January 2004 Term
LORA D. KISER,
Plaintiff Below, Appellant
CARREL MAYO CAUDILL, M.D.
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 92-C-8879
Submitted: April 27, 2004
Filed: June 23, 2004
1. 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Syl. Pt. 5, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598 (1960). Syllabus Point 5, Jones v. Patterson Contracting, Inc., 206 W.Va. 399, 524 S.E.2d 915 (1999).
2. A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove. Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
defeat summary judgment, an affidavit that directly contradicts prior deposition
testimony is generally insufficient to create a genuine issue of fact for trial,
unless the contradiction is adequately explained. To determine whether the witness's
explanation for the contradictory affidavit is adequate, the circuit court should
examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of
the witness; (2) whether the witness had access to pertinent evidence or
information prior to or at the time of his or her deposition, or whether
the affidavit was based upon newly discovered evidence not known or available
at the time of the deposition; and (3) whether the earlier deposition testimony
reflects confusion, lack of recollection or other legitimate lack of clarity
that the affidavit justifiably attempts to explain.
Maynard, Chief Justice:
This case is before this
Court upon appeal of a final order of the Circuit Court of Kanawha County
entered on December 5, 2002. Pursuant to that order, the circuit court granted
summary judgment in favor of the appellee and defendant below, Carrell Mayo
Caudill, M.D., in this medical malpractice action filed by the appellant
and plaintiff below, Lora D. Kiser. In this appeal, Ms. Kiser contends that
the circuit court erred by granting Dr. Caudill's motion to strike the affidavit
of James Barnes. M.D., which was submitted in opposition to the motion for
summary judgment. Ms. Kiser further contends that the circuit court erred
by finding that Dr. Barnes, her sole expert witness, was not qualified to
testify as to the applicable standard of care, and accordingly, granting
Dr. Caudill's motion for summary judgment.
This Court has before it
the petition for appeal, the entire record, and the briefs and argument of
counsel. For the reasons set forth below, the circuit court's final order
On December 2, 1992, Ms. Kiser filed this medical malpractice action against Dr. Caudill. She alleged, inter alia, that Dr. Caudill failed to perform the proper surgical procedure, failed to accurately diagnose her condition during the exploratory surgery, and failed to advise of the proper post-operative treatment. After several years of discovery, the case was scheduled for trial on August 4, 1997.
During the pre-trial hearing on July 28, 1997, the circuit court ruled that James Barnes, M.D., would not be permitted to testify on behalf of Ms. Kiser because he was untimely disclosed as an expert witness. Subsequently, the case was continued, and the trial did not begin until July 26, 1999. Despite the two-year continuance, Dr. Barnes was still not permitted to testify. Shortly after the trial began, the circuit court ruled that Ms. Kiser's other expert witness, Charles Brill, M.D., was not qualified to testify regarding the applicable standard of care. As a result, Ms. Kiser was not able to sustain a prima facie case of medical negligence, and the circuit court granted judgment as a matter of law in favor of Dr. Caudill.
On appeal, this Court reversed the circuit court's order granting judgment as a matter of law in favor of Dr. Caudill. Kiser v. Caudill, 210 W.Va. 191, 557 S.E.2d 245 (2001) (Kiser I). We remanded the case for further proceedings after finding that Dr. Barnes should have been recognized as an expert witness and discovery should have been reopened to allow the appellee to depose Dr. Barnes. Kiser I, 210 W.Va. at 198, 557 S.E.2d at 252. In so finding, we explained that the circuit court's initial ruling excluding Dr. Barnes from testifying was proper. However, since the trial was subsequently continued for another two years, we concluded that the circuit court abused its discretion by refusing to recognize Dr. Barnes as an expert witness in this case and to allow him to testify at trial. Id. (See footnote 1)
On remand, discovery was reopened so that counsel for Dr. Caudill could depose Dr. Barnes. Thereafter, Dr. Caudill filed a motion to exclude the testimony of Dr. Barnes and a motion for summary judgment. Dr. Caudill claimed that Dr. Barnes had testified during his deposition that he did not know what the standard of care was for a neurosurgeon performing the surgical procedure involved in this case, i.e., untethering a spinal cord in 1973. In response, Ms. Kiser submitted an affidavit from Dr. Barnes. Dr. Caudill, in turn, moved to strike the affidavit.
