Motion for Summary JudgmentA court is entitled to disregard “inescapably and unequivocally contradictory” new testimony of an expert witness based on the “sham issue of fact” doctrine.

Recently the Second Circuit Court of Appeals in a per curiam opinion said that district court was entitled to disregard the contradictory new testimony of physician, as expert witness, relating to his knowledge of patient taking drug, as it was undoubtedly manufactured to avoid summary judgment against the plaintiff.

Patient (“Patient”) took a prescription osteoporosis drug and developed osteonecrosis of the jaw (ONJ, or bone death of the jaw), which was an alleged side-effect of the drug.  She filed suit against drug manufacturer (“manufacturer”) claiming strict liability, negligence, fraudulent misrepresentation, and breach of warranty.  The District Court for the Southern District of New York dismissed the plaintiff’s products liability claim.  On appeal the Second Circuit considered whether the district court erred in granting summary judgment after discrediting expert testimony from the Patient’s treating physician.  Because the physician’s expert testimony contained contradictions that were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to plaintiff’s failure-to-warn claim, the Court of Appeals held that the district court did not err in its decision.

The plaintiff claimed that manufacturer should have known of a possible link between Fosamax and ONJ as early as 1995, when it received reports about patients who had developed “dental pain” or “dental infection” during clinical trials of the drug.  In July 2005 manufacturer and the FDA agreed that manufacturer would include a warning on the Fosamax label.  That warning was posted on manufacturer’s website and distributed to physicians in August 2005.

Prior to trial, manufacturer moved for summary judgment on all of the Patient’s claims.  In response, she did not offer any evidence from Dr. H, who had been prescribing her Fosamax when she first developed ONJ.  Rather, the Patient offered the expert testimony of Dr. E. The patient claimed that she continued to consult with him about Fosamax.  Dr. E was deposed twice—in 2008, prior to manufacturer’s summary judgment motion, and in 2011, after manufacturer’s motion was filed. Dr. E was originally deposed as a fact witness. After manufacturer moved for summary judgment, the plaintiff designated him as an expert, and he was accordingly re-deposed.

During his first deposition in 2008, Dr. E said that he was unaware in 2004-05, when the Patient developed ONJ, that she was continuing to use Fosamax or that Dr. H had continued to prescribe her Fosamax for two years more than what he suggested.  He also admitted that he did not know that she was on Fosamax from 2003-05 because he wanted her on a different drug.  In his February 2011 deposition, it was a different story:  Dr. E testified that he knew she was on Fosamax in 2004-05 and that, had manufacturer warned him about the risk of ONJ, he would have recommended that she stop taking Fosamax.  In the same light, he testified that, beginning in 2003, he was “assisted by [Dr. H] who was taking over [his] prescribing habits.”  He explained that he spoke with Dr. H and “advised him to continue [his] treatment before [he] knew any of the ill effects of this drug,” adding that “[a]ll I can tell you is that Dr. H and I talked and that he agreed to assume her care and follow my care plan.”  Dr. E also testified that he “knew [Patient] was on [Fosamax]” based on her “prescription fills.” Only after he was designated as the Patient’s expert did Dr. E remember speaking to Dr. H.

After examining Dr. E’s testimony from both depositions, the district court held that there was no admissible evidence of a causal connection between manufacturer’s failure to warn about ONJ in 2004 and 2005 and the Patient’s ONJ.  Dr. E’s new testimony that he knew that she took Fosamax during that time frame was not based on his own personal knowledge.  The district court rejected Dr. E’s new testimony for two related reasons:  (1) in that Dr. E’s testimony was an “assum[ption]” that the Patient was taking Fosamax at the relevant time, the court rejected as “purely speculative” Dr. E’s assertion that he would have warned the Patient to stop taking the drug if manufacturer had included a different warning; and (2) the testimony pointed to Dr. E’s admission that he “knew” about the Patient’s Fosamax use in 2004-05 after a more recent review of her prescription records, rather than personal knowledge obtained during the relevant period.

To prevail on a failure-to-warn claim under Florida law, a plaintiff must show that a treating physician would have recommended that the patient cease taking the drug if a different, adequate warning had been provided.

The Court of Appeals held that the district court was entitled to disregard Dr. E’s new testimony relating to his knowledge based on the “sham issue of fact” doctrine.  This theory prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.  Although the Court of Appeals said it had typically applied the sham issue of fact doctrine where a party submits an affidavit that contradicts the party’s own prior statements, it may also apply when a party attempts to use evidence from a medical expert witness to defeat summary judgment.  In particular, the doctrine applied to stop the plaintiff from creating a factual dispute by submitting testimony from an expert witness that contradicted his earlier testimony.

Dr. E’s 2011 expert deposition testimony contradicted his 2008 testimony when he admitted he “did not know that [the Patient] was on Fosamax from 2003 to 2005.”  In 2011 Dr. E told “a diametrically different story,” testifying that he “knew she was on [Fosamax]” in 2004-05 and that he had “advised [Dr. H] to continue my [Fosamax] treatment.” [Emphasis added.]  The Court of Appeals found no way to reconcile his new testimony with his prior testimony.  It said that the timing of Dr. E’s testimony recanting his prior sworn testimony clearly increased the likelihood that it was intended solely to defeat the motion for summary judgment.  The appellate court said it was aware of the “greater facility with which a party can craft an affidavit, or shape deposition testimony, when evidentiary gaps have been identified in an adversary’s summary judgment arguments.”  As a result, the timing of the new testimony, in addition to the unequivocal nature of the contradictions and the lack of explanation for the change in testimony, were both relevant in assessing the district court’s decision.

Had there been some readily apparent, plausible explanation for these inconsistencies, or had the plaintiff proffered such an explanation, the Court of Appeals might have concluded that the district court had erred in rejecting Dr. E’s testimony.  It explained that the trial court should not disregard the later testimony because an earlier account was ambiguous, confusing, or simply incomplete.   However, here the relevant contradiction was not only unequivocal but was left unexplained and was inexplicable.

The sham issue of fact doctrine applied here, the Court of Appeals said, only because the relevant contradictions in Dr. E’s testimony were central to the plaintiff’s failure-to-warn claim.  Florida law required the Patient to show that her treating physician would have recommended that she cease taking the drug if a different, adequate warning had been provided.  No reasonable juror could find that Dr. E would have recommended that the Patient cease taking Fosamax if he did not know she was taking it at the relevant time.

In re Fosamax Products Liability Litigation, — F.3d —-, 2013 WL 335967 (C.A.2 (N.Y.) January 30, 2013)

By: Kurt Mattson, J.D., LLM