United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiffs' motion to
strike affidavits submitted in support of defendants'
motion for summary judgment. Defendants have responded in
opposition and the issues are fully briefed.
bring this action pursuant to 42 U.S.C. § 1983 against
defendants St. Louis County, Missouri, Dr. Wendy Magnoli,
Officer Lauren Abate, and Herbert Bernsen, for deliberate
indifference to Jereme Hartwig's mental health care
needs, in violation of the Fourteenth Amendment. Plaintiffs
also assert a state law claim of wrongful death. On April 22,
2016, defendants filed a motion for summary judgment with a
memorandum in support and a statement of uncontroverted
material facts consisting of 164 numbered paragraphs with
supporting exhibits, in compliance with Local Rule 4.01(E).
The exhibits filed in support included the affidavits of
Magnoli [Doc. #113-9], Abate [Doc. #113-1], Bernsen [Doc.
#113-3], and Hall-Gordon [Doc. #113-5].
general principle, an affidavit or declaration used to
support or oppose a motion for summary judgment must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated. Fed.R.Civ.P.
56(c)(4). In addressing a motion for summary judgment, a
court is generally required to consider an otherwise
admissible affidavit, unless that affidavit contradicts
previous deposition testimony. Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 498 (8th Cir.2008). The court must
look to whether the affidavit of an already deposed person
merely restates, elaborates on, or contradicts the previously
taken deposition. Id. If the affidavit merely
restates or elaborates on previously given deposition
testimony, the court should consider it. Id.
However, if it contradicts a previously given deposition, it
will only be admitted “when the prior deposition
testimony shows confusion, and the subsequent affidavit helps
explain the contradiction.” Id. Affidavits are
permitted that seek to clarify previously unclear and
ambiguous deposition testimony and place it in a context
evident from the deposition transcript. See Taylor v.
Cottrell, Inc., 795 F.3d 813, 818-19 (8th Cir.2015)
(denying a motion to strike an affidavit when a witness used
an affidavit to elaborate and explain the circumstances of
her deposition testimony). The Eighth Circuit has looked to
whether each statement in the affidavit could stand
side-by-side with the deposition's statements without
them being inconsistent with one another to determine the
affidavit's admissibility in a motion for summary
judgment. City of St. Joseph, Missouri v. Southwestern
Bell Telephone, 439 F.3d 368, 475 (8th Cir.2006).
plaintiffs assert that the affidavits contradict previous
deposition testimony and medical records, and are merely
tailored to support the defendants' motion for summary
judgment. Plaintiffs identify a number of statements that
they claim are contradictory to statements made in
depositions or medical records.
Abate was a correctional officer at the St. Louis County
Jail. At her deposition on April 1, 2016, and in an affidavit
Dated: April 18, 2016, she offered testimony regarding her
role in the death of Mr. Hartwig and her understanding of the
suicide policies and procedures put forth by the St. Louis
County Jail. A side-by-side comparison of the statements in
Abate's affidavit that plaintiffs have highlighted and
her deposition testimony reveals no contradictions. Instead,
the Court finds that the statements in the affidavit are no
more than an expansion or elaboration of testimony Abate gave
in her deposition. Because there is no contradiction, there
is no ground for striking Abate's affidavit.
Bernsen was the Director of the St. Louis County Department
of Justice Services. At his deposition on March 28, 2016, and
in an affidavit signed on April 22, 2016, he offered
testimony regarding the jail's practices regarding the
mental health of inmates. In his deposition, Bernsen noted
that he communicated with the mental health team, reviewed
pertinent incidents and took their recommendations. All of
this is echoed in Bernsen's affidavit. Bernsen's
statement that under his administration there was a mental
health team does not contradict his deposition testimony that
the mental health team was under the Department of Health, as
both statements can be true.
Hall-Gordon was a clinical licensed social worker employed by
the St. Louis County Corrections Medicine Department of
Health. At her deposition on March 21, 2016, and in an
affidavit signed on April 21, 2016, she offered testimony
regarding her session with Jereme Hartwig. Plaintiffs argue
that Hall-Gordon's affidavit contradicts her previous
entries in Mr. Hartwig's medical chart. Again, after
comparing the affidavit to the entries in the medical chart
the Court finds no contradiction. Instead, the statements in
the affidavit serve to clarify Hall-Gordon's rationale
for the actions she took with respect to Mr. Hartwig.
Although the affidavit is not a verbatim recitation of the
medical record entries, it is nonetheless consistent with