1 The HONORABLE DONALD D. ALSOP, United States District Judge for

the District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-2144

___________

Eugene Herring *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas

The Canada Life Assurance *

Company *

*

Defendant - Appellant. *

___________

Submitted: January 10, 2000

 Filed: March 16, 2000

___________

Before BOWMAN and LOKEN, Circuit Judges, and ALSOP, District Judge.1

___________

ALSOP, District Judge.

Canada Life Assurance Company (Canada Life) appeals from an order granting

summary judgment in favor of Eugene Herring in this action under § 502(a)(1)(B) of

the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §
2 The HONORABLE JAMES M. MOODY, United States District Judge

for the Eastern District of Arkansas.

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1132(a)(1)(B). The case calls upon us to decide if there is a “genuine” dispute of

material fact on Herring’s claim that he is totally disabled under his long-term disability

policy with Canada Life. A dispute is not “genuine” unless the evidence is such that

a reasonable trier of fact could return a verdict for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

We conclude that the evidence does not present a sufficient disagreement to require a

trial. See id. at 251-52, 106 S.Ct. at 2512. We therefore affirm the district court.2

I.

Herring was a life-long employee of Varco Pruden Building Services and its

predecessor, Varner Steel Company. Herring started working for the company in 1954

as a general laborer. Except for four years he served in the United States Navy,

Herring remained with the company until October 30, 1996, when he stopped working

on the advice of his treating physician, Dr. Thomas Duckworth. At the time, Herring

was fifty-nine years old and held the position of senior traffic manager.

In September 1994, two years prior to his last day of work, Herring underwent

heart by-pass surgery. He returned to work following his surgery, but by 1995 he

began complaining of a number of health-related problems, including chest pain,

accompanied by shortness of breath; pain throughout his body, frequently accompanied

by severe stomach distress, leg cramps, severe headaches, inability to sleep and total
3 Herring was first diagnosed with ASHD in 1994 when he underwent heart

by-pass surgery.

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lack of rest; intermittent problems with his left arm, with pain to such an extent that

Herring had a total restriction of movement; and intermittent pain in his right shoulder,

to the point where he could not lift his right arm above shoulder level.

Dr. Duckworth saw Herring in May 1996 and diagnosed him with fibrositis,

arteriosclerotic heart disease (ASHD),3 and mild depression. Dr. Duckworth testified

in his deposition that fibrositis was the cause of Herring’s muscle pain and tenderness,

his headaches, and his feelings of being “run down.” He testified further that Herring’s

chest pains and shortness of breath were indicative of ASHD. As for the mild

depression, Dr. Duckworth said it was “pretty well self-explanatory,” and explained

that there are no objective indicators of the disease.

On October 31, 1996, Dr. Duckworth concluded that, as a result of these

disorders, Herring was “completely and totally disabled,” and he recommended that

Herring cease working. In support, Dr. Duckworth testified that Herring’s fibrositis

prevented him from doing any type of strenuous activity or performing under any type

of stressful situation. Similarly, ASHD precluded Herring from doing any type of

heavy labor and put him at risk in stressful situations. The record is undisputed,

moreover, that Herring’s position as senior traffic manager involved numerous

responsibilities, such as supervising as many as thirty to forty people, planning shipping

schedules, setting up deliveries, contracting with independent trucking companies,

troubleshooting, and supervising a fleet of ten company-owned trucks.
4 Dr. Duckworth’s deposition was taken on November 12, 1998, at the

insistence of Herring’s counsel.

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In January 1997, Herring filed for long-term disability benefits with Appellant

Canada Life. Canada Life is an insurance company that issued a Group Long Term

Disability Income Policy (LTD policy) to the employees of Varco Pruden, including

Herring. Canada Life denied Herring’s initial application and his subsequent appeal.

Having exhausted his administrative remedies, Herring brought suit in state

court. Canada Life removed the action to federal court, and Herring subsequently

amended his complaint to allege a claim under § 502(a)(1)(B) of ERISA, 29 U.S.C. §

1132(a)(1)(B). Both parties moved for summary judgment. Canada Life chose not to

offer any affidavits or other evidence of its own, but elected instead to contest Dr.

