Sharon K. Susie, an individual and Larry D. Susie v. Family Health Care of Siouxland, P.L.C. d/b/a Family Health Care of Siouxland Urgent Care and Sarah Harty

IN THE SUPREME COURT OF IOWA
No. 17–0908
Filed March 12, 2020
SHARON K. SUSIE and LARRY D. SUSIE,
Appellants,
vs.
FAMILY HEALTH CARE OF SIOUXLAND, P.L.C. d/b/a FAMILY
HEALTH CARE OF SIOUXLAND URGENT CARE and SARA HARTY,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
Defendants seek further review of a court of appeals decision
reversing the district court’s grant of summary judgment. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
AFFIRMED.
Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for
appellants.
Kellen B. Bubach, Jack D. Hilmes, and Erik P. Bergeland, of Finley
Law Firm, P.C., Des Moines, for appellees.
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CHRISTENSEN, Chief Justice.
The lead plaintiff in this case tragically lost an arm and toes due to
a rare, but extremely serious, disorder known as necrotizing fasciitis. We
must decide whether the district court was correct in granting defendants’
motion for summary judgment on plaintiffs’ medical malpractice claims.
On direct appeal, the court of appeals reversed the district court’s
judgment. Upon further review, we vacate the decision of the court of
appeals and affirm the district court’s judgment. Because the plaintiffs
failed to set forth specific facts showing a prima facie case of causation
and lost chance of survival, we affirm the judgment of the district court.
I. Background Facts and Proceedings.
Sharon Susie fell in her living room, injuring her right arm. Her arm
was bruised and painful. The condition of her arm did not improve.
Approximately one week later, on September 29, 2012, she went to the
urgent care clinic of Family Health Care of Siouxland and was treated by
Sara Harty, a physician’s assistant. Harty ordered an x-ray of Sharon’s
arm, which revealed “no fractures or dislocations” but there was “moderate
soft tissue swelling about the elbow joint dorsally.” Harty diagnosed
Sharon with right proximal forearm pain, elbow pain, and a right elbow
contusion. A shot for pain and prescription pain killers were provided to
Sharon. Harty instructed Sharon to ice her arm and told her to follow up
with her doctor if she was not better in two days.
The next day, Sharon’s adult son found her extremely ill. Sharon
was taken to Mercy Medical Center in Sioux City where she was diagnosed
with septic shock and kidney failure. She was immediately placed on
antibiotics, but her condition continued to deteriorate. The biopsy of
Sharon’s right arm showed she had necrotizing fasciitis, also known as a
flesh-eating disease. To stop the progression of the life-threatening
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disease, doctors amputated Sharon’s right arm. As a result of medication
that directed blood flow to her vital organs, eight of Sharon’s toes were
amputated as well.
Two years later, Sharon and her husband (Susies) filed a negligence
action against Family Health Care of Siouxland and Harty (defendants),
seeking damages for the amputation of her right arm and other related
injuries. The Susies alleged defendants were negligent because Sharon’s
condition was not properly diagnosed and treatment was not timely
commenced, requiring amputation of her right arm. Later, the Susies also
alleged defendants’ actions resulted in the lost chance to save Sharon’s
arm and toes from amputation. The Susies originally designated Dr. John
Crew as their expert witness, and he was deposed. However, Dr. Crew
died prior to trial. On April 11, 2017, the Susies designated Dr. Roger
Schechter to substitute for Dr. Crew and submitted a signed report
summarizing Dr. Schechter’s opinions pursuant to Iowa Rule of Civil
Procedure 1.508. The report stated, in part,
Dr. Schechter will also opine to a reasonable degree of medical
probability regarding the treatability of Sharon Susie’s
infection at the point of time she presented to the urgent care
clinic on September 29, 2012. He is also expected to testify
that had the infection been diagnosed on the day of her visit
to the clinic, and treatment initiated immediately, the spread
of the infection, more likely than not, could have been avoided,
the infection would not have become systemic; and the
amputation of Sharon’s arm and toes would more likely than
not have been avoided.
Two weeks later, on April 25, 2017, Dr. Schechter was deposed.
