We’re quite familiar with people who say one thing, when they think that’s in their interest, and later when circumstances change, say something quite different.  For example, as the late, great Molly Ivins pointed out in “Molly Ivins Can’t Say That, Can She?”,  back during the energy crisis of the mid-to-late 1970s, folks down in Texas “did put bumper stickers on their pickups . . . that said, ‘Let the Yankee Bastards Freeze in the Dark.’” Id. at 43.  As others have pointed out, Hurricane Sandy brought out similar sentiments.  These days, not so much….

But what about in prescription medical product liability litigation?  Say, for example, one of our defense colleagues absolutely nailed it at a deposition.  The result is rock-solid deposition testimony that the prescribing physician never read that allegedly inadequate warning.  Or else it’s the plaintiff admitting that s/he only took the version of the drug manufactured by a different company.  Summary judgment should be a lock. . . .

The motion is filed. The plaintiff’s response, however, includes an affidavit from the same witness already deposed at length – and the affidavit directly contradicts the witness’ prior testimony on which the motion was based.  Plaintiff claims that, now, at minimum, the contradictory testimony creates a “fact issue” and the “credibility” of the two irreconcilable versions of for the jury to decide.

What now?

First of all, it’s happened before – many times.   Almost 20 years ago, the United States Supreme Court addressed the same situation where a plaintiff, having filed for disability (requiring her to swear she was “totally disabled”), and then later filed an age discrimination suit (the matter before the Court), in which she had to prove she was a “qualified person.”  Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 805-06 (1999).  Plaintiffs, the Court held, “cannot simply ignore the apparent contradiction that arises” from taking apparently irreconcilable positions.  Instead, they “must proffer a sufficient explanation” of such discrepancies.  Id. at 806.  The Court endorsed the analogous doctrine that:

[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.

Id. (string citation omitted).  See generally, e.g., Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (generally viewed as the seminal case on sham affidavits) (applying New York law); Shelcusky v. Garjulio, 797 A.2d 138, 144-45 (N.J. 2002) (excellent general citator for sham affidavit decisions).

Enter the sham affidavit doctrine (sometimes elevated to the status of a “rule”), now with Supreme Court imprimatur, precluding creation of “genuine” factual issues by a plaintiff (or some other essential witness) simply contradicting his or her own previous sworn testimony.  The oldest decision we’ve found applying the sham affidavit doctrine in a prescription medical product liability litigation is Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir. 1985) (applying Indiana law), where the plaintiff, after testifying that several of her treaters told her that her injuries were caused by the product, submitted an affidavit denying everything once hit with a summary judgment motion raising the statute of limitations.  As one of the opinions that created the sham affidavit doctrine, Miller began with the proposition that “[p]arties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions.”  Id. at 1104.  The plaintiff was not “confused” while testifying, and “made no corrections to her statements” when the transcript of her deposition was made available.  Id. at 1105.  “Consequently this affidavit did not create a genuine issue of fact and the district court could grant summary judgment.”  Id.

In another relatively old decision – pre-Cleveland, so the sham affidavit doctrine did not yet have the Supreme Court’s endorsement − a plaintiff-affiliated fact witness (the plaintiff’s mother) had her testimony excluded in Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703 (3d Cir. 1988) (applying Pennsylvania law, we think).  The witness tried to change her testimony about when she ingested a purportedly teratogenic drug.  The sham affidavit doctrine stopped this attempt:

The numerous other courts of appeals that have considered the situation in which a party contradicts, without satisfactory explanation, his or her prior testimony, have reached the same decision.  Each court has concluded that the objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit.

Id. at 706 (citations omitted).  “When, as in the present case, the affiant was carefully questioned on the issue, had access to the relevant information at that time, and provided no satisfactory explanation for the later contradiction, the courts of appeals are in agreement that the subsequent affidavit does not create a genuine issue of material fact.”  Id.