Duckworth’s ability to diagnose Herring’s condition and, in addition, to take issue with

Dr. Duckworth’s deposition testimony in which he mistook what Herring did for an

occupation.4 The district court, applying de novo review, see Firestone Tire and

Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80

(1989), held that Herring had established his eligibility for long-term disability benefits

under the terms of the LTD policy and granted summary judgment in his favor.

II.

We review a district court’s grant of summary judgment de novo, applying the

same standard as the district court. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co.,

49 F.3d 399, 401 (8th Cir. 1995). Rule 56(c) of the Federal Rules of Civil Procedure
5 The LTD policy defines a “physician” as “an individual who is operating

within the scope of his license.”

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authorizes summary judgment “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” In deciding whether to grant a motion for summary judgment, a court

must view all evidence in the light most favorable to the party opposing the motion.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,

1356, 89 L.Ed.2d 538 (1986). However, in responding to a properly supported

summary judgment motion, the opponent “must do more than simply show that there

is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. at 1356.

The opponent must come forward with “specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986); Fed. R. Civ. P. 56(e). 

A.

Canada Life raises two arguments in support of its claim that the district court

erred in granting summary judgment in favor of Herring. One is that Dr. Duckworth,

a board-certified family practitioner, was not operating within the scope of his license

in diagnosing and treating Herring’s condition.5 According to Canada Life, Herring’s

primary complaints were related to anxiety, stress, and tension. Canada Life asserts

that these are mental health problems, properly handled only by a licensed psychiatrist

or psychologist, not a family practitioner.
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Canada Life fails to set forth the “specific facts” necessary to support a finding

that there is a genuine dispute on this issue. See Fed. R. Civ. P. 56(e). Indeed, Canada

Life has provided no support, other than its bare allegations, to indicate that Dr.

Duckworth was operating outside the scope of his license in diagnosing Herring.

“Allegations do not rise to an issue as to a material fact.” Marshall v. UNUM Life Ins.

Co., 13 F.3d 282, 284 (8th Cir. 1994) (citation omitted). Moreover, the record is

undisputed that both fibrositis and ASHD—two of Herring’s diagnosed conditions—are

primarily physical diseases, not mental health disorders as Canada Life suggests. (See

Oral Dep. of Thomas S. Duckworth, M.D., at 22.) In the absence of specific facts to

suggest that a family practitioner is acting outside the scope of his license in diagnosing

these (or any other) conditions, there is no dispute for the fact finder to resolve.

B.

Canada Life’s other argument is that Herring has not presented sufficient proof

that he is “totally disabled” under the terms of the LTD policy. This argument has

some merit, if only because there is a dispute in the record on whether Dr. Duckworth

knew what Herring did for an occupation. Our review is concerned with whether this

dispute is “genuine.” See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (a dispute

about a material fact is “genuine” only “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party”).

Herring’s LTD policy with Canada Life provides that a person is not “totally

disabled” unless he shows that he is “unable to perform the substantial and material

duties of his own occupation.” In his deposition, however, Dr. Duckworth testified on
6 Canada Life also takes the extreme position that the deposition testimony

actually justifies summary judgment in its favor, although it does not account for the

other evidence, set out below, going against it on this issue.

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several occasions that Herring was a draftsman, when he really was a senior traffic

manager. Canada Life contends that this testimony at a minimum creates a fact

question on whether Herring has proved that he is “totally disabled.”6 Herring counters

by noting that Dr. Duckworth filed a subsequent affidavit explaining the reason for his

mistake—he confused Herring’s occupation with that of Herring’s son, whom Dr.

Duckworth also treats. Herring points out, furthermore, that the affidavit establishes

that Dr. Duckworth knew at the time he found Herring to be disabled what Herring did

for an occupation. Herring concludes that the affidavit, coupled with the other evidence

in the record, is sufficient to remove any genuine issue of material fact.

