concurring:
Whether an evidentiary submission is a “sham” to be disregarded on summary judgment is an elusive question that may benefit from a more elaborate analytical framework than presented by the majority. The majority is correct in indicating that the problem is in weighing the general rule of submitting credibility determinations to the jury against the policy of discouraging unjustifiable efforts to defeat summary judgment. The classic pattern for such an effort is the submission of an affidavit opposing summary judgment which contradicts an earlier statement (most commonly, an earlier deposition). See, e.g., Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517 (7th Cir.1988). When a party seeks to create an issue of fact by simply submitting an affidavit which directly contradicts a witness’ earlier sworn comments, a court rightly ignores the later submission since it creates no genuine factual dispute. To view such a submission as creating a genuine issue of material fact might severely diminish the availability of summary judgment as a useful procedure.1
It is easy to determine that an affidavit produced in response to a summary judgment motion in contradiction of a prior statement is a “sham” because such an affidavit is not difficult to produce and because it pops up in the immediate context of summary judgment. In line with this thinking, it should be an important condition of finding a submission to be a “sham” that it be proffered for the purpose of defeating summary judgment. If this condition is not met, the policy of preserving the utility of summary judgment procedure is not implicated and there is no reason to depart from the general rule that credibility determinations are for the jury. The mere fact that a witness makes contradictory statements is not enough. This emphasis on purpose is implicit in holdings like that of the Ninth Circuit in Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991), that the existence of a “sham” must be found as a fact by the district court. Whether a later submission is a “sham” is not entirely a matter of how baldly the second statement contradicts the first or how easily the two may be reconciled in light of new evidence. As the Ninth Circuit emphasized in Kennedy, the concern is “with ‘sham’ testimony that flatly contradicts earlier testimony in an attempt to ‘create’ an issue of fact and avoid summary judgment.” Id. at 267.
In the present case the questionable statements were made in depositions taken prior to the filing of the summary judgment motion. They contradicted even earlier sworn statements. As I have noted, an affidavit opposing summary judgment which contradicts an earlier statement is the paradigm situation characterizing the vast majority of cases. It appears that only in this circuit has the rule been extended to encompass a situation in which the questionable statements were not made in response to a summary judgment motion. Essick v. Yellow Freight Systems, Inc., 965 F.2d 334 (7th Cir.1992).
In the current case the immediate purpose of the deposition containing the questionable statements was to support an amended complaint alleging a defective seat belt. The motion for summary judgment was not filed until six months after the deposition. Hence, the purpose to defeat summary judgment is not as clear as in the case of an affidavit contradicting a deposition and submitted in opposition to summary judgment. Here, of course, the effect of the deposition would be to defeat summary judgment and from this one might infer a purpose. Still, this is not as simple and clear a case as the deposition-affidavit paradigm. While Essick provides precedent for the application of the “sham submission” doctrine to the present case, there remains a question whether such extensions of the doctrine are entirely consonant with its limited underlying purpose. At the least, it would seem particularly important in this type of case to maintain a focus *1174on the purpose of the contradictory statements.
With respect to the other requisites of a “sham,” that it be in sharp conflict with earlier statements and that it not be reconcilable with former versions on the basis of new information, the majority provides a plausible analysis. It is certainly not inconceivable, however, that in watching the video the Shepards first realized that a seat belt could open in an accident and therefore that Shad could have had his seat belt fastened and still have been thrown from the car. The strongest factor arguing against this explanation is the unequivocal nature of earlier statements by the Shepards. But we should not lose sight of the fact that, but for the summary judgment context, this would just be a matter of impeachment for the jury to consider.
Judge Baker did not explicitly find as a fact that the deposition evidence here was a “sham.” I believe that this at least should be a requisite for rejecting sworn testimony. It is important to keep firmly in mind the general rule that credibility determinations are for the jury unless the new, conflicting evidence meets the specific requirements for finding it to be a “sham.”
Although Judge Baker made no explicit finding here, such a finding is perhaps implicit in his determination and may be adequate for purposes of this case. But, based on first principles as I have tried to outline them, I think the result we reach here can be questioned. In light of the case law, however, which seems to have extended the doctrine considerably beyond its original scope involving a response to a summary judgment motion, Judge Baker’s determination may be affirmed.
. "[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991), quoting Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969).