Following Dr. Schechter’s deposition, defendants filed a motion for
summary judgment, arguing the Susies lacked any evidence on causation
and that Dr. Schechter could only provide speculation as to the effect of
antibiotic administration. The Susies resisted the motion, stating a prima
facie case on causation was made by considering all of the evidence,
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including Dr. Schechter’s 1.508 report, his deposition testimony, and the
supporting evidence from multiple medical providers. On May 8, a hearing
was held on the motion for summary judgment. The district court stated
on the record as follows:
Okay. It’s clear to me even -- and I know,
Mr. Humphrey, you wanted to make sure I read all of your
other physician stuff. I did that. I still believe and I find that
there is no -- that you don’t have the necessary expert more
likely than not causation evidence to get the claim to a jury.
Now, Schechter, every time he was really forced or
asked the major question, he said speculation, I don’t know
what the outcome would have been, may have made a
difference. I don’t care what’s in his 1.508 because when
you’re asked under oath in a deposition, are these your final
opinions, he’s stuck with those. And he didn’t give more likely
than not in his deposition.
Your plaintiff’s treating physicians basically said, listen,
the earlier you get antibiotics, the better chance you have.
What’s the other phrase? Time is tissue. Lamptey said it may
well stop it from progressing. Rizk says, well, if you get
antibiotics early, they usually work. Let’s see. Where’s the
other one? Earlier the antibiotics, better likely the outcome
for the patient. I think all your treaters said that.
The problem is -- with that is they did not give an
opinion in this case with these facts whether or not it would
have made a difference. What it does normally doesn’t push
you over the line.
The district court granted defendants’ motion for summary
judgment. The Susies appealed. We transferred the case to the court of
appeals. The court of appeals reversed the judgment of the district court,
concluding the grant of summary judgment was improper. The court of
appeals looked “at all of the evidence presented,” and when “taken
together, indicate the probability or likelihood of a causal connection
between defendants’ failure to administer antibiotics on September 29,
2012, and the injury to Sharon.” The defendants applied for further
5
review, and we granted their application. We will discuss additional facts
as necessary.
II. Standard of Review.
We review the grant of summary judgment for correction of errors at
law. Konrardy v. Vincent Angerer Tr., Dated Mar. 27, 1998, 925 N.W.2d
620, 623 (Iowa 2019). Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Iowa R. Civ. P. 1.981(3). The burden is on the moving party to demonstrate
the nonexistence of a material fact question. Banwart v. 50th St. Sports,
L.L.C., 910 N.W.2d 540, 545 (Iowa 2018). However, the nonmoving party
may not rely on mere allegations in the pleadings but must set forth
specific facts showing a genuine issue for trial. Id.; accord Iowa R. Civ.
P. 1.981(5). If the nonmoving party cannot generate a prima facie case in
the summary judgment record, the moving party is entitled to judgment
as a matter of law. See Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d
873, 875, 878 (Iowa 1996).
We view the facts in the light most favorable to the nonmoving party.
Konrardy, 925 N.W.2d at 623. “But the proof in any case must be such
that the fact finder is not left to speculate about who the negligent culprit
is.” Walls v. Jacob N. Printing Co., 618 N.W.2d 282, 284 (Iowa 2000) (en
banc). Thus, “[s]peculation is not sufficient to generate a genuine issue of
fact.” Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005).
III. Analysis.
On further review, the defendants present two claims. First, they
argue the district court correctly held there was insufficient evidence of
6
but-for causation. Second, the defendants maintain there was insufficient
evidence to support a claim of lost chance of survival.
A. But-For Causation. Defendants contend there was insufficient
evidence of but-for causation. A prima facie case of medical negligence
requires plaintiff to establish the applicable standard of care, a violation
of that standard, and a causal relationship between the violation and the
injury. Eisenhauer ex rel. Conservatorship of T.D. v. Henry Cty. Health Ctr.,
935 N.W.2d 1, 9 (Iowa 2019). The central causation question for Susies’
claims is whether it was more likely than not that Sharon’s arm would
have been saved by administration of antibiotics on September 29, 2012.
