"I Don't Recall": The Sixth Circuit's Recent Victor v. Reynolds Decision And What It Means For Summary Judgment Practice

Last week, the US Court of Appeals for the Sixth Circuit issued a noteworthy decision that a party cannot meet its burden of proof by relying merely on testimony that witnesses "have no recollection" of a specific event occurring. In Victor v. Reynolds, the Court overturned a jury verdict based on "lack of recollection" testimony because such testimony cannot meet a plaintiff's burden of proof. And if such testimony cannot sustain a jury verdict, then it would not be sufficient to survive summary judgment either. This Alert offers guidance on how Victor affects federal summary judgment practice, which often provides defendants with their first real opportunity to defeat claims against them.

Case Summary

In 2019, police officers arrested Michael Victor after an altercation outside a bar in Gaylord, Michigan, and booked him into the Otsego County Jail. Because Victor suffered from epilepsy, his mother brought his anti-seizure medication to the jail. She stressed to the officers that Victor would have a seizure if he did not take it. Despite this warning, Victor did not receive his medication until his release the next morning. Shortly after his release, Victor suffered a seizure, fell face-first onto the ground, and sustained serious injuries including a broken jaw.

Victor later filed a § 1983 lawsuit against the jail's health care contractor for being deliberately indifferent to his medical needs. After Victor won a jury verdict, the Federal District Court granted judgment as a matter of law to the health care contractor because Victor relied on "lack of recollection" evidence to prove his case. In short, Victor could not point to any testimony that jail officials called the health care contractor to give Victor his meds—the contractor's employee testified that she had no "recollection" of receiving or missing any call from a jail officer on the day in question, and the officers each testified to a similar lack of memory about whether any of them called the contractor. The District Court concluded that this evidence did not satisfy Victor's burden of proof. Victor appealed, and the Sixth Circuit affirmed.

On appeal, the central dispute was whether the jail officers had told the health care contractor that Victor needed to take his medication during his overnight detention. The health care contractor couldn't have known about Victor's medical needs—and thus couldn't have ignored those needs—without the officers telling the contractor's on-duty employee about them. But to prove that this communication happened, Victor's only admissible evidence was testimony from the various witnesses that none of them remembered whether any officer had told the employee.

The Sixth Circuit held that this lack of recollection was simply not enough to show that communication between the officers and the care provider had occurred. A lack of memory about a fact does not prove that fact. At most, it creates a state of equipoise, or equal balance, about whether the fact is true. And because Victor bore the burden of proving that the officers had told the health care contractor about his medication, a state of equipoise meant that he could not prevail.

Legal Standard for Summary Judgment

Although Victor dealt with judgment as a matter of law after trial, it is equally applicable to summary judgment. Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The non-moving party bears the burden of establishing that a genuine dispute of material fact exists for trial.

"Lack of Recollection" Testimony is Insufficient

In Victor, the Sixth Circuit explained that testimony from witnesses who state that they "do not remember" or "cannot recall" whether a critical event occurred cannot satisfy a party's burden to present sufficient evidence for a reasonable jury to find that the event actually happened. This principle is not limited to § 1983 actions or health care lawsuits. It applies across all types of federal cases—including contract disputes, employment litigation, personal injury claims, and commercial matters.

The insufficiency of "lack of recollection" testimony rests on two fundamental evidentiary principles:

1. Burden of Proof Requirements: A party must affirmatively prove that it is "more likely than not" that the disputed event occurred. Testimony expressing no memory of an event provides no probative value toward meeting this standard.
2. Equipoise Standard: When testimony leaves the factual record in equipoise, this fails to satisfy the burden of proof.

Strategic Recommendations

1. Case Assessment: Evaluate the strength of factual disputes early in litigation, recognizing that a plaintiff cannot meet its burden of proof based on only "cannot recall" testimony.
2. Corroboration Requirements: Never rely solely on "cannot recall" witness testimony. Always seek corroborating documentary evidence, physical evidence, or testimony from witnesses with clear recollections. When key witnesses cannot recall critical events, identify alternative sources of proof such as contemporaneous documents, electronic records, or other witnesses.
3. Timing Considerations: Address potential memory issues early in litigation by conducting depositions promptly and preserving all relevant documentation.
4. Settlement Considerations: The "lack of recollection" standard may affect case valuations and settlement negotiations when key evidence depends on uncertain witness testimony.

Conclusion

The principle that "lack of recollection" testimony cannot create genuine disputes of material fact represents a significant clarification of summary judgment standards in Michigan federal courts and around the Sixth Circuit. This standard applies across all areas of federal litigation and requires more rigorous approaches to evidence development and witness preparation.

Action Items:

• Review pending cases for potential vulnerabilities related to uncertain witness testimony.
• Develop and implement enhanced documentation protocols.
• Update discovery strategies to emphasize corroborating evidence development.
• Revise witness preparation procedures to focus on specific, factual testimony.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.