Could a reasonable factfinder rule for Respect on its conversion claim on the sole basis of Gravlin's opinion? That question can only be answered "no," for the Gravlin Affidavit is so completely undercut by Committee's response that it could not support a finding by a preponderance of the evidence that Committee used Respect's plates. One need not be an expert on printing technology to know that the same plate cannot produce a page with different photographs, and there is no hint that Respect's plates were somehow altered by cutting out sections and replacing them with other sections of different plates so as to substitute one photograph for another or to substitute a differently cropped version of the same photograph. Indeed, even if such a surgical job were possible (and Respect does not even urge that alternative), what in the world would induce its use when other means such as that Committee says it employed are so easy to follow? All that can really be extracted from Gravlin's affidavit is that he looked at one page (or more than one page) of the workbook and spotted a few similarities that seemed significant to him. Gravlin did not notice, or chose not to mention, significant differences that demolish his conclusion.
Ordinarily, of course, a district court is not to evaluate the credibility or persuasiveness of evidence at the summary judgment stage--a point that this Court has repeatedly stressed in its own opinions (see, e.g., United States v. Kitsos, 770 F. Supp. 1230, 1237 (N.D. Ill. 1991)). "But a court is not required to stand helpless just because a litigant tenders something that purports to create a disputed factual issue" (id., emphasis in original). Evidence that "is merely colorable or is not significantly probative" does not foreclose summary judgment ( Anderson, 477 U.S. at 249-50 (citation omitted)), and even on summary judgment the district court should not credit testimony that is inherently incredible ( Simms v. Reiner, 419 F. Supp. 468, 475 (N.D. Ill. 1976))--a standard met where, as here, the nonmoving party's story is "irrefutably contradicted by documentary evidence" ( Stewart v. RCA Corp., 790 F.2d 624, 628 (7th Cir. 1986)).
Patent law supplies a useful analogy. In patent cases--which generally turn on technical disputes not easily resolved by a lay trier of fact--it is well-settled that conflicts over the reliability of expert testimony are generally best resolved at trial, and not on summary judgment ( Landau v. J.D. Barter Constr. Co., 657 F.2d 158, 161-62, 211 U.S.P.Q. (BNA) 861 (7th Cir. 1981)). But an exception to that rule is made where the issues, though technical, are so obviously understandable to a layperson that an issue is "not materially in dispute" even though expert testimony is offered ( Schutt Mfg. Co. v. Riddell, Inc., 673 F.2d 202, 206, 216 U.S.P.Q. (BNA) 191 (7th Cir. 1982)).
For the reasons just discussed, Respect's conversion claim must be said to fall within the scope of a parallel exception. Only a brief visual examination of the two versions is required to see beyond question that different plates were used. Gravlin's affidavit falls of its own weight, and Respect is left with nothing to counter Committee's denials and Susan Fremgen's express refutation of any conversion of the plates. There is nothing to submit to a jury, or for this Court to consider if it were to be the factfinder, to resolve what turns out to be a total nonissue.
No genuine issue of material fact exists as to either the contract claim or the conversion claim, and Committee is entitled to a judgment on each claim as a matter of law. Both Count III and Count VI are dismissed. Counsel for the parties are directed to appear before this Court at 8:45 a.m. January 10, 1992 for a status hearing on the future course of this action.
Milton I. Shadur
United States District Judge
Date: January 2, 1992