Expert testimony is required to create a jury question on causation when
the causal connection “is not within the knowledge and experience of an
ordinary layperson.” Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 793
(Iowa 2009). The parties agreed expert testimony was necessary to
establish causation in this case.
Defendants point out Dr. Schechter’s testimony failed to establish
the causation element of Susies’ prima facie case. We agree with this
assertion. Dr. Schechter’s testimony does not rise above the level of
speculation. To begin, it is unclear whether Dr. Schechter is qualified to
render a causation opinion. He testified he is not an expert in the
treatment of necrotizing fasciitis and he is not a surgeon nor an infectious
disease specialist. Regardless, Dr. Schechter was unable to provide the
causal link between defendants’ alleged violation of the standard of care
and Sharon’s injuries:
Q. Or are you here to say that Sharon Susie’s arm was
cut off because of Sara Harty? A. I’m not here to say her arm
was cut off because of Sara Harty. I’m here to say that she
became ill and septic because she wasn’t given a thorough
enough evaluation and followup.
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Q. Isn’t the bottom line, you don’t know what would
have happened to Sharon Susie had she had CBC testing, had
she returned to the clinic in 20 hours or less than 24 hours,
had a comprehensive physical exam been documented? You
don’t know that the outcome would not have been exactly the
same. True? A. I don’t know, but the faster you get to care
when you’re sick, the better off you are.
....
Q. Well, if she had a firestorm brewing when she
walked into the urgent care clinic, as Dr. Crew said, Dr. Crew
telling us that she has the beginnings of necrotizing soft tissue
disease then and there, do you think -- do you really think
Sara Harty can stop that? A. I think Sara Harty could have
gotten through instructing this patient who was clearly ill
throughout the night -- if she had been instructed that should
she have all these untoward symptoms of any kind -- and it’s
-- it’s generic. It’s not specific necrotizing fasciitis. It’s generic
to physical deterioration and infection regardless.
If she were given the appropriate instructions and her
husband had the instruction, she -- which would state in this
situation “Go to the ER,” she would have gotten to the ER
sooner. And it’s speculative, but clearly time is of the essence
when you’re getting progressively more ill.
Dr. Schechter was noncommittal about whether antibiotics would
have been effective if administered when Harty first saw Sharon:
Q. At the same page, our discussion continues where
[Dr. Crew] agreed to the possibility that because it would take
36 hours for the antibiotics to be effective, Sharon Susie would
still go to Mercy in the condition that she was because the
antibiotics had not had time to work. That’s Page 48 of his
deposition.
Do you remember that discussion? A. Yes.
Q. You agree with that possibility; correct?
A. Possibility.
Q. He said in that same page range: “It is speculation
on whether the antibiotics would,” quote, “ ‘turndown,’ ” close
quote, “the infection had they been given by Sara Harty.” Do
you agree? A. Speculation, yes.
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Dr. Schechter admitted, given the sparseness of the documentation,
it was unclear whether Sharon should have been given antibiotics
immediately:
Q. So what you’re saying from the record and the lack
of the CBC, you don’t think she necessarily had enough
information to make that next step in prescribing antibiotics?
A. Well, from the record and the sparseness of the
documentation, I don’t have enough information either.
Q. Okay. So that’s -- we’re saying the same thing.
A. Right.
Q. Stated another way, you don’t have enough
information to say whether she should have given antibiotics
or not in the circumstances; is that right? A. Correct.
He even conceded the effect of antibiotics on Sharon’s outcome was
“speculative”:
Q. What I’m getting to, we are speculating on the effect
of antibiotics had they been given to Sharon Susie on the
afternoon of the 29th of September 2012; correct? A. Yes.
When asked the ultimate but-for causation question by Susie’s own
counsel, Dr. Schechter provided this cryptic response:
Q. Do you agree with that -- that the earlier you get the
antibiotics on board and the more you allow the body to
mobilize in someone’s immune system in response to this
developing infection that you may well more likely than not
have saved her arm?
....
A. To -- I would say it’s a significant possibility ranging
as high as probability that early intervention with antibiotics
could have either at least reduced the progression of the
infection or slowed its progression and potentially have
averted as much tissue loss as she experienced.
