Expert Affidavit That Contradicts Prior Deposition Does Not Create Factual Issue to Prevent Summary Judgment

Unless Expert Sufficiently Explains Reason for the Contradiction

Pettiford v. Aggarwal, Slip Opinion No. 2010-Ohio-3237.
Montgomery App. No. 22736, 2009-Ohio-3642. Judgment of the court of appeals reversed, and cause remanded to the trial court for further proceedings.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., concurs in part and dissents in part.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3237.pdf

(July 14, 2010) The Supreme Court of Ohio ruled today that when the affidavit of a retained nonparty expert is submitted in opposition to a pending motion for summary judgment, and statements in the affidavit contradict testimony given by the same expert during a prior deposition, the affidavit does not create a “genuine issue of material fact” that prevents summary judgment unless the expert sufficiently explains the reason for the contradiction.

Applying that holding to a Montgomery County medical malpractice case, the Court reversed a decision of the 2nd District Court of Appeals and remanded the case to the trial court for further proceedings. The Court’s 5-2 majority decision was written by Justice Maureen O’Connor.

The case involved a suit filed by Barbara Pettiford of Dayton against Dr. Rajendra Aggarwal. Pettiford alleged that in analyzing a chest x-ray taken in 1999, Dr. Aggarwal negligently failed to detect a benign tumor in her lung.

Pettiford identified Dr. Trent Sickles as an expert witness to provide testimony in support of her claim. In responding to questions posed by Dr. Aggarwal’s attorneys during a pretrial deposition, Dr. Sickles indicated that he did not have an opinion regarding whether Dr. Aggarwal’s acts or omissions had resulted in Pettiford’s injuries, and did not plan to testify with regard to the issue of causation. Dr. Aggarwal subsequently filed a motion for summary judgment to dismiss Pettiford’s complaint, arguing that because she had not provided expert testimony attesting that her injuries were the result of the doctor’s acts or omissions, Pettiford had not met the requirements for her malpractice claim to proceed to trial.

In opposition to the summary judgment motion, Pettiford submitted an affidavit signed by Dr. Sickles stating that in his opinion Dr. Aggarwal’s failure to detect the tumor in 1999 was responsible for subsequent medical treatment that Pettiford received. Dr. Aggarwal filed a motion to strike the affidavit, citing a 2006 Supreme Court of Ohio decision, Byrd v. Smith, which held that an affidavit submitted by a party opposing summary judgment that contradicted the same person’s earlier deposition testimony, without a sufficient explanation for the contradiction, did not prevent an award of summary judgment. Without ruling on the motion to strike or stating the legal rationale for its decision, the trial court granted summary judgment in favor of Dr. Aggarwal.

Pettiford appealed. On review, the 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. In a divided opinion, the court of appeals held that the Supreme Court’s Byrd decision was not applicable because Byrd addressed only contradictory affidavits submitted by self-interested parties in a case, whereas the source of the disputed affidavit in this case was a third-party expert witness. The Supreme Court agreed to review the 2nd District’s decision and determine whether the legal reasoning of its Byrd decision also applies in cases where an affidavit submitted by a retained expert witness in opposition to a summary judgment motion contradicts testimony by that same expert in a prior deposition.

Writing for the majority, Justice O’Connor noted that a retained expert witness in a civil action has a close working relationship with the party on whose behalf he or she offers testimony, and also with that party’s attorney. Because of this and other parallels between a party and a retained expert witness, the majority determined that the rationale supporting the Byrd rule is germane in the case of a contradictory affidavit of a retained expert witness. Justice O’Connor wrote: “The retained expert witness is engaged to review the facts and offer opinion testimony on the essential, material elements of the claim at issue. In essence, the expert is an extended voice of the party and the proponent of the party’s claims. ... Unlike an attorney’s limited contact with a fact witness or a treating physician, an attorney’s direction of a retained, nonparty expert is significant, akin to the attorney’s direction of a party. The attorney directs the expert as to the subject matter upon which an opinion is needed, helps to determine what evidence the expert reviews, and works closely with the expert throughout the litigation to prove or defend against the causes of action.”

“ ... While the attorney technically does not represent the expert during the expert’s deposition, the attorney customarily prepares the expert for the deposition and supports the expert during the deposition just as he or she would with a party. And the attorney often acts during an expert’s deposition as he or she would act during a party’s deposition, objecting to opposing counsel’s questioning and rehabilitating the expert if necessary. If the attorney is dissatisfied with the expert’s deposition testimony or believes that a misstatement has been made, the attorney has the ability to clarify the deposition on the record. ... The numerous parallels between the degree of control an attorney has over a party and over a retained, nonparty expert lead us to the conclusion that Byrd’sruling should apply to contradictory affidavits of retained, nonparty experts to prevent the use of a self-serving affidavit to defeat summary judgment. If a retained, nonparty expert is permitted to defeat summary judgment at the eleventh hour by changing his or her opinions without a sufficient explanation, summary judgment will be rendered meaningless.”

“We hold that an affidavit of a retained, nonparty expert contradicting the former deposition testimony of that expert and submitted in opposition to a pending motion for summary judgment does not create a genuine issue of material fact to prevent summary judgment unless the expert sufficiently explains the reason for the contradiction.”

Applying that holding to the disputed affidavit in this case, Justice O’Connor wrote: “The determination of whether Dr. Sickles’ affidavit contradicted his deposition without a sufficient explanation for the alleged contradiction is a factual determination that is properly made by the trier of fact. The trial court did not expound on its reasoning for granting Dr. Aggarwal’s motion for summary judgment and never ruled on the motion to strike Dr. Sickles’ affidavit, and the appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd’sapplicability, the appropriate course is to remand this matter to the trial court to apply the analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in that analysis.

Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown entered a separate opinion in which he agreed with the majority’s remand of the case to the trial court for further proceedings, but dissented from its expansion of the Byrd decision to cases involving retained experts. He wrote: “From the record, it is clear that the nature of Dr. Sickles’s affidavit and deposition testimony has not been addressed explicitly by the lower courts. I agree with the majority that the determination of whether a contradiction exists should be made by the trial court. Therefore, I would remand this matter to the trial court for a determination of whether a contradiction exists. I find that no discussion of whether to extend the holding of Byrd to retained, nonparty experts is warranted until there has been a clear determination that the affidavit contradicts, not merely supplements, the deposition testimony.”

Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the ruling of the court of appeals.

Contacts
Lawrence J. White, 937.294.5800, for Barbara Pettiford.

Kevin W. Popham, 614.485.1800, for Dr. Rajendra K. Aggarwal.

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