RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0177p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

AEREL, S.R.L.,

Plaintiff-Appellant,

v.

PCC AIRFOILS, L.L.C.,

Defendant-Appellee.

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No. 05-3864

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-00744—Patricia A. Gaughan, District Judge.

Argued: April 25, 2006

Decided and Filed: May 23, 2006 

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Timothy John Fitzgerald, GALLAGHER SHARP, Cleveland, Ohio, for Appellant. M.

Neal Rains, FRANTZ WARD LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Timothy John

Fitzgerald, George H. Carr, James F. Koehler, GALLAGHER SHARP, Cleveland, Ohio, for

Appellant. M. Neal Rains, Lindsey A. Carr, FRANTZ WARD LLP, Cleveland, Ohio, for Appellee.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Aerel, S.R.L., an Italian company that served as

the exclusive sales agent for PCC Airfoils, L.L.C. in Italy, sued PCC for the breach of a contract that

the parties executed in 2000. PCC is an Ohio-based company that provides castings for parts used

in jet engines and power generating equipment. Aerel maintains that the contract required PCC to

pay Aerel commissions for all orders that Aerel obtained for PCC in Italy during the term of the

contract, even if those orders were not finalized until after the contract had expired. The district

court concluded that the contract unambiguously permitted PCC to cease paying commissions upon

the termination of the contract on December 31, 2002, and therefore granted summary judgment in

favor of PCC. For the reasons set forth below, we AFFIRM the judgment of the district court. 

1
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 2

I. BACKGROUND

A. Factual background

Aerel entered into its first contract with PCC in July of 1987. Under that contract, PCC

agreed to pay Aerel commissions at a rate of 4% on the sale of certain PCC products in Italy, with

the understanding that higher or lower commissions on other products or services could be

established by mutual agreement. Commission payments were to extend for 18 months following

the 1989 expiration date of the contract. Aerel would thus receive commissions during this extended

period on orders placed, but not completed or paid for, during the contract term. Article V of the

contract provided in relevant part as follows:

5-C Upon the termination of this AGREEMENT, PCC Airfoils, Inc.[’s]

obligation to pay commission on sales of PRODUCTS promoted by AEREL

hereunder shall cease except AEREL shall be paid commission on purchase

orders then in force for castings to be delivered up to 18 months after the

termination of the contract where the PRODUCTS covered thereby have not

been delivered or paid for.

After the initial contract expired in December of 1989, the parties renewed their arrangement with

similar agreements—all of which contained ¶ 5-C—in 1990, 1993, and 1995. Aerel continued to

serve as PCC’s exclusive sales agent in Italy following the expiration of the 1995 agreement, but

operated without a written contract. 

In July of 2000, the parties signed a new sales agreement that modified their previous

arrangement. Three provisions of the 2000 contract are at issue in the present case:

2-F PCC AIRFOILS, INC. agrees to pay AEREL in full under terms of net thirty

(30) days from the date of receipt of payment to PCC AIRFOILS, INC. from

the customer.

2-G On all sales originating from the Territory, PCC AIRFOILS, INC. shall pay

AEREL as follows:

1. Tooling and fixtures 0%

2. Commission to be paid for CF6-8OC2 and GE90 airfoils sold

to any Italian customer will not exceed 2%

3. Castings for any other program of PCC AIRFOILS,

INC. 4%

4. It is understood that higher or lower commissions may be

required with regard to certain products or services, by

mutual agreement.

***

5-B Upon the termination of this Agreement, PCC AIRFOILS, INC.[’s]

obligation to pay commission on sales of Products promoted by AEREL

hereunder shall cease. 

Just three months after signing the new contract, the parties further modified the terms of the

agreement by amending subparagraph 2 of ¶ 2-G to include other PCC products at the 2% rate.
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 3

Absent from the 2000 contract, however, was any language confirming Aerel’s right to commission

payments for timely placed orders delivered and paid for during the 18 months after the contract

terminated. All of the prior contracts between the parties had included that language in ¶ 5-C. 