Upon review, the circuit
court determined that Dr. Barnes' affidavit contradicted his deposition testimony
and was an attempt to fabricate an issue of fact in order to defeat
a motion for summary judgment. Thus, the circuit court granted Dr.
Caudill's motion to strike the affidavit. The circuit court also found that
Dr. Barnes was not qualified to render expert testimony regarding the applicable
standard of care. Accordingly, the circuit court granted Dr. Caudill's motion
for summary judgment. This appeal followed.
Ms. Kiser also asserts that the circuit court erred by granting summary judgment in favor of Dr. Caudill. Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows 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 Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court held: A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. This Court has also observed that:
Summary judgment is appropriate
if, from the totality of the evidence presented, the record could not lead a
rational trier of fact to find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential element of the
case that it has the burden to prove.
Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With these standards in mind, we now address the issues in this case.
This Court recently reviewed a circuit court's decision to strike an affidavit of a defendant doctor's medical expert in another medical malpractice case. In State ex rel. Krivchenia v. Karl, W.Va. , S.E.2d (No. 31660, Mar. 16, 2004), the circuit court entered an order limiting the testimony of the defendant's expert because the expert indicated in his deposition that he was not going to render an opinion concerning the applicable standard of care. The defendant filed a motion for reconsideration and attached an affidavit from his expert indicating that he would, in fact, render an opinion that the defendant did not deviate from the standard of care. The circuit court denied the motion for reconsideration, and thus, the defendant sought a writ of prohibition from this Court to prohibit enforcement of the order.
We issued the writ in Krivchenia stating that [b]ased upon [the expert's] affidavit . . . the circuit court should have granted the motion for reconsideration and permitted [the expert] to render an opinion on the standard of care. Slip op. at 9. The expert had testified during his deposition that he did not understand the legal definition of the standard of care and therefore, could not render such an opinion. (See footnote 2) In his affidavit, the expert indicated that he had been advised of the legal definition of the standard of care as it applied to the defendant and would render an opinion that the defendant did not deviate from that standard with regard to his treatment of the plaintiff. Thus, we concluded that the expert was qualified to testify and therefore, should be permitted to give his opinion.
In the case sub judice, Dr. Barnes testified that he only knew the standard of care with regard to tethered spinal cords at the hospital where he was working in 1973, which was the Children's Hospital in Columbus, Ohio. When asked whether he knew what the standard of care was at any other hospital, he replied, No, I don't. He also said, I don't remember what the standard of care at other places was at that time. However, when Dr. Barnes provided an affidavit for Ms. Kiser in response to the motion for summary judgment, he indicated that the standard of care was the same for neurosurgeons in West Virginia as it was for neurosurgeons in Columbus, Ohio, in 1973, and that he would testify that Dr. Caudill breached the standard of care by not recognizing and untethering Ms. Kiser's spinal cord.
Unlike Krivchenia, where the defendant's expert obviously misunderstood what he was being asked, Dr. Barnes did not express any confusion with regard to the questions posed by defense counsel during his deposition. Over the course of two and a half hours, Dr. Barnes was repeatedly questioned about the applicable standard of care. His answers were clear and unambiguous. He simply said that he had no knowledge of the applicable standard of care outside of the hospital where he practiced in 1973. Nonetheless, in his subsequent affidavit, which was submitted only after Dr. Caudill moved for summary judgment, Dr. Barnes completely contradicted his deposition testimony without any explanation. In contrast to his prior testimony, he indicated in his affidavit that the standard of care in 1973 was the same in West Virginia as it was in Ohio, and that Dr. Caudill had breached that standard. In light of the obvious contradictions between Dr. Barnes' deposition testimony and his affidavit, we are unable to find that the circuit court erred by disregarding the affidavit.
