The majority opinion in this case found that,
in granting a partial summary judgment in favor of the defendants below, the
circuit court correctly rejected, as a sham affidavit, a supplemental report
submitted by one of the plaintiff's experts in response to the motion for partial
summary judgment. I concur completely in this resolution of the instant action.
I write separately in order to further discuss the sham affidavit rule, and to
clarify its proper use, and to elaborate on its application in this case.
I feel it is important to emphasize that
the sham affidavit rule is not intended, and should not be used, to prevent expert
witnesses from clarifying, or even changing, their opinions. (See
footnote 1) Indeed, Rule 26(e)(1)(B) of the West Virginia Rules of
Civil Procedure
anticipates that the substance of an expert's expected testimony may change
and requires the supplementation of discovery responses in that event:
[a] party is under a duty seasonably to supplement that party's response with respect to any question directly addressed to: (B) The identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert is expected to testify, and the substance of the expert's testimony.
(Emphasis added).
As opposed to precluding an expert from clarifying
or changing his or her
opinion, the true purpose of the sham affidavit rule is to prevent a party
from resisting summary judgment by filing an affidavit that directly contradicts
earlier deposition testimony when there is no satisfactory explanation for
the change of opinion. (See
footnote 2) See Kiser v. Caudill, 215 W. Va.
403, 409, 599 S.E.2d 826, 832 (2004) (“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.”); Williams v. Precision Coil, Inc., 194 W. Va.
52, 60 n.12, 459 S.E.2d 329, 337 n.12 (1995) (“[W]hen 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.”). See also Tolly
v. Carboline Co., 217 W. Va. 158, ___, 617 S.E.2d 508, 515 (2005)
(per curiam) (“[I]f 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 issue of fact.” (quoting Kiser,
215 W. Va. 403, 409, 599 S.E. 2d 826, 831 (additional quotations and citations
omitted)).
In order to demonstrate that the instant
case falls squarely within this rule, I will provide additional factual details,
that were omitted from the majority opinion, regarding the opinion of Dr. Paul
vonRyll Gryska, the plaintiff's expert witness.
Dr. Gryska prepared an expert disclosure
dated November 23, 2003. In the disclosure, Dr. Gryska expressly states:
At your request, I have studied
the extensive records for Mr. Robert Calhoun beginning in May 1997. These records
include the St. Mary's Hospital admissions on May 27 and again two days later
on May 29 as well as office records of Dr. Jack Traylor, Jr. and Dr. Robert Turner.
With respect to Mr. Calhoun's post-operative care, the disclosure states, in pertinent part,
Most of the events that followed
hospitalization on May 29, 1997 were related to his stroke either directly or
indirectly. During the several days after hospitalization, he developed a fever
and evaluation of the abdomen found free air in the abdomen. Repeat x-ray four
days later again found free air. This was a change from admission where a
chest xray was
normal (abdominal air is assessed on chest x-ray; often called free air
under the diaphragm) and his white blood cell count was normal. Dr. Traylor
was consulted to assess the Patient's abdomen in the face of worsening sepsis.
He concluded that the abdominal air was a residual finding from surgery now
nine days previously. This was an incorrect assessment and not compatible with
the physiology of laparoscopic insufflation
The process of inflating the
abdominal cavity or preperitoneal space as was the case with Mr. Calhoun (the
abdomen was never actually entered) uses carbon dioxide or CO2. This is removed
from the body in a matter or hours after surgery not days and certainly not nine
days. It is my understanding from reading the records that Dr. Traylor failed
to recognize the abdominal catastrophe developing in Mr. Calhoun's abdomen.
In the face of recent stroke
there are many sources for infection and many physiologic changes that are directly
related to the stroke and many are a consequence of the immobilization and catheterization
and altered physiology indirectly related to the stroke. . . .