The opinions by Dr. Schechter provide no guidance for the jury on
how or if Sharon’s outcome would have been different if antibiotics were
administered one day earlier. While an expert is not required to express
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an opinion with absolute certainty, Ranes v. Adams Labs., Inc., 778
N.W.2d 677, 688 (Iowa 2010), Dr. Schechter provides only speculative and
confusing testimony on causation. The jury cannot be left to speculate
about the but-for causal link. See Hlubek, 701 N.W.2d at 96.
The Susies rely on Dr. Schechter’s 1.508 report for the contention
that a causal link exists between defendants’ failure to administer
antibiotics on September 29, 2012, and Sharon’s injury. The report
indicated Dr. Schechter would testify that had Sharon’s infection been
treated immediately on the day of her visit to the clinic, “the amputation
of Sharon’s arm and toes would more likely than not been avoided.”
However, in his deposition, Dr. Schechter contradicted his 1.508 report by
testifying that the causal connection was speculative. In Estate of Gray ex
rel. Gray v. Baldi, we adopted the “contradictory affidavit rule.” 880
N.W.2d 451, 463 (Iowa 2016). Under this rule, we will reject an affidavit
that directly contradicts prior testimony unless the affiant provides a
reasonable explanation for the apparent contradiction. Id. at 462–63. To
invoke the contradictory affidavit rule, “the inconsistency between a
party’s deposition testimony and subsequent affidavit must be clear and
unambiguous.” Id. at 464 (quoting Van Asdale v. Int’l Game Tech., 577
F.3d 989, 998 (9th Cir. 2009)).
The circumstances presented here are somewhat different from
Baldi. Assuming Dr. Schechter’s signed 1.508 report is part of the
summary judgment record, the sequence is reversed—the deposition
testimony came after the 1.508 report. But the timing of the report is
inconsequential. See Glass v. Lahood, 786 F. Supp. 2d 189, 216 (D.D.C.),
aff’d, No. 11–5144, 2011 WL 6759550, at *1 (D.C. Cir. Dec. 8, 2011) (per
curiam). There is “no principle that cabins sham affidavits to a particular
sequence.” In re CitX Corp., 448 F.3d 672, 679 (3d Cir. 2006). The essence
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of this rule is that there is no genuine issue of fact because the deposition
testimony precludes consideration of contradictory affidavits. See Baldi,
880 N.W.2d at 463–64. Accordingly, Dr. Schechter’s expert report, which
he contradicted at his deposition, is insufficient to generate a genuine
issue of fact.
The defendants also claim the testimony of Susies’ medical providers
is insufficient to generate a causal fact issue. “[T]he ‘probability’ of causal
connection necessary to generate a jury question need not come solely
from one witness.” Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739,
747 (Iowa 1977). Susies presented supporting testimony from Dr. Daniel
Lamptey, an infectious disease specialist; Dr. William Rizk, a general
surgeon; and Dr. Ravi Vemuri, an infectious disease specialist. Yet, the
record testimony of the medical providers is not relevant to the causal link.
The earlier-is-better testimony is insufficient to create a genuine
issue of material fact. According to Dr. Lamptey, “the sooner you can see
a patient with an infectious condition and start the antibiotics, the better
the likelihood you can have some impact on the progression of this disease
into something more serious.” Dr. Rizk made a similar point, agreeing that
“time equals tissue; meaning the longer it’s allowed to progress, the more
tissue you’re going to have to remove to save the patient’s life” when
dealing with necrotizing fasciitis. Dr. Vemuri also agreed that “generally
speaking the earlier an infection is diagnosed and the earlier an
appropriate antibiotic is prescribed, the better the likely outcome for the
patient.” Not one witness opined that the immediate administration of
antibiotics on September 29, 2012, would have more likely than not
avoided the injury to Sharon.
Susies failed to establish a prima facie case of causation. There is
only speculative testimony in the record from which a jury could infer it
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was more likely than not that Sharon’s arm would have been saved by
administration of antibiotics on September 29, 2012.