Luciano Cosentini, Aerel’s principal, testified in his deposition that he knew of the change

in the language and was not pleased with it. But he acknowledged that he had signed the 2000

contract voluntarily. Notwithstanding this testimony, Cosentini filed an affidavit accompanying

Aerel’s motion for partial summary judgment in which he offered a detailed reason for the deletion

of ¶ 5-C. Cosentini claimed that the language previously in Article V was eliminated because Aerel

had requested a commission “tail” that would have permitted Aerel to collect commissions on orders

that were negotiated directly by PCC, without Aerel’s help, after the contract had expired. Aerel

insisted that it was entitled to these extra commissions because it had developed a market in Italy

for PCC products. But PCC rebuffed Aerel’s efforts and, according to Cosentini, employed

language in the new ¶ 5-B that expressly rejected the idea of commission tails. Cosentini

maintained, however, that this did not alter his ongoing oral understanding with PCC’s Sales

Director Alan Peterson that Aerel would continue to receive commissions on all Aerel-obtained

orders placed during the contract term, even if those orders were not completed and paid for until

after the contract expired. 

During the term of the 2000 contract, Aerel negotiated blanket purchase orders of PCC

products with two Italian companies, FiatAvio and Nuovo Pignone. As the parties explained at oral

argument, the blanket purchase orders in question, although submitted during the period of the

agreement, did not become binding contracts until both the purchaser and PCC confirmed a specific

draw-down against the blanket purchase order. These specific purchase orders led to continued sales

in 2003, 2004, and 2005. In 2003, for example, sales under the specific purchase orders totaled

$30,974,297. The FiatAvio purchase orders expired at the end of 2003, but the Nuovo Pignone

orders still led to significant sales in 2004 and 2005. At the rates in the 2000 contract, Aerel

estimated that it would have earned over $650,000 in commissions on the FiatAvio and Nuovo

Pignone purchase orders between 2003 and 2005. But in October of 2002, two months before the

contract was set to expire, PCC informed Aerel that the sales arrangement would not be renewed.

PCC sent a check and an accompanying explanatory letter in March of 2003, purporting to pay Aerel

for all of the commissions owed under the expired contract. 

B. Procedural background

Aerel filed its complaint in the district court in April of 2004. The complaint sought

recovery under the theories of breach of contract, quasi-contract, and unjust enrichment. After

attempts at mediation failed, PCC filed a motion for summary judgment. Aerel responded with a

cross-motion for partial summary judgment. The district court denied Aerel’s cross-motion and

granted PCC’s motion. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 371 F. Supp. 2d 933, 943 (N.D. Ohio

2005). Aerel argued that the language of the contract clearly requires PCC to pay commissions on

all orders initiated during the contract period or, in the alternative, that the contract was ambiguous.

Rejecting both of these arguments, the district court held that, under ¶ 5-B of the contract, “Aerel

is not entitled to commissions after the termination of the contract.” Id. at 939. 

The district court also rejected Aerel’s contention that an alleged oral modification of the

terms of ¶ 5-B after the contract was executed precluded summary judgment. This contention, the

district court observed, was supported only by Cosentini’s affidavit. Id. at 941. In paragraphs 7 and

11 of the affidavit, Cosentini averred that PCC Sales Director Peterson had told him during and after

the negotiation of the 2000 contract that Aerel would receive the contested commissions, and that

Peterson’s representations “either confirmed [his] interpretation of the written contract, or modified

the written contract to match [his] previous interpretation.” But the district court determined that

these statements should have been revealed in Cosentini’s deposition testimony. It therefore struck
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 4

the two paragraphs in the affidavit that related to the alleged oral modification. Id. at 942. Finally,

the district court granted summary judgment to PCC on the quasi-contract and unjust-enrichment

claims, neither of which Aerel has pursued on appeal. Id. at 943.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where there exists no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). In considering a motion for summary judgment, the district court must construe the

evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). 

B. The district court did not err in determining that no commissions were

due after the contract expired

Aerel first argues, as it did before the district court, that ¶ 2-G of the contract clearly entitles

Aerel to all of the post-termination commissions that it seeks. This argument fails for two reasons.

The first is that Aerel itself recognizes that the operative phrase in ¶ 2-G—“sales originating from

the Territory”—“is susceptible to two or more reasonable interpretations.” See Schachner v. Blue

Cross & Blue Shield of Ohio, 77 F.3d 889, 893 (6th Cir. 1996) (“Contract language is ambiguous

if it is subject to two reasonable interpretations.”). Those varied interpretations center on the word

“originating,” which could mean simply “ordered,” or, alternatively, could include the entire

transactional process, from placement of the order through manufacturing, shipping, and receipt of

payment. In other words, ¶ 2-G, standing alone, does not answer the question of whether the

contract required PCC to pay Aerel commissions for products ordered, but not yet shipped, accepted,

or paid for, during the term of the contract. 

