Cantu V. Peacher

This medical malpractice case, which terminated at the trial level by summary judgment in favor of the physician, involves the issue of the legal effect of variations between the deposition testimony and the affidavit testimony of the same witness. There are two lines of cases: one holds that the conflicting inferences from the deposition and the affidavit create a fact issue that will defeat a motion for summary judgment. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988). The other holds that if a witness's own affidavit contradicts the earlier deposition testimony then the affidavit must explain the reason for the change or the court will consider the affidavit an attempt to create a "sham" fact issue which will not defeat a motion for summary judgment. Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108, 111 (Tex. App.-Houston [1st Dist.] 1997, no pet.). Each of the cases that have examined the issue are fact specific, and a careful examination shows that a court must, at the expense of a bright line definition, examine the nature and extent of the differences in the facts asserted in the documents to determine what effect a conflict should be given in a particular case.