B. Lost Chance of Survival. The lost-chance-of-survival doctrine
is a compensable event where “a personal representative may recover
damages for a lost chance of survival as an alternative to a traditional
wrongful-death recovery.” Mead v. Adrian, 670 N.W.2d 174, 178 (Iowa
2003). Expert testimony is required to show the “defendant probably
caused a reduction in [the plaintiff’s] chance of survival.” DeBurkarte v.
Louvar, 393 N.W.2d 131, 137–38 (Iowa 1986) (en banc). We have
recognized in medical malpractice cases that the amount of damages for a
lost chance of survival is “the percent of lost chance attributed to the
intervening act of negligence.” Mead, 670 N.W.2d at 178–79 (quoting
Wendland v. Sparks, 574 N.W.2d 327, 331 (Iowa 1998)).
Susies’ resistance to defendants’ motion for summary judgment
asserts Sharon lost her best chance to save her arm and toes due to
Harty’s failure to administer antibiotics. Defendants argue Susies cannot
generate a prima facie case of lost chance of survival. We agree with
defendants’ position. No expert witness has provided testimony that
Sharon lost any chance to save her arm or toes.
Further, no witness has testified that it was even possible for
Sharon’s arm to be saved by the administration of antibiotics on
September 29, 2012. Susies’ brief points to the testimony of Dr. Schechter
and Jeffrey Nicholson for the position that failure to administer antibiotics
resulted in tissue damage to Sharon. However, the “time is tissue” and
“sooner is better” expressions are not lost-chance theories.
The question central to Susies’ lost-chance claim is what chance of
keeping her arm and toes did Sharon lose as a result of a one-day delay in
the administration of antibiotics. No witness opined what the chance of
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Sharon keeping her arm and toes was, if any, had antibiotics been
administered when she visited Harty.
Therefore, Susies failed to establish a prima facie case of lost chance
on the summary judgment record. There is no expert testimony from
which a jury could decide what the reduction in Susies’ chance of survival
was. The jury cannot be left to speculate about the lost chance of survival.
See Walls, 618 N.W.2d at 284.
IV. Conclusion.
Because Susies failed to set forth specific facts showing a prima facie
case of causation and lost chance of survival, we affirm the district court’s
grant of summary judgment.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Appel, J., who dissents, and McDonald
and Oxley, JJ., who take no part.
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#17–0908, Susie v. Family Health Care of Siouxland, P.L.C.
APPEL, Justice (dissenting).
The majority decides this case on the basis of the contradictory
affidavit rule. The rule generally stands for the proposition that an
affidavit submitted by an interested party in opposition to a motion for
summary judgment may be disregarded if it materially contradicts the
affiant’s prior deposition testimony. Before cutting and pasting the
contradictory affidavit rule into this case, however, exploration of the
development of the rule, the nuances in the rule, and the nature of its
application in caselaw will illuminate the choices we face in deciding the
issue presented in this case. A larger review of the substance of the rule
compels me to respectfully dissent.
I. Overview of Contradictory Affidavit Rule.
A. Introduction: Chainsaw or Scalpel. The contradictory affidavit
rule has been controversial. It is not based upon any rule of civil procedure
and is contrary to the traditional approach in the courts to summary
judgment applied over decades of jurisprudence. It has not been explicitly
embraced by the United States Supreme Court. It has, however, gained a
foothold in the lower federal courts and, to a somewhat lesser extent, in
state courts.
In determining its scope and in considering whether to adopt the
rule, there are competing considerations. On the one hand, a self-serving
affidavit manufactured by an interested party to defeat summary judgment
after potential flaws in the case have been exposed may be so egregious
that the magic affidavit should not be allowed to generate a genuine issue
of material fact. Yet on the other hand, determinations of credibility of
witnesses is a core jury function at the very heart of the constitutional
right to a jury trial. Because of the very important jury trial implications,
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the contradictory affidavit rule is generally sparingly and narrowly applied.
For the most part, the rule is highly qualified, subject to a series of
limitations, and used as a scalpel, not a chainsaw.
B. Developments in Federal Courts. The Seventh Amendment to
the United States Constitution guarantees the right to a jury trial. The
traditional approach has been that when a party contradicts prior
testimony that gives rise to a matter of credibility, it is for the jury to
evaluate and determine. Such an approach gave breathing room to the
fundamental right to a jury trial.