According to Westlaw, 128 cases cite Martin for this proposition, but as far as we can tell, only one of those involved prescription medical product liability litigation.  The exception is Rohrbough. Wyeth Laboratories, Inc., 719 F. Supp. 470 (N.D.W. Va. 1989), aff’d, 916 F.2d 970 (4th Cir. 1990), where the court entered summary judgment after excluding an expert witness’ medical causation affidavit because it contradicted prior sworn deposition testimony.  “[I]f a statement in an affidavit that contradicts earlier deposition testimony constitutes an attempt by the nonmoving party to create a sham issue of fact, it may be disregarded.”  Id. at 474. Miller was cited as Seventh Circuit precedent, along with pre-Cleveland decisions from eight circuits (with only one circuit going the other way).  Id.  In stark contrast to the expert’s deposition testimony, which “reveal[ed] a cautious, circumlocutory doctor,” the contrary affidavit was “concise” and “unhesitant.”   “[T]here is no explanation in the affidavit for why [the expert] is suddenly so willing to offer his unqualified opinion . . . when he had earlier only been willing to defer to experts in the relevant field in his deposition.”  Id. at 475.  On appeal, the Fourth Circuit affirmed, also invoking the sham affidavit doctrine:

Given the conflicts between [the expert’s] affidavit and his deposition testimony, the district court was left not with a genuine issue of material fact, but with trying to determine which of several conflicting versions of [the expert’s] testimony was correct.  We hold that the district court was justified in disregarding the affidavit.  We agree with the district court that it may not represent the considered opinion of the doctor himself, but rather an effort on the part of the plaintiffs to create an issue of fact.

Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970, 976 (4th Cir. 1990) (citation omitted) (applying West Virginia law).

On the blog, we’ve previously discussed several cases that involved the sham affidavit doctrine, but we’ve never reviewed it more comprehensively.  Most recently, in Redd v. DePuy Orthopedics, Inc., ___ F. Appx. ___, 2017 WL 2859536 (8th Cir. June 6, 2017) (applying Missouri law), the plaintiff’s marginally qualified (if that) design expert changed his tune in an affidavit “submitted after [defendant] moved for summary judgment.”  Id. at *2.  Recognizing that “[a] party may not avoid summary judgment by submitting an affidavit that contradicts rather than clarifies previous sworn testimony,” the court of appeals examined several issues on which the expert’s affidavit changed his testimony.  Id.

Given such differences between the testimony [the expert] provided during discovery and his affidavit, we conclude that the district court did not abuse its discretion by excluding the affidavit from consideration at summary judgment.

Id.  The standard of review is important in sham affidavit cases – exclusion of evidence is governed by abuse of discretion.

Another recent appellate decision reaching the same result is In re Avandia Marketing, Sales Practices & Products Liability Litigation, 639 F. Appx. 874 (3d Cir. 2016) (applying Pennsylvania law), only this time the plaintiff had suborned her prescribing physician to recant his prior testimony under oath.  In deposition, the prescriber had “testified that even if [defendant]  had warned of the risks . . . associated with [the drug], he would still have prescribed the drug to [plaintiff].”  Id. at 876.  After the defendant sought summary judgment, plaintiff offered the prescriber’s affidavit stating that with “a different and more thorough warning . . . he never would have prescribed the drug.”  Id. at 876 n.3.  The district court, and then the Third Circuit, were having none of it.  Again, “[i]t was also within the District Court’s discretion to strike . . . the [prescriber’s] Affidavit, which contradicted [his] deposition testimony.”  Id. at 877.  “This Court defines a ‘sham affidavit’ as a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment.  Id. at 877 n.5 (citation and quotation marks omitted).

When a deponent’s post-deposition affidavit conflicts with his prior testimony, a district court may disregard the affidavit to prevent a party from creating a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.  A district court may strike such an affidavit based upon the timing of the affidavit, whether any other record evidence supports the affidavit, and whether there is a plausible explanation for the contradiction.  Each of these considerations supports striking the [prescriber’s] Affidavit.

Id. at 877 (footnote, citations and quotation marks omitted).  Needless to say, exclusion of the sham affidavit and summary judgment on causation grounds was affirmed.  Id. at 879.

