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Affidavits will not be Struck Unless They are Irreconcilable with Previous Testimony
(June, 2009) By Melissa E. Goldmeier, Summer Associate.
For more information, contact Paul Farquharson.
Medical malpractice, personal injury, and wrongful death
litigation rely heavily on expert testimony to prove causation. In a recent
decision, Marcantonio v. Moen, 406 Md. 395, the Court of Appeals of Maryland
focused on Maryland's evidentiary rules in that context. In that case, the Court
of Appeals held that under Maryland's Contradictory Affidavit or Statement Rule,
MD. RULE 2-501(e), an affidavit that contains a factual assertion that is
"significantly opposite" to, and cannot be reconciled with, the affiant's
previous sworn statement cannot be presented as evidence.
In Marcantonio, Plaintiff filed claims for medical
negligence against her medical providers when one doctor failed to perform and
biopsy on Plaintiff after hearing complaints of abnormal pain and bleeding and
another doctor failed to report a mass she detected on Plaintiff's ovary. During
discovery, one of Plaintiff's expert witnesses testified in deposition that he
would not be offering an opinion as to the cause of Plaintiff's death. In a
subsequent affidavit, the same expert stated that the first doctor's failure to
diagnose Plaintiff and begin treatment upon Plaintiff's complaints were the
proximate causes of Plaintiff's death. Plaintiff's second expert witness also
testified in deposition that he would not answer questions regarding Plaintiff's
staging and prognosis. But, in a subsequent affidavit, he stated that the
failure of Plaintiff's medical providers to properly evaluate her condition was
a significant factor in causing Plaintiff's death.
After discovery, the defense moved to strike the expert
testimony on the grounds that it materially contradicted previous testimony, in
violation of MD. RULE 2-501(e). In addressing this motion, the court sought to
answer whether expert witness affidavits that stated the proximate cause of
death "materially contradicted" one expert's prior testimony that he would not
be offering an opinion as to causation and another expert's prior testimony that
he would not be going into the patient's staging and prognosis. The court
defined "material contradiction" to be a "factual assertion that is
significantly opposite to the affiant's previous sworn statement so that when
examined together the statements are irreconcilable." The court explained that
it would only strike statements under MD. RULE 2-501(e) that created a "clear
and explicit contradiction" between what was said at deposition and what was
said in the affidavit, such that the two cannot possibly exist simultaneously.
In Marcantonio, the court determined that the doctors merely
stated at deposition that they would not be giving an opinion as to the cause of
Plaintiff's death, not that they were unable to proffer one. As such, although
the doctors' affidavit statements may have raised questions about their
credibility, their two statements were not irreconcilable. Therefore, the
doctors' deposition testimonies did not present a material contradiction to the
broader opinions they offered in subsequent affidavits.
By defining the terms "material contradiction" to mean
irreconcilable statements, the court created a high bar under which
contradictory statements may be struck. With this holding, the court granted
expert witnesses the freedom to offer varying opinions at any time. Because
expert opinions are so important in proving causation in personal injury claims,
this holding opens the door to abuse. Now, expert witnesses can prevent summary
judgment by creating issues of fact through contradictory statements. As such,
this holding will undoubtedly contribute to confusion, costly litigation, and
unfair results.
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