We recognize, of course, that Rule 56 of the West Virginia Rules of Civil Procedure provides for the submission of affidavits to both support and oppose motions for summary judgment. (See footnote 3) Nevertheless, we believe that a court must be free to disregard a conflicting affidavit. As the Second Circuit Court of Appeals explained in Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969):
If 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
See also Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983) (If testimony under oath, however, can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.). Moreover, this Court has previously held that [a]n expert witness' affidavit that is wholly conclusory and devoid of reasoning does not comply with West Virginia Rule of Civil Procedure 56(e). Syllabus Point 6, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). At the same time, we realize that:
[T]here are situations in which sworn testimony can quite properly be corrected by a subsequent affidavit. Where the witness was confused at the earlier deposition or for some other reason misspoke, the subsequent correcting or clarifying affidavit may be sufficient to create a material dispute of fact.
Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 705 (3rd Cir.
1988). Such was the case in Krivchenia.
In order to address the
issue of a conflicting affidavit, most federal courts have adopted what is
known as the sham affidavit rule. See Colantuoni v. Alfred
Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); Perma
Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir.
1969); Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703,
705 (3rd Cir. 1988); Rohrbough v. Wyeth Laboratories, Inc.,
916 F.2d 970, 975 (4th Cir. 1990); S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996); Reid
v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); Miller
v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir. 1985); Camfield
Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365- 66 (8th Cir.
1983); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir.
1975); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
1986); Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc.,
736 F.2d 656, 657 (11th Cir. 1984); Sinskey v. Pharmacia Ophthalmics,
Inc., 982 F.2d 494, 498 (Fed. Cir. 1992). Basically, the sham affidavit rule
precludes a party from creating an issue of fact to prevent summary judgment
by submitting an affidavit that directly contradicts previous deposition
testimony of the affiant.
For example, in Colantuoni, the
plaintiff, a sheet metal worker, filed suit against, inter alios, a general
contractor and a ladder manufacturer after he fell from the upper section of
an extension ladder. During his deposition, the plaintiff testified that he realized
the risks inherent in using only the upper portion of an extension ladder. He
said he knew that since the ladder did not have rubber feet, there was a greater
chance that it might slip. However, after the defendants moved for summary judgment
asserting that the doctrine of assumption of the risk barred recovery for the
plaintiff's negligence and products liability claims, the plaintiff submitted
an affidavit claiming that he had no knowledge of the ladder's propensity to
slip. The United States Court of Appeals for the First Circuit upheld the district
court's decision to disregard the affidavit. The Court explained that, When
an interested witness has given clear answers to unambiguous questions, he cannot
create a conflict and resist summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation of why the testimony
is changed. 44 F.3d at 4-5 (citations omitted).
Similarly, in Rohrbough, the United States Court of Appeals for the Fourth Circuit declared that '[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.' 916 F.2d at 975 (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)). In that case, the parents of a child who developed a seizure disorder after she was administered a vaccine brought suit against the drug manufacturer. The plaintiffs' expert was directly questioned regarding whether or not there was a causal link between the vaccine and the child's symptoms. The doctor refused to opine that there was such a link. However, when confronted with the defendant's motion for summary judgment, the doctor submitted an affidavit stating that the vaccine caused the injuries in question. Applying its reasoning from Barwick, the Fourth Circuit upheld the district court's decision to disregard the affidavit.
As indicated above, the sham affidavit rule is not absolute. There are some exceptions. For instance, a subsequent affidavit may be allowed to clarify ambiguous or confusing deposition testimony. Adelman-Tremblay v. Jewel Companies, Inc., 859 F.2d 517, 520 (7th Cir. 1988). In addition, [a] contradictory supplemental affidavit is also permissible if it is based on newly discovered evidence. Id. See also Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir. 1995) (To determine whether a contrary affidavit seeks to create a sham fact issue, we determine whether: (1) 'the affiant was cross-examined during his earlier testimony;' (2) '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 (3) 'the earlier testimony reflects confusion which the affidavit attempts to explain.' (citation omitted)).
Consistent with the above, this Court noted in Williams v. Precision Coil, Inc., 194 W.Va. 52, 60 n.12, 459 S.E.2d 329, 337 n.12 (1995), that:
A conflict in the evidence does
not create a genuine issue of fact if it unilaterally is induced.