(Emphasis added). As the foregoing disclosure demonstrates, Dr. Gryska was
aware of the normal x-ray that was taken at the time of Mr. Calhoun's admission,
and of the fact that free air was subsequently discovered in Mr. Calhoun's
abdomen. He further opined that Dr. Traylor “failed to recognize the abdominal
catastrophe developing in Mr. Calhoun's abdomen.” However, Dr. Gryska
did not conclude that this particular failure on the part of Dr. Traylor was
below the proper standard of care. Instead, Dr. Gryska indicates that, due
to Mr. Calhoun's stroke, there were many potential sources for the complications
Mr. Calhoun was experiencing and it was not below the standard of care for
Dr. Traylor to specifically identify their exact cause.
Dr. Gryska's opinion that Dr. Traylor did not fall below the appropriate standard of care by failing to recognize the true nature of Mr. Calhoun's post-operative complications was expressed more clearly when he was deposed by the defense on December 16, 2003. During that deposition, Dr. Gryska testified that he could not state that Dr. Traylor had deviated from the standard of care in his post-operative treatment of Mr. Calhoun, and even went so far as to say that Dr. Traylor had not been negligent. Again, Dr. Gryska relied on the fact that, due to Mr. Calhoun's stroke, there were many potential causes for the adverse symptoms Mr. Calhoun was experiencing:
Q Okay.
For instance, let's talk about the postoperative care that you reference in your
report. Tell me, do you have any opinions that the postoperative care that was
rendered by Dr. Traylor somehow deviated from the standard of care?
A. No.
Q. Just
so I'm clear then, it is not your intent to come to trial and testify that Dr.
Traylor deviated from the standard of care in the manner in which he treated
this Patient from a postoperative perspective?
A. Well,
this was an unusual postoperative perspective and unusual postoperative course. I
believe Dr. Traylor was wrong in his review of the x-rays and assessment of the
Patient. The problem comes in that there's a lot of explanations sometimes after
a patient has had a stroke. There's so many physiologic changes that occur, there
are too many explanations and too many variables to describe, to ascribe, to
state with certainty, that there is a standard of care. I believe Dr. Traylor
made an error when assessing the Patient. It is a lot harder to call that a violation
of the standard of care.
Q. So
we are clear, you do not intend to render any opinions at trial that Dr. Traylor
was negligent or breaching the standard of care in his management of the Patient
during the postoperative period, is that correct?
A. Correct.
Q. Do
you have any other opinions with respect to Doctor Traylor's treatment in this
matter?
A. Yes.
I think he failed to recognize the severity of a new problem inside Mr. Calhoun's
tummy, but again I told you that was _ there were so many other explanations
that I do not believe it was a violation of the standard of care. It was not
negligence.
Deposition of Dr. Paul vonRyll Gryska, December 16, 2003, at 80-82.
At the outset of his deposition, Dr. Gryska
described the extensive records he was given to review in connection with this
case:
I
was provided with all of the records at one time which includes many of the rehab
records and the chronic facility records that Mr. Calhoun evolved while he was
going through the next year or so. I don't think I have every single thing from
the time of his surgery through his death, but I have many of the post hospital
records.
The
ones I have here today include the original medical records from his operation,
his day surgical procedure in May of 1997, his readmission to the hospital on
May 29th, 1997, and his hospitalization for the next month. I also
have deposition s here for Mrs. Calhoun, Doctor Traylor, Doctor Stone, and Doctor
Turner.
Deposition of Dr. Paul vonRyll Gryska, December 16, 2003, at 5-6.
Based upon the foregoing details of Dr. Gryska's
expert disclosure and deposition testimony, it is clear that in reaching his
ultimate conclusion that he was unable to state that Dr. Traylor had fallen below
the standard of care with respect to Mr. Calhoun's post-operative treatment,
Dr. Gryska had reviewed Mr. Calhoun's extensive medical records, had known of
the absence of free air in Mr. Calhoun's abdomen upon his post-stroke admission
to the hospital on May 29, 1997, and had also known of the presence of free air
a few days later.