The second reason that Aerel’s argument fails is that ¶ 5-B specifically covers the topic of

post-termination commissions and therefore supersedes the more general terms of ¶ 2-G. Under

Ohio law, “[a] specific provision controls over a general one.” Monsler v. Cincinnati Cas. Co., 598

N.E.2d 1203, 1209 (Ohio Ct. App. 1991); see also BP Chemicals, Inc. v. First State Ins. Co., 226

F.3d 420, 426-27 (6th Cir. 2000) (explaining the principle that “more specific provisions control

over general ones”). Unlike ¶ 2-G, which governs commission rates generally for “all sales” during

the contract period, ¶ 5-B focuses on the precise time when PCC’s duty to pay commissions ended.

The latter paragraph fixes the cessation of that duty at the termination of the contract, and

does so in plain terms. Aerel’s response—that ¶ 5-B refers only to “products that had previously

been promoted by Aerel”—is unpersuasive both because it adds a nonexistent term to an otherwise

clear contractual provision and because, as soon as the contract period ended, any PCC product

promoted by Aerel would be one that Aerel “previously promoted.” Because the plain language of

¶ 5-B controls and displaces the general terms of ¶ 2-G, and because ¶ 2-G does not address the

payment of post-termination commissions, we reject Aerel’s first argument. 

Aerel’s alternative argument is that ¶¶ 2-F and 2-G, when juxtaposed with ¶ 5-B, create an

ambiguity that must be construed against PCC as the drafter. See Graham v. Drydock Coal Co., 667

N.E.2d 949, 952 (Ohio 1996) (reciting the rule that “a contract is to be construed against the party

who drew it”). Rejecting this contention, the district court concluded that the unambiguous language

of ¶ 5-B controls the issue of post-termination commissions. Aerel, 371 F. Supp. 2d at 939. The
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 5

district court further reasoned that the structure of the contract favored the interpretation advocated

by PCC, since Article II discusses the various aspects of the parties’ dealings during the contract

term, whereas the two provisions in Article V specifically refer to when the contract expires and

what happens upon termination. Id. at 940. 

We agree with the district court’s interpretation of the contract and reject Aerel’s argument

that the contract is ambiguous. Aerel insists that the phrase “sales of Products promoted by AEREL

hereunder” in ¶ 5-B is susceptible to at least two reasonable interpretations, one of which is that the

phrase refers only to those products “previously promoted and marketed by Aerel.” These latter

products would be distinguished from products sold by PCC to existing customers during the

requested tail period that would follow the termination of the contract. Aerel’s reading of this

otherwise straightforward language is an obvious attempt to create ambiguity where none exists, an

attempt that contravenes Ohio law in two ways. 

The first way is that Aerel, in support of its reading, relies on the extrinsic evidence of its

request for commission “tails” to prove that ¶ 5-B addressed only that request. Ohio courts,

however, will “not use extrinsic evidence to create an ambiguity; rather, the ambiguity must be

patent, i.e., apparent on the face of the contract.” Covington v. Lucia, 784 N.E.2d 186, 190 (Ohio

Ct. App. 2003) (citations and quotation marks omitted); see also Shifrin v. Forest City Enterprises,

Inc., 597 N.E.2d 499, 501 (Ohio 1992) (explaining that extrinsic evidence will “be considered in an

effort to give effect to the parties’ intentions” only if “the language of a contract is unclear or

ambiguous”). No such patent ambiguity exists in the 2000 contract. 

Second, Aerel appears to believe that the existence of competing readings of contractual

language is sufficient in and of itself to render the provision ambiguous. This argument has been

consistently rejected by various Ohio courts. See, e.g., Ohio Water Dev. Auth. v. W. Res. Water

Dist., 776 N.E.2d 530, 535 (Ohio Ct. App. 2002) (explaining that “the fact that parties may adopt

conflicting interpretations of a contract between them, while involved in litigation, will not create

ambiguity or a basis for unreasonable interpretation of the language”). The Ohio Supreme Court

has recently reaffirmed that a contract’s susceptibility to more than one reading does not necessarily

render the writing ambiguous. See State v. Porterfield, 829 N.E.2d 690, 692-93 (Ohio 2005)

(discussing the “level of lucidity necessary for a writing to be unambiguous” in the context of

statutory interpretation); see also United Tel. Co. of Ohio v. Williams Excavating, Inc., 707 N.E.2d

1188, 1200 (Ohio Ct. App. 1997) (observing that contract language is ambiguous only if “it is

susceptible of two conflicting but reasonable interpretations”) (emphasis added). Aerel’s proposed

construction of ¶ 5-B strikes us as unreasonable because such a construction would require PCC to

pay Aerel sales commissions for an indefinite period of time following termination—something that

not even former ¶ 5-C required PCC to do under the previous agreements between the parties.