For example, when a party has given clear answers to unambiguous questions during
a deposition or in answers to interrogatories, he does not create a trialworthy
issue and defeat a motion for summary judgment by filing an affidavit that clearly
is contradictory, where the party does not give a satisfactory explanation of
why the testimony has changed. 10A Charles A. Wright, Arthur R. Miller & Mary
K. Kane, Federal Practice and Procedure § 2726 at 30-31 (2d ed. Supp.1994).
This Court also observed in Williams that:
Rule 56 of the West Virginia Rules of Civil Procedure plays an important role in litigation in this State. It is 'designed to effect a prompt disposition of controversies on their merits without resort to a lengthy trial,' if there essentially is no real dispute as to salient facts or if it only involves a question of law. Painter [v. Peavy], 192 W.Va. [189,] 192 n. 5, 451 S.E.2d [755,] 758 n. 5, quoting Oakes v. Monongahela Power Co., 158 W.Va. 18, 22, 207 S.E.2d 191, 194 (1974). Indeed, it is one of the few safeguards in existence that prevent frivolous lawsuits from being tried which have survived a motion to dismiss. Its principal purpose is to isolate and dispose of meritless litigation.
194 W.Va. at 58, 459 S.E.2d at 335. We believe that the sham affidavit rule furthers the purposes of summary judgment because it helps circuit court judges determine whether there is in fact a genuine issue for trial. We therefore, adopt the rule. (See footnote 4)
Accordingly, utilizing a concise formulation of the rule announced by the Supreme Court of Wisconsin in Yahnke v. Carson, 236 Wis.2d 257, 270, 613 N.W.2d 102, 109 (2000), (See footnote 5) we now hold that to defeat summary judgment,
an affidavit that directly contradicts
prior deposition testimony is generally insufficient to create a genuine issue
of fact for trial, unless the contradiction is adequately explained. To determine
whether the witness's explanation for the contradictory affidavit is adequate,
the circuit court should examine: (1) Whether the deposition afforded the opportunity
for direct and cross-examination of the witness; (2) whether the witness had
access to pertinent evidence or information prior to or at the time of his or
her deposition, or whether the affidavit was based upon newly discovered evidence
not known or available at the time of the deposition; and (3) whether the earlier
deposition testimony reflects confusion, lack of recollection or other legitimate
lack of clarity that the affidavit justifiably attempts to explain.
As discussed above, in this case,
the affidavit of Dr. Barnes clearly contradicted his deposition testimony. Contrary
to Ms. Kiser's contentions, Dr. Barnes did not express any confusion during his
deposition regarding the questions he was asked, nor did he merely restate his
opinions in his affidavit. Therefore, based on all the above, the circuit court
did not err by disregarding Dr. Barnes' affidavit.
The circuit court determined that Dr. Barnes was not qualified to testify because his deposition showed that he has no more than a casual familiarity with the standard of care. The circuit court further noted that Dr. Barnes testified that he was not an expert on tethered spinal cords and that he never wrote on the subject, nor performed any scientific studies. Finally the court observed that Dr. Barnes could not cite any medical textbooks or literature to support his opinions regarding tethered spinal cord diagnosis and treatment in 1973.
We agree with the circuit
court's reasoning. As this Court explained in Kiser I, '[T]o
qualify a witness as an expert on [the] standard of care, the party offering
the witness must establish that the witness has more than a casual familiarity
with the standard of care and treatment commonly practiced by physicians
engaged in the defendant's specialty.' 210 W.Va. at 195-96, 557 S.E.2d
at 249-50 (citation omitted). As discussed above, Dr. Barnes indicated during
his deposition that he was not familiar with the standard of care regarding
tethered spinal cords at hospitals other than the Children's Hospital in
Columbus, Ohio, where he worked. Thus, Dr. Barnes was not qualified to testify
as an expert regarding the applicable standard of care in this case.
of affidavits; further testimony; defense required. -- Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in
an affidavit shall be attached thereto or served therewith. The court may
permit affidavits to be supplemented or opposed by depositions, answers
to interrogatories, or further affidavits. When a motion for summary judgment
is made and supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the adverse party's pleading,
but the adverse party's response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.