Ditto in In re Fosamax Products Liability Litigation, 707 F.3d 189 (2d Cir. 2013) (applying Florida law), where yet again the plaintiff induced her prescribing physician to change his deposition testimony and offer conflicting “expert” testimony on causation-related issues “central to [plaintiff’s] failure-to-warn claim” in a subsequent deposition taken after summary judgment was filed.  Id. at 195.  This stratagem was unsuccessful, as the Second Circuit held that the sham affidavit doctrine was nonetheless applicable to preclude plaintiff from relying on the witnesses second, “diametrically different story” in another deposition:

[W]e hold that the District Court was entitled to disregard [this] new testimony relating to his knowledge based on the “sham issue of fact” doctrine, which prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony.  Although we have 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 an expert witness to defeat summary judgment.  In particular, the doctrine applies to stop [plaintiff] from manufacturing a factual dispute by submitting testimony from an expert whom she tendered, where the relevant contradictions between the first and second depositions are unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and are central to the claim at issue. . . .  We cannot reconcile his new testimony with his prior testimony.

Id. at 194 (citations and footnote omitted).  See Hickman v. Laboratory Corp., 460 F. Supp.2d 693, 699 (W.D. Va. 2006) (sham affidavit doctrine applied to treating physician’s “affidavit, which was filed only three days prior to the Motion for Summary Judgment hearing, was simply an attempt to add information that [he] failed to provide in his sworn deposition”).

In Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001) (applying Kansas law), the plaintiff’s expert changed his testimony in an attempt to support the sole remaining warning-related cause of action, after having given different testimony when the case seemed focused on design-related issues.  The subsequent “declarations” were disregarded as attempts to create “sham facts”:

[C]ourts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue. . . .  [Under] the[] circumstances, it is not an abuse of discretion to conclude − as the district court did − that these subsequent affidavits, which directly contradicted certain positions previously taken by [plaintiff’s expert] and which were detrimental to [plaintiff’s] sole remaining cause of action, constituted those kinds of affidavits which fall within the ambit of creating a “sham fact issue.”   Consequently, the district court was entitled to rely on [his] deposition testimony without regard to his later declarations in rendering its summary judgment ruling.

Id. at 973-74.

Another plaintiff expert bit the dust in Kline v. Zimmer Holdings, 2015 WL 4077495 (W.D. Pa. July 6, 2015), a case we discussed here.  Essentially, the expert bailed in her deposition on design defect opinions, and then later tried to resuscitate design issues in an affidavit filed in response to the defendant’s summary judgment motion.  Id. at *4.  After “consistently, carefully, and clearly set forth her opinion that the product, as designed, was not defective” at the deposition,” her contrary “affidavit cannot be considered” to “proffer expert testimony about the design defect claim.” Id.

It is appropriate to disregard her affidavit pursuant to the sham affidavit doctrine.  “A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment.”  “[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight and that summary judgment is appropriate.”

Id. (quoting and following Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.2007)).  See also Id. at *20 (magistrate’s opinion on same issue).

Still another plaintiff expert, after admitting that there was “no alternative” to the plaintiff undergoing certain medical procedure in his deposition, then tried to deny that same fact after the defendant sought summary judgment.   Zimmerman v. Novartis Pharmaceuticals Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (discussed here).  Following Cleveland, the court invoked the sham affidavit doctrine and held that the “belatedly submitted new affidavit, being flatly contradictory to [the expert’s] deposition testimony, will not be considered.”  Id.

In state court, we encountered the same principle in In re Zoloft Litigation, 2016 WL 5958372 (W. Va. Cir. Oct. 5, 2016), again involving shenanigans by a plaintiff expert.  After being essentially destroyed in deposition, the expert signed an affidavit attempting to repair the damage.  After “not identify[ing] any means by which he was able to exclude other likely causal factors” in his deposition, in his affidavit, the expert professed “that he has excluded all causes other than [the drug].”  Id. at *7-8.  West Virginia’s version of the sham affidavit doctrine asks three questions:

(1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.