The structure of the contract also supports the district court’s conclusion. Article II contains

nine provisions that, among other things, established Aerel as PCC’s exclusive sales representative

in Italy, bound Aerel via a noncompete clause for one year after the contract period, and dictated the

time of payment and the commission rates. In contrast, Article V contains only two provisions, the

first of which set forth the beginning and the end of the contract period and the second of which,

¶ 5-B, eliminated PCC’s obligation to pay commissions upon the termination of the contract. As

explained above, nothing in Article II covers the payment of post-termination commissions, leaving

the clear language of ¶ 5-B as the only section of the contract to address that issue directly.

Paragraphs 2-F and 2-G are therefore logically read as governing particular aspects of the parties’

ongoing relationship during the contract period, whereas ¶ 5-B resolves a question left unanswered

by the former provisions. 

The argument emphasized by Aerel in its Reply Brief—that the district court’s attempt to

harmonize Articles II and V leads to an absurd result—is likewise unpersuasive. Aerel contends
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 6

that, under the district court’s interpretation of ¶¶ 2-F and 5-B, PCC could have refused to pay

Aerel’s commission on a completed contract if PCC’s payment obligation did not mature until less

than 30 days remained before the contract expired. This is possible, Aerel says, because ¶ 2-F

required that PCC pay Aerel within 30 days of receiving payment from the customer, thereby

permitting PCC to deprive Aerel of commissions otherwise due simply by withholding payment

until after the contract expired. 

We do not believe that the interpretation adopted by the district court leads to the absurd

consequences that Aerel postulates. First and foremost, the scenario envisioned by Aerel is not the

one at issue in the present case, which concerns blanket purchase orders that potentially generated

commissions well after the termination date of the contract. These blanket purchase orders, as we

explained above, did not become binding contracts—and thus did not generate sales

commissions—until the customer confirmed a specific draw-down against its blanket purchase

order.

Secondly, Aerel’s counsel confirmed at oral argument that no commissions on these specific

draw-downs became due in the last 30 days of the contract term. In any event, principles of equity,

which “regard[] as done that which ought to be done,” Syring v. Sartorious, 277 N.E.2d 457, 458

(Ohio Ct. App. 1971) (citations and quotation marks omitted), would likely have barred PCC from

withholding commissions fully payable within 30 days of the contract’s expiration.

Aerel therefore confuses a hypothetical attempt by PCC to deprive Aerel of commissions

with PCC’s right under the contract to decline to pay commissions on orders that were initially

negotiated during the contract term but were not finalized until after termination. In other words,

¶ 5-B of the contract would not likely have permitted PCC to deny Aerel the commission payments

otherwise due at the time of termination, but did permit PCC to refuse to pay commissions for orders

that did not even become final until after the contract had expired. We acknowledge that, read in

this manner, the 2000 contract might have decreased Aerel’s incentive to seek out long-term

contracts on PCC’s behalf, and might also have affected Aerel’s desire to work for PCC during the

final months of the contract period. But enforcement of the document’s unambiguous terms,

although adverse to Aerel’s financial interests, is no more absurd or manifestly unjust than refusing

to grant PCC the benefit of a bargain that it successfully negotiated with another experienced

commercial entity. 

Finally, the district court correctly distinguished this court’s decision in Harry W. Applegate,

Inc. v. Stature Electric, Inc., 275 F.3d 486 (6th Cir. 2001). As in the present case, Applegate

involved a dispute over commissions on blanket purchase orders placed before the contract expired

but not paid for until after termination. Id. at 488. This court first found that the written agreement

was ambiguous and then, applying New York law, held that the plaintiff was entitled to the

requested commissions. Id. at 489. Central to this court’s holding was the fact—repeated three

times in the opinion—that “the Agreement does not clearly provide a contrary provision.” Id.; see

also id. at 488 (mentioning twice that the plaintiff was entitled to the commissions under New York

law because the agreement was silent on the issue). In the present case, in contrast, ¶ 5-B of the

contract unambiguously addresses the issue of post-termination commissions and renders resort to

default principles of state contract law unnecessary. Because Aerel’s ambiguity argument finds no

support in the decisions of either this court or the Ohio courts, we agree with the district court’s

conclusion that the contract was unambiguous. 

