Discovering Evidence Sufficient to Defeat a MSJ

On occasion a case lands on my desk where the only evidence supporting the plaintiff’s case is her own testimony. When summary judgment is filed, the opposition invariably reiterates that a genuine issue of material fact exists because the plaintiff’s deposition testimony or affidavit contradicts the defense’s evidence. I once posted about overcoming this argument using the physical facts rule.

There is also an argument, however, that a plaintiff may not rely solely upon her own testimony to create a genuine issue of material fact.

Moreover, to the extent that Rickard v. City of Reno, 71 Nev. 266, 288 P.2d 209 (1955), requires a plaintiff to produce evidence independent of her own testimony to support her theory of causation, appellant did so here by submitting photographs of the walkway with her opposition to summary judgment. Compare Rickard, 71 Nev. at 272-73, 288 P.2d at 212 (concluding that an inference of causation may not be drawn when all evidence contradicts the plaintiff’s theory of causation), with Worth v. Reed, 79 Nev. 351, 355, 384 P.2d 1017, 1019 (1963) (concluding that an inference of causation may be drawn when “some evidence” supports the plaintiff’s theory of causation).

Castle v. Las Vegas N. Strip Holdings, LLC, 2013 Nev. Unpub. LEXIS 272, 2013 WL 634689 (2013). So what does that mean? If the opposing party relies upon nothing but her own sworn testimony to establish her case, she may not be able to defeat a motion for summary judgment.