In the minds of some, however, pragmatic considerations toward the
end of the twentieth century arose that tended to press the constitutional
barriers. Judicial innovators feared that if last-minute, sham affidavits
raised jury questions, the utility of the rules providing for summary
judgment would be undermined.
The contradictory affidavit rule was discovered relatively recently in
Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.
1969). In this case, the president of the corporate plaintiff stated in his
deposition that he could provide no particularized evidence of the
defendant’s fraudulent intent. Id. at 576–77. The president then filed an
affidavit when the defendant moved for summary judgment, claiming that
the defendant’s president told him that the defendant corporation never
had any intention of performing on the contract. Id. at 577.
The Perma Research court found that
[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 issues of fact.
Id. at 578.
15
Similarly, in Radobenko v. Automated Equipment Corp., 520 F.2d
540 (9th Cir. 1975), the United States Court of Appeals for the Ninth
Circuit considered
the question of whether contradictory testimony of a plaintiff
alone can be used by him to defeat a defendant’s summary
judgment motion where the only issue of fact results from the
necessity of choosing between the plaintiff’s two conflicting
versions.
Id. at 543–44. Citing Perma Research, the Radobenko court in a few lines
determined that the issues of fact were created by Radobenko and were
not genuine. Id. at 544. In order to exclude the testimony, however, the
court embarked on a two-part test: first, does a contradiction exist, and if
so, second, whether the contradiction is justified. Id.; see also Estate of
Gray ex rel. Gray v. Baldi, 880 N.W.2d 451, 462–64 (Iowa 2016). As a
result, the Radobenko court determined that the district court properly
granted summary judgment in favor of the defendant. Radobenko, 520
N.W.2d at 544.
After Perma Research and Radobenko, many federal courts adopted
some version of the contradictory affidavit rule. See, e.g., Darnell v. Target
Stores, 16 F.3d 174, 176–77 (7th Cir. 1994), overruled on other grounds by
Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013); Martin v.
Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988); Van T. Junkins
& Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657–59 (11th Cir. 1984).
The spread of the rule did not happen without a good fight. See Van T.
Junkins & Assocs., Inc., 736 F.2d at 660 (Johnson, J., dissenting)
(criticizing the doctrine as unduly invading the role of the jury); Gross v.
S. Ry., 414 F.2d 292, 297 (5th Cir. 1969) (noting it is “well settled that in
considering a motion for summary judgment, the court has no duty or
function to try or decide factual issues”); Olin v. Disneyland Int’l, 832 F.
16Supp. 1342, 1344 (D. Ariz. 1993) (observing that trial judges should not
be required “to choose among competing or conflicting inferences or to
pass on the credibility of witnesses with differing versions of material
facts”). As the contradictory affidavit rule began to take hold, however,
some cases seemed to imply that offsetting affidavits could never be
considered in summary judgment motions. See, e.g., Jones v. Gen. Motors
Corp., 939 F.2d 380, 385 (6th Cir. 1991) (“[I]t is well settled that a plaintiff
may not create a factual issue for the purpose of defeating a motion for
summary judgment by filing an affidavit contradicting a statement the
plaintiff made in a prior deposition.”); see also Collin J. Cox, Note,
Reconsidering the Sham Affidavit Doctrine, 50 Duke L.J. 261, 269–70
(2000) [hereinafter Cox, Sham Affidavit] (exploring the tension between the
Perma Research approach and caselaw barring offsetting affidavits in
summary judgment motions). Most of the evolving caselaw, however,
mindful of the powerful traditional notion that credibility issues are
ordinarily for the jury, tended to emphasize its limited and narrow
character to dampen the bite of the contradictory affidavit rule.
A significant number of cases offer generalized admonitions about
the use of the contradictory affidavit rule. For instance, many cases
emphasize that the rule should be applied “with great caution.” Bank of
Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir.
1996); see also Taylor v. ScottPolar Corp., 995 F. Supp. 1072, 1075 n.2 (D.
Ariz. 1998). This general directive that the contradictory affidavit rule
should be cautiously applied has been translated into discrete limitations.