C. The district court’s decision to strike two paragraphs from

Cosentini’s affidavit

Aerel next attacks the district court’s decision to strike paragraphs 7 and 11 from the postdeposition affidavit submitted by Cosentini. Had those sections of the affidavit not been excluded,
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 7

Aerel contends, there would have been a genuine issue of material fact as to whether the 2000

contact was orally modified after its signing. The district court based its decision on the rule that

a party cannot create a disputed issue of material fact by filing an affidavit that contradicts the

party’s earlier deposition testimony. See Penny v. United Parcel Service, 128 F.3d 408, 415 (6th

Cir. 1997) (“[A] party cannot create a genuine issue of material fact by filing an affidavit, after a

motion for summary judgment has been made, that essentially contradicts his earlier deposition

testimony.”); see also Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (establishing

this general principle). According to Aerel, the district court erred by extending the rule announced

in Reid—which applies where the later affidavit “essentially contradicts” the earlier testimony—to

a situation where the affidavit covers a topic omitted in the prior testimony.

We will not overturn a district court’s decision to grant or deny a motion to strike an affidavit

unless the lower court abused its discretion. Int’l Union, United Automobile, Aerospace, and

Agricultural Implement Workers of Am. v. Aguirre, 410 F.3d 297, 304 (6th Cir. 2005) (applying the

abuse-of-discretion standard in evaluating a challenge to the district court’s decision to strike the

affidavit of an expert witness). A district court abuses its discretion when it “relies on erroneous

findings of fact, applies the wrong legal standard, misapplies the correct legal standard when

reaching a conclusion, or makes a clear error of judgment.” Reeb v. Ohio Dept. of Rehabilitation

and Correction, 435 F.3d 639, 644 (6th Cir. 2006). 

In striking the two paragraphs from Cosentini’s affidavit, the district court relied both on the

general rule announced in Reid and also on three unpublished opinions from this court applying that

rule. Aerel, 371 F. Supp. 2d at 942 (citing the three unpublished decisions of Lockard v. General

Motors Corp., 52 F. App’x 782, 788-89 (6th Cir. 2002), Smith v. Consolidated Rail Corp., No. 95-

3727, 1996 WL 366283, at *4 (6th Cir. 1996), and Rosinski v. Electronic Data Systems Corp., No.

90-2133, 1991 WL 105747, at *6 (6th Cir. 1991) (per curiam)). This court’s decision in Smith v.

Consolidated Rail Corp. provides little insight into the present case because that decision concerned

only the basic factual setting addressed in Reid, where the deponent had been “specifically

questioned” about the key factual issue. See Smith, 1996 WL 366283, at *4; Reid, 790 F.2d at 460.

The Rosinski decision, however, expands the Reid rule to cover a situation in which the laterfiled affidavit revealed an omission in the party’s deposition testimony. See Rosinski, 1991 WL

105747, at *6 (striking an affidavit that, though not directly contradictory, “point[ed] to a significant

omission in” the plaintiff’s deposition testimony). Finally, the court in Lockard appears to have

recast one of the policy justifications underlying the Reid rule—that a party’s “ample opportunity

during discovery to present evidence provides courts with reason to prevent that party from

introducing new evidence in an affidavit opposing summary judgment”—as an independent ground

for striking portions of an affidavit. See Lockard, 52 F. App’x at 789 (citing Biechele v. Cedar

Point, Inc., 747 F.3d 209, 215 (6th Cir. 1984)). 

In our opinion, the expansive view of the Reid rule adopted in the latter two of these

nonprecedential opinions is unwarranted. The rule set forth in Reid is grounded on the sound

proposition that a party should not be able to create a disputed issue of material fact where earlier

testimony on that issue by the same party indicates that no such dispute exists. Reid and its progeny

have thus barred the nonmoving party from avoiding summary judgment by simply filing an

affidavit that directly contradicts that party’s previous testimony. See, e.g., Peck v. Bridgeport

Machines, Inc., 237 F.3d 614, 619 (6th Cir. 2001) (holding that a post-deposition affidavit submitted

by the plaintiff’s expert was “not cognizable for purposes of the summary judgment decision”

because it was “plainly contradictory” to the expert’s previous deposition testimony).