Id. at *8 (quoting Kiser v. Caudill, 599 S.E.2d 826, 828 (W. Va. 2004)).  Answering all these questions “yes,” finding that, since the expert “fail[ed] to offer any explanation for the inconsistency between his deposition testimony and his affidavit,” the affidavit therefore “failed to cure the admissions made during his deposition.”  Id. at *9.  As we discussed at greater length in the other post, exclusion required summary judgment.  Id. at at *10. See also Tortorelli v. Mercy Health Center, Inc., 242 P.3d 549, 561 (Okla. App. 2010) (plaintiff’s expert’s affidavit “directly contradicting prior deposition testimony” on standard of care issues disregarded); Dickenson v. EBI, LLC, 2009 WL 10672211, at *3 (W.D. Mo. July 30, 2009) (affidavit by plaintiff’s expert on design defect disregarded as sham).

Plaintiffs do it too – a lot.  They were caught twice in 2015, in Sparks v. Oxy-Health, LLC, 134 F. Supp.3d 961 (E.D.N.C. 2015), and Muzichuck v. Forest Laboratories, Inc., 2015 WL 235226 (N.D.W. Va. Jan. 16, 2015).  In Sparks the plaintiff unsuccessfully attempted to improve upon deposition testimony involving reliance:

Plaintiff[‘s] affidavit will be struck.  The affidavit provides a number of cursory statements that . . . [she] relied on certain misrepresentations at the time she purchased the [product].  However, at her . . . deposition, plaintiff . . . stated that she relied on her conversations with [a third party] . . . and the tangible benefits [of the product]. . . .  Defense counsel pointedly asked plaintiff if she relied on anything else.  She replied “no.”  There is a “bona fide inconsistency” between the two versions of plaintiff’s testimony.  The affidavit is a sham and accordingly is struck from the record.

134 F. Supp.3d at 998-99.

In Muzichuck, the plaintiff in a wrongful death action admitted in her deposition that the decedent had actually read the product’s package insert.  2015 WL 235226, at *12.  When that admission came back to haunt her, she swore out a contrary “declaration” denying that precise fact.  Id.  The court said, “No way, Jose”:

This attempt by [plaintiff] to create a contested issue of fact by disputing her own earlier deposition testimony is unconvincing. . . .  [She] cannot create a dispute about a fact that is contained in deposition testimony by referring to a subsequent affidavit or declaration of the deponent contradicting the deponent’s prior testimony, for it is well established that a genuine issue of fact is not created where the only issue of fact is to determine which of the two conflicting versions of a party’s testimony is correct.  Therefore, the Court concludes that there is no material question of fact in dispute.

Id. (quoting In re Family Dollar FLSA Litigation, 637 F.3d 508, 512 (4th Cir. 2011)).  For other instances of subsequent statements by plaintiffs being excluded under the sham affidavit rule in prescription medical product liability litigation, see Joseph v. Costco Wholesale Corp., 2015 WL 12745803, at *6 (C.D. Cal. Aug. 27, 2015) (“conclusory, self-serving declaration” regarding reading drug label at time of purchase excluded); Finnicum v. Actavis-Elizabeth, L.L.C., 2011 WL 13193350, at *5-6 (E.D. Tex. Jan. 6, 2011) (affidavit concerning causation knowledge disregarded; controlling law “does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony”); Vitolo v. Mentor H/S, Inc., 426 F. Supp.2d 28, 37 (E.D.N.Y. 2006) (contradictory affidavit about importance of certain manufacturer representations about medical device held a sham), aff’d, 213 F. Appx. 16 (2d Cir. 2007); Reetz v. Jackson, 176 F.R.D. 412, 414-15 (D.D.C. 1997) (contradictory affidavit denying knowledge of FDA held a sham in Bone Screw case); In re A.H. Robins Co., 197 B.R. 495, 498 (E.D. Va. 1995) (excluding, for “egregious inconsistency” affidavit regarding product identification in bankruptcy proceeding); Gehring v. Showa Denko, K.K., 1994 WL 597584, at *3 (E.D. Pa. Nov. 2, 1994) (contradictory product identification affidavit held a sham); Baker v. A.H. Robins Co., 613 F. Supp. 994, 996 n.3 (D.D.C. 1985) (contradictory plaintiff knowledge affidavit not considered).

There are literally hundreds of sham affidavit decisions out there, but nowhere else, to our knowledge, have those only involving prescription medical product liability litigation been collected. Until now.