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Roy Cohn would have turned 92 today, had he not died in 1986, a few weeks after being disbarred in New York. Cohn’s legal career was legendary. He was on the team that prosecuted the Rosenberg spy trial. He worked closely with Senator Joseph McCarthy. His clients included mafia figures, the owners of Studio 54, and the owner of the New York Yankees. (It is that last one that makes us most queasy.) Cohn mentored the current POTUS, teaching him always to be nice. Just kidding. Cohn actually told Trump that when someone hits you, hit back even harder. Lesson learned, apparently. Cohn is a character in Angels in America. That is quite a resume. Why are we thinking of Cohn today? Why, indeed.

We personally know two lawyers who managed to get in really hot ethical water. One was disbarred, while the other was fired from his firm. Both ghost-wrote affidavits that were later disavowed by the named affiants. [Practice pointer: do not write false affidavits.] Today’s case, Webb v. Zimmer, Inc., 2019 WL 438361 (EDNY Feb. 4, 2019), involves another sketchy affidavit – a “sham” affidavit in the parlance – and the revelation of the sham led to dismissal of a product liability case. The plaintiff claimed injuries from failure of knee flex-system implant. There were various legal claims, but eventually the only claim left was for failure to warn. Then came the dispositive motions.

First came the Daubert motions. What makes the Webb case so interesting is how the implanting physician (designated as an expert by the plaintiff) signed an affidavit that was fully at odds with what he actually believed. The plaintiff used that affidavit to fend off the defendant’s Daubert motion, but struck out when attempting to use it again, this time to fend off summary judgment. The defendant obtained the right to re-depose the implanter, who promptly contradicted everything in his affidavit. It turns out that the surgeon did not write, or even read, the affidavit, which he admitted contained “inaccuracies, errors, and imprecise language.”

Would you like an example? Of course you would. The implanter offered the following opinion in the affidavit: “I reviewed the Package Inserts and find them to be inadequate because they provide a false sense of security to the treating surgeons.” Well, that’s not good for the defendant, is it? But at his second deposition, the implanter contradicted much of what he stated in this paragraph. He did not review either the package inserts or the surgical technique pamphlet prior to reading or signing the affidavit. He also testified that he was unaware of anything that the defendant “failed to do in terms of researching this product” and was “unaware of the existence of clinical data for any problems related to the Plaintiff.”

Want more contradictions? Here they come. In his affidavit, the implanter proffered the opinions that (1) the failures that occurred with the product were foreseeable; and (2) he should have been warned about it. But the implanter testified in his second deposition that he did not have enough information to testify that the failures that occurred in the plaintiff’s case were foreseeable. Further, the affidavit says that the defendant should have warned or contraindicated the use of the knee system “by advising that it was not tested in patients with hyperextension or high posterior tibial slope.” By contrast (you could see this coming by now, right?), here is what the doctor said at his deposition: “Q. But you don’t know, without evidence or whether there’s a problem with articular surface dissociation, that a warning was appropriate? A. Yeah, that’s true.”

Faced with a collection of contradictions that would have made Emerson or Whitman or Mao blush, the court refused to allow the plaintiff to utilize the implanter’s affidavit “to escape summary judgment only to permit him to modify or contradict himself at trial.” The implanter was also “prohibited from testifying as an expert on these matters.”

The implanter went on to bury the plaintiff on the learned intermediary doctrine. Even aside from the contradictions, the evidence showed that the implanter “chose to use the Product for all his primary implants based on his comfort with the Product rather than any of [the defendant’s] marketing materials or warnings contained in the package inserts.” Moreover, the doctor continued to use the knee implant system long after the plaintiff was forced to undergo multiple revision surgeries and “[t]o this day … remains confident in the product.”
The defendant got out of the case. As far as we can tell, nobody was sanctioned for the sham affidavit, and we find that darned near amazing. Why did the doctor contradict himself so badly? The Drug and Device Law Daughter has shared with us the Reddit theory about people occupying alternate dimensions or timelines. Maybe this doctor traipsed between different timelines. We are just about prepared to believe it.