This is a far cry, however, from preventing a party who was not directly questioned about

an issue from supplementing incomplete deposition testimony with a sworn affidavit. Such an

affidavit fills a gap left open by the moving party and thus provides the district court with more
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 8

information, rather than less, at the crucial summary judgment stage. Because the deponent is under

no obligation to volunteer information not fairly sought by the questioner, we see no reason to apply

Reid and its progeny to such a situation. See Bass v. City of Sioux Falls, 232 F.3d 615, 618 (8th Cir.

1999) (reversing the district court’s decision to disregard an allegedly inconsistent affidavit because

the deponent “had no duty to volunteer [the relevant] information during the deposition absent a

question from plaintiffs’ counsel seeking that information”); see also In re B-E Holdings, Inc., 240

B.R. 751, 753 (Bankr. E.D. Wisc. 1999) (observing that although deponents must appear and

provide forthright answers, they need not “volunteer information, explain trial strategies, or reveal

privileged information”). 

Our conclusion is in accord with the variations of the Reid rule adopted by our sister circuits.

As the Supreme Court has observed, the lower federal courts 

have held with virtual unanimity that 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.

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (collecting cases). These rules

invariably reflect the importance of distinguishing legitimate efforts to supplement the summary

judgment record from attempts to create a sham issue of material fact. The Fifth Circuit, for

example, has held that a nonmoving party “cannot defeat a motion for summary judgment by

submitting an affidavit [that] directly contradicts, without explanation, his previous testimony.”

Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984). That court does not,

however, permit a district court to strike or “disregard a party’s affidavit merely because it conflicts

to some degree with an earlier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94

(5th Cir. 1980) (holding that the district court erred in refusing to consider an affidavit that was “not

inherently inconsistent” with the party’s deposition testimony) (emphasis added). Rather, the postdeposition affidavit should be considered unless “the issue raised by the contradictory affidavit

constituted a sham.” Id. at 894; see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th

Cir. 1996) (distinguishing Bone as a case in which the later affidavit “simply supplement[ed] the

previous sworn deposition”). 

Other circuits likewise permit district courts to consider post-deposition affidavits that appear

to contradict prior deposition testimony so long as the affidavit is not intended to create a sham issue

of fact—that is, if the nonmoving party was confused during the deposition or has some other

legitimate justification. See, e.g., Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (holding

that a contradictory affidavit should be disregarded when it attempts to create a sham fact issue, and

listing factors to be used in determining whether the affidavit creates such an issue); Miller v. A.H.

Robins, Co., 766 F.2d 1102, 1104 (7th Cir. 1985) (holding that “an inconsistent affidavit may

preclude summary judgment . . . if the affiant was confused at the deposition and the affidavit

explains those aspects of the deposition testimony or if the affiant lacked access to material facts and

the affidavit sets forth the newly-discovered evidence”). Both these rules and the exceptions thereto

recognize, as the Tenth Circuit has cogently explained, “that the utility of summary judgment as a

procedure for screening out sham fact issues would be greatly undermined if a party could create

an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. 

As we interpret Reid and the other relevant authorities, then, a district court deciding the

admissibility of a post-deposition affidavit at the summary judgment stage must first determine

whether the affidavit directly contradicts the nonmoving party’s prior sworn testimony. See

Albertson, 749 F.2d at 228 (employing the “directly contradicts” language). A directly contradictory
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 9

affidavit should be stricken unless the party opposing summary judgment provides a persuasive

justification for the contradiction. See A.H. Robins, 766 F.2d at 1104 (setting forth instances in

which “an inconsistent affidavit may preclude summary judgment”). If, on the other hand, there is

no direct contradiction, then the district court should not strike or disregard that affidavit unless the

court determines that the affidavit “constitutes an attempt to create a sham fact issue.” See Franks, 796 F.2d at 1237. A useful starting point for this inquiry is the nonexhaustive list of factors

articulated by the Tenth Circuit in Franks, where the court noted that the existence of a sham fact

issue turns on “whether the affiant was cross-examined during his earlier testimony, whether the

affiant had access to the pertinent evidence at the time of his earlier testimony or whether the

affidavit was based on newly discovered evidence, and whether the earlier testimony reflects

confusion [that] the affidavit attempts to explain.” Id. 