Nevertheless, after the defendants filed
a motion for partial summary judgment on the issue of Mr. Calhoun's post operative
medical treatment, which cited the absence of expert testimony stating that Dr.
Traylor had breached the standard of care as grounds for summary judgment on
this issue, Dr. Gryska filed a supplemental report reversing his opinion on this
issue. Contrary to his earlier statements, in his supplemental report Dr. Gryska
opined that Dr. Traylor's failure to recognize that Mr. Calhoun had developed
a new problem and his failure to properly advise the medical team and conduct
further investigation of the problem “was indeed beneath [the] standard
of care.” Dr. Gryska pointed to the newly obtained deposition testimony
of Dr. David Denning, the physician who diagnosed and performed surgery on Mr.
Calhoun's bowel perforation, as the foundation of his changed opinion. However,
a careful reading of Dr. Gryska's supplemental report reveals that the medical
data relied upon therein was the same data he had discussed in his expert disclosure
and deposition testimony:
Dr. Denning reiterates the findings
on the chart, both radiologic and clinical and points out clearly that admission
chest x-ray found no free air and that a change in clinical status prompted further
x-rays which found free air on June 4, 1997. Dr. Traylor was consulted to assess
the patient's abdomen in the face of worsening sepsis. His note, dated June 5,
indicates that there was free air present on admission yet this was not the case.
The x-ray report suggests that this new free air was from a perforated viscus.
Given new symptoms, fever, somnolence,
and worsening sepsis, the finding of free air on chest x-ray when it was not
there before mandates further evaluation. At the very minimum more radiologic
evaluation should have been recommended and ordered. This would have answered
the question of a perforated viscus and/or free air. Surgical intervention at
this time would have dramatically shortened this hospital admission and possibly
avoided much of his physiologic injury and prolonged convalescence.
Plainly, Dr. Gryska's revised opinion was based upon the initial absence and
subsequent presence of free-air in Mr. Calhoun's abdomen, in combination with
other symptoms from which Mr. Calhoun was suffering. As I demonstrate above,
Dr. Gryska had all of this information at the time he rendered his initial
report and gave his deposition testimony. Both in his expert disclosure and
in his deposition testimony, Dr. Gryska stated that he had reviewed all of
Mr. Calhoun's hospital records. In addition, the expert disclosure made specific
references to the absence and subsequent presence of free air in Mr. Calhoun's
abdomen. Accordingly, it is without question that Dr. Gryska's supplemental
report was properly rejected as a sham affidavit in that it (1) directly contradicted
his earlier statements;
(2) was filed in response to a motion for summary judgment, and (3) was based
upon medical data that had been reviewed by Dr. Gryska prior to his earlier
statements. Moreover, Dr. Gryska testified thoroughly during his deposition
and he did not experience any confusion, lack of recollection or other legitimate
lack of clarity at that time that would justify the supplemental report. See Syl.
pt. 4, Kiser, 215 W. Va. 403, 599 S.E.2d 826. (See
footnote 3)
In conclusion, I reflect on the comments
of Justice Starcher in his concurring opinion in Kiser,
An expert witness's understanding of a case, and testimony on a legal opinion, can change with time. An expert witness, who is unfamiliar with a particular issue in a deposition, can become familiar with the issue after a deposition by doing additional research or testing. An expert brings experience to the courtroom, and uses that experience to assist the jury in understanding the facts. If the expert's experience changes, resulting in a change in the expert's opinion or other deposition testimony, then the party offering the expert is entitled to amend the expert's testimony through use of an affidavit. But that affidavit had also better list some pretty good reasons for the change in the expert's testimony.Kiser, 215 W. Va. at 411-12, 599 S.E.2d at 834-35. In this case, there simply was no good reason for Dr. Gryska's change in opinion, and the rejection of his supplemental report as a sham affidavit was proper.