Under the sham affidavit doctrine, a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.
(1) there was no alternative treatment to the immediate extraction of [plaintiff’s] tooth in June 2001; and (2) even if [plaintiff’s treater] had known in June 2001 of an association between Aredia/Zometa and ONJ, he still would have extracted [plaintiff’s] tooth.
If Plaintiff wanted to question Dr. Mennitt about the opinions expressed in his affidavit, then she should have contacted him and secured a declaration or affidavit, just as Defendant did. Plaintiff and Defendant have equal access to Dr. Mennitt. Defendant was able to acquire an affidavit from the doctor to support its renewed motion for summary judgment; there is no reason why Plaintiff could not have done the same.