The district court in the present case struck portions of Cosentini’s affidavit that admittedly

did not directly contradict his deposition testimony, but rather revealed information that was not

fully explored during that testimony. See Aerel, 371 F. Supp. 2d at 942 (recognizing that paragraphs

7 and 11 did “not represent a direct contradiction between Cosentini’s Affidavit and prior deposition

testimony”). Absent a direct contradiction, as we have said, the district court should not have struck

those two paragraphs unless they were added in an attempt to create a sham fact issue. But nothing

in the record suggests that Cosentini attempted to “create an issue of fact merely by submitting an

affidavit contradicting his own prior testimony.” See Franks, 796 F.2d at 1237. The transcript of

Cosentini’s deposition testimony instead reveals that he was questioned about his understanding of

the contract and that he referred to discussions with PCC Sales Director Alan Peterson, but that

PCC’s counsel quickly shifted the inquiry to topics other than Cosentini’s discussions without fully

exploring the issue. Paragraphs 7 and 11 of the affidavit are therefore properly viewed as an

“attempt[] to explain” the oral understandings that were alluded to but not explored during the threehour deposition. See id. (listing “whether the earlier testimony reflects confusion [that] the affidavit

attempts to explain” as one factor in determining the existence of sham fact issue). 

The district court’s ruling, though consistent with the unpublished decisions of this court

discussed above, therefore strikes us as a potentially significant extension of the principle announced

in Reid—one that threatens to transform the straightforward, objective inquiry needed to decide

whether an affidavit contradicts deposition testimony into a more subjective evaluation of a party’s

prior “opportunit[ies] during discovery to present evidence” and whether that party could have or

should have been more forthcoming in her deposition. See Lockard, 52 F. App’x at 789. This court

has not yet endorsed such an extension of Reid in any published decision, and we decline to do so

today. 

We do not need to decide, however, whether the district court’s apparent extension of the

Reid rule or its reliance on this court’s unpublished decisions rose to the level of an abuse of

discretion. This is because, even if the district court improperly applied that rule and should have

accepted the affidavit in full, PCC was still entitled to summary judgment. Cf. Lockard, 52 F. App’x

at 790 (“More importantly, even if the district court had acted improperly in granting [the

defendant’s] motion to strike, any error would not change the disposition of the present case.”). 

Under Ohio law, an oral modification to a written contract, other than a contract for the sale

of goods, must be supported by additional consideration to be binding. Valmac Industries, Inc. v.

Ecotech Machinery, Inc., 738 N.E.2d 873, 875 (Ohio Ct. App. 2000) (applying this rule in assessing

the validity of a forum-selection clause); see also Richland Builders v. Thome, 100 N.E.2d 433, 437

(Ohio Ct. App. 1950) (“An oral agreement, to have the effect to alter or modify the terms of a prior

written contract, must be a valid and binding contract of itself, resting upon some new and distinct

consideration.”). Consideration is defined as “bargained for legal benefit and/or detriment.”

Kostelnik v. Helper, 770 N.E.2d 58, 61 (Ohio 2002) (citation omitted). “[E]ither a detriment to the
No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 10

promisee or a benefit to the promisor” suffices to establish consideration under Ohio law. Ford v.

Tandy Transp., Inc., 620 N.E.2d 996, 1009 (Ohio Ct. App. 1993). 

In the present case, PCC’s alleged post-signing promise to pay the disputed commissions is

not supported by “new and distinct consideration.” See Richland Builders, 100 N.E.2d at 437. The

purported promise to pay was not exchanged for anything that benefitted PCC or caused a detriment

to Aerel. See Ford, 620 N.E.2d at 1009. Instead, the promise—if in fact it was made—would

constitute a one-sided deal in which PCC gratuitously agreed to pay additional commissions for

services that Aerel had already agreed to provide in the written agreement. The result of such a deal

would not have been “regarded by [PCC] as beneficial enough to induce [its] promise.” See Carlisle

v. T & R Excavating, Inc., 704 N.E.2d 39, 43 (Ohio Ct. App. 1997) (holding that a husband’s desire

to help his wife’s business in order to increase marital income did not constitute consideration).

Aerel’s oral-modification argument therefore fails as a matter of law, entitling PCC to summary

judgment even if Cosentini’s affidavit should have been admitted in its entirety.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.