Our analysis begins with the affidavit. Canada Life’s position is that it must be

disregarded under the rule we set out in Camfield Tires, Inc. v. Michelin Tire Corp.,

719 F.2d 1361 (8th Cir. 1983). In Camfield, we held that a party cannot create a

“sham” issue of fact in an effort to defeat summary judgment by filing an affidavit

directly contradicting prior deposition testimony. Id. at 1365-66. Our rule is a sound

one; if testimony under oath could be “abandoned many months later by the filing of

an affidavit, probably no cases would be appropriate for summary judgment.” Id. at

1366. But we also recognized in Camfield that there are “narrow circumstances” in

which a subsequent affidavit is appropriate, such as to explain certain aspects of the

deposition testimony or where the prior testimony reflects confusion on the part of the

witness. Id. at 1364-65. In the instant case, Dr. Duckworth stated in his affidavit that

he “confused” the occupation of Herring with that of his son, and offered a plausible
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reason why. We think this is the unique type of situation in which a subsequent

affidavit is appropriate to clarify, rather than contradict, a deposition.

Normally, in circumstances such as this, it would be for the jury to resolve the

discrepancy in the deposition testimony and the affidavit. Cf. Kim v. Ingersoll Rand

Co., 921 F.2d 197, 199 (8th Cir. 1990) (apparent discrepancy in plaintiff’s trial

testimony and his earlier deposition testimony created a credibility question for the

jury). But in this case, when we consider the affidavit with what is undisputed in the

record, the evidence is such that no reasonable fact finder could return a verdict in

Canada Life’s favor. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (“Where the

record taken as a whole could not lead a rational trier of fact to find for the non-moving

party, there is no ‘genuine issue for trial.’”).

In particular, we note that in his affidavit, Dr. Duckworth testified:

[I]rrespective of the fact that during the course of my deposition I confused the

nature of his job, the important considerations from a medical standpoint remain

the same—Gene Herring is really unable to perform under any type of stressful

condition. Stress aggravates and worsens fibrositis as well as the other

conditions I have diagnosed him with.

(emphasis added). In other words, Dr. Duckworth’s opinion about Herring’s ability to

work is the same regardless of whether Herring worked as a draftsman or a senior

traffic manager: “Gene Herring is really unable to perform under any type of stressful

condition.”

Dr. Duckworth’s deposition testimony fully supports his affidavit. In his

deposition, Dr. Duckworth testified that, as a result of his fibrositis and ASHD, Herring
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was unable to do any strenuous activity or to perform in any type of stressful situation.

He further testified that if Herring returned to work, “his level of stress would most

likely return to its previous level[,] worsening his fibrositis.” In fact, Dr. Duckworth

made it clear that it was the work environment, not anything peculiar to the duties of

a draftsman, that prevented Herring from working:

And as far as drawing the buildings, I don’t see where that has caused the

fibrositis. But I think it has more to do with the work environment, based on my

understanding of his work environment.

He added that the only type of job that Herring might be able to do would be a clerical

or task-orientated job, but only “if it fit him properly.” In short, Dr. Duckworth’s

deposition testimony that Herring was unable to work was not based solely on an

understanding that Herring was employed as a draftsman. Rather, his opinion focused

primarily on the work environment and the level of stress involved.

Canada Life offers no evidence, expert or otherwise, to dispute this. There is no

evidence to suggest that Herring does not suffer from fibrositis, ASHD, and mild

depression; nor is there any evidence to indicate that Herring’s job as a senior traffic

manager is the type of clerical or task-orientated job that he might be able to do; nor

is there any evidence to suggest that Herring’s position does not involve a level of

stress which could aggravate his condition to the point where he was unable to perform.

Herring’s affidavit, on the other hand, makes clear that his position as a senior traffic

manager involved numerous responsibilities, including managerial, supervisory, and

troubleshooting functions. His affidavit explained further that his medical conditions

made it difficult to perform his assigned work responsibilities. 
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When the entire record is viewed in this light, it is clear that the evidence does

not present a “sufficient disagreement” to require a trial. See Anderson, 477 U.S. at

251-52. 

III.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.