Appeal from the Superior Court of the District of Columbia (CA-6593-99) (Hon. Joan Zeldon, Trial Judge)
Before Steadman, Schwelb and Washington, Associate Judges
The opinion of the court was delivered by: Steadman, Associate Judge
This medical malpractice case tests the scope of what is generally called the "sham affidavit" doctrine. The trial court granted the summary judgment motion of appellee Sibley Memorial Hospital on the ground that appellant Hinch had failed to establish by expert medical testimony that Sibley's alleged negligence had caused Hinch's claimed injuries. The trial court did so notwithstanding the fact that a medical expert by affidavit attached to Hinch's opposition to Sibley's summary judgment motion stated that in her opinion, to a reasonable degree of medical certainty, Sibley's negligent acts were more likely than anything else to have been the cause of Hinch's injuries. The trial court invoked the "sham affidavit" doctrine and disregarded this expert opinion because, in the trial court's view, the affidavit contradicted the prior deposition testimony of the expert. We conclude that the discrepancies between the deposition testimony and the assertion in the affidavit are not sufficiently stark and contradictory to warrant the application of the doctrine. Accordingly, we vacate the grant of summary judgment and remand for further proceedings.
Plaintiff-appellant Hinch was admitted to Sibley on September 13, 1996, complaining of abdominal pain. When Hinch was admitted, hospital employees noted her current medications on her chart, including Dilantin, an anticonvulsant. Hinch was diagnosed with small bowel obstruction after exploratory surgery on September 15. On September 20, Hinch began to suffer seizures while a central line (a catheter passed through her chest to her heart) was being removed. She was admitted to intensive care and remained comatose for three days. She later underwent extensive rehabilitation. The malpractice claim is based on Sibley's alleged failure to administer her Dilantin medication as prescribed and the consequent seizures and injury. Seeking summary judgment, Sibley asserted that Hinch had failed to show by expert medical testimony a causal connection between any mistakes made in administering Dilantin and Hinch's seizures.
In opposing the motion for summary judgment, Hinch relied principally upon a neurologist, Dr. Helene Emsellem, who had treated Hinch both before and after her hospitalization. *fn1 In her extensive deposition, Dr. Emsellem set forth a theory that Hinch suffered a prolonged seizure, possibly a status epilepticus, a potentially fatal condition, which could have resulted from the withdrawal of anti-seizure medication. Dr. Emsellem stated her theory was corroborated by the hospital records showing mistakes in dosing Dilantin and transcription errors from a treating physician's orders. However, Dr. Emsellem testified Hinch's condition could have arisen from other causes such as cardiopulmonary arrest or the removal of the central line. Because of the expert's lack of certainty, the court thought that this testimony established, at most, "that an event occurred in the hospital associated with a seizure and a cardiopulmonary arrest and that [Plaintiff's] baseline neurological deficits were worse afterwards." In the trial court's view, during her deposition, Dr. Emsellem was "unable or unwilling to state to a reasonable degree of medical certainty that Plaintiff's condition was caused by sub-therapeutic levels of Dilantin."
However, in her opposition to summary judgment, Hinch had supplemented the Emsellem deposition with a later signed affidavit. In this affidavit, Dr. Emsellem states that it is her opinion "to a reasonable degree of medical certainty, that the prolonged seizures suffered by Paget Hinch were precipitated by the failure to administer the prescribed Dilantin to Ms. Hinch, and are more likely than anything else to have been the cause of Ms. Hinch's injuries, as described more fully by me in written reports and deposition testimony provided in these proceedings." The trial court refused to consider the affidavit because, in the trial court's view, it contradicted the expert's deposition, rather than correcting or supplementing it, and was merely an attempt to create a sham issue of material fact. *fn2 Thus disregarding the affidavit, the trial court ruled that Hinch lacked sufficient evidence on the issue of causation to withstand the summary judgment motion.
We review the trial court's grant of summary judgment under the familiar and oft-stated de novo standard, making an independent review of the record in the light most favorable to the non-moving party. See, e.g., Boulton v. Inst. of Int'l Educ., 808 A.2d 499, 501-02 (D.C. 2002). Because Hinch makes a negligence claim, she has the burden of proving the applicable standard of care, a deviation from that standard by the defendant, and a causal connection between the deviation and her injury. District of Columbia v. Watkins, 684 A.2d 395, 401 (D.C. 1996). Only the third requirement is at issue here, *fn3 and it is not questioned that the affidavit of Dr. Emsellem, if taken into account, would be sufficient to withstand summary judgment. *fn4 Therefore, the issue on this appeal is whether the trial court properly disregarded that affidavit.
The "sham affidavit" doctrine appears to be traceable in its origin to Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969). Under the doctrine, courts will disregard an offsetting affidavit that is submitted to withstand a motion for summary judgment when the affidavit contradicts prior deposition testimony without adequate explanation and creates only a sham issue of material fact. Since Perma, all federal circuits that have considered applying the sham affidavit doctrine have adopted it in some form, as have most states. The purpose of the doctrine is to spare the moving party the needless effort and cost when a party's prior statements show no actual factual dispute exists. The doctrine also assures that frivolous lawsuits will not be extended merely by last minute affidavits which contradict prior testimony and are unexplained. *fn5
This court adopted and applied the sham affidavit doctrine in Hancock v. Bureau of Nat'l Affairs. 645 A.2d 588 (D.C. 1994). We expounded the doctrine in this jurisdiction as follows:
[w]hen, on a motion for summary judgment, a judge is confronted with a party's deposition and affidavit which contradict each other, the deposition is usually considered more reliable. However, "the court may not exclude the affidavit from consideration in the determination of the question whether there is any genuine issue as to any material issue of fact." The courts have noted an exception to his general prohibition against a judge excluding a contradictory affidavit from consideration of a summary judgment motion when the affidavit constitutes an attempt to create a sham issue of material fact. [citing, inter alia, Pyramid Securities Ltd. v. IB Resolution, Inc., 288 U.S. App. D.C. 157, 166, 924 F.2d 1114, 1123 (D.C. Cir. 1991), cert. denied, 116 L.Ed. 2d 57, 112 S.Ct. 85 (1991)] The affidavit will be considered if it clarifies confusing or ambiguous deposition testimony or is based on newly discovered evidence or evidence to which the deponent did not have access at the time of deposition. . . . "Where a party emphatically and wittingly swears to a fact, it bears a heavy burden - even in the summary judgment context - when it seeks to jettison its sworn statement." No explanation of the contradiction in appellant's statements and deposition was provided, and therefore the trial court properly concluded there was no genuine issue of material fact . . . . [645 A.2d at 590-91 (most citations omitted)]
Thus, for the doctrine to apply, the affidavit must clearly contradict prior sworn testimony, rather than clarify confusing or ambiguous testimony, and the contradiction must lack credible explanation, such as new evidence. A party may not create a material issue of fact by simply contradicting prior sworn testimony, thus using the affidavit as a sham. In Hancock, which involved a claim of age-based employment discrimination, the plaintiff had testified in a deposition that he had decided to retire by a certain date and then later submitted an affidavit stating he had not made a final decision to ...