (citing Perma Research & Dev. Co. v. Singer Co. , 410 F.2d 572, 578 (2nd Cir. 1969)).
However, "[a] subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment." Gillen v. Fallon Ambulance Serv., Inc. , 283 F.3d 11, 26 (1st Cir. 2002). As explained below, the Court finds that Li's affidavit does not contradict her deposition testimony but simply explains and expands on her prior testimony. Indeed, after review of Li's deposition testimony, the Court concludes that the Hospital was overzealous in its presentation of Li's testimony.
For example, the Hospital argues that while Li states in her affidavit that her primary language is Mandarin, she testified "consistently and unambiguously" that English was in fact her primary language in 2008, and that she had no problem communicating with the Hospital staff during her hospitalization. Docket No. 103 at 4. With respect to whether her "primary" language was English in 2008, however, she specifically testified:
Q. Was English your primary language in 2008?
A. What do you mean 2008 English language -
Q. Yeah. Was most of your communication primarily in English in 2008?
Q. Okay. And you spoke English at work and at ...