For example, it is often stated in stark terms that in order to invoke
the contradictory affidavit rule, the affidavit offered must “directly” or
“flatly” conflict with the prior deposition testimony. Two influential federal
cases embracing this limitation are Kennett-Murray Corp. v. Bone, 622 F.2d
17887 (5th Cir. 1980), and Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.
1986).
In Kennett-Murray, a plaintiff employer brought a claim against a
former employee seeking recovery on a promissory note and an
employment contract. 622 F.2d at 889. The Fifth Circuit held that a
party’s affidavit cannot be disregarded “merely because it conflicts to some
degree with an earlier deposition.” Id. at 893. The Fifth Circuit observed
that “a genuine issue can exist by virtue of a party’s affidavit even if it
conflicts with earlier testimony in the party’s deposition.” Id. The Fifth
Circuit declared that the contradictory affidavit rule should be applied only
where the affidavit is “clearly” or “blatantly” inconsistent. Id.
The Eleventh Circuit took a similar approach to the contradictory
affidavit rule in Tippens. In Tippens, the court noted that “[a] definite
distinction must be made between discrepancies which create transparent
shams and discrepancies which create an issue of credibility or go to the
weight of the evidence.” 805 F.2d at 953. According to Tippens, the
contradictory affidavit rule applies only in “the type of irreconcilable
conflict that amounts to a transparent sham which should be
disregarded.” Id. at 955; see Lowie v. Raymark Indus., 676 F. Supp. 1214,
1217 (S.D. Ga. 1987) (citing Tippens in making the distinction between
statements that are merely inconsistent with those that are contradictory).
As noted in Fustok v. Conticommodity Servs., Inc., 577 F. Supp. 852, 859
n.30 (S.D.N.Y. 1984), “instances in which the assertions in an affidavit are
so blatantly contradictory of those in a prior deposition that the affidavit
must be disregarded” are “rare.”
Even where the statements are blatantly contradictory, the
contradictory affidavit rule is not automatically applied. A number of
courts have held that a plausible explanation for a contradiction is
18
sufficient to avoid the application of the contradictory affidavit rule. See,
e.g., Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d
Cir.), amended, 169 F.3d 782 (2d Cir. 1998); Jack v. Trans World Airlines,
Inc., 854 F. Supp. 654, 660 (N.D. Cal. 1994). And “[o]bviously, a plausible
showing would require considerably less than would a probable one.” State
v. Vargas, 704 P.2d 125, 129 (Or. Ct. App. 1985).
There is also a question of whether the contradictory affidavit rule
should be limited only to affidavits of interested parties. For example, in
Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009), the Ninth Circuit
declared that the rule does not apply to third parties. Similarly, in Lane
v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986), the Eleventh
Circuit stated, “[W]e would be unable, absent great trepidation, to affirm a
similar finding with respect to a disinterested witness’ contradictory
affidavit.” But in Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 521 (7th
Cir. 1988), the court noted that while the contradictory affidavit rule
generally applied only to parties, there was no reason why the rule should
not be extended to a party’s experts.
Finally, there is a question of timing. The contradictory affidavit rule
is usually employed where an affidavit is produced at the last minute to
avoid summary judgment after the witness has made contradictory
statements in a prior deposition. The circumstances are described as
suspicious when a contradictory affidavit magically appears at the last
minute after an extensive deposition has been taken of the party in order
to defeat summary judgment. See, e.g., Orta-Castro v. Merck, Sharp &
Dohme Química P.R., Inc., 447 F.3d 105, 110 (1st Cir. 2006); Torres v. E.I.
Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000); Colantuoni v.
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994).
19
The question is whether the reverse is true, where a deposition
contradicts a prior statement made in a case. Where the deposition has
been taken at the request of the opposing party, the statements made at
the deposition seem less likely to be a sham than when a last-minute
statement is prepared by the party seeking to avoid summary judgment.
But, as pointed out by the majority, there are two federal courts that
have adopted this approach: The D.C. Circuit in Glass v. Lahood, 786 F.
Supp. 2d 189, 215–16 (D.D.C.), aff’d, No. 11-5144, 2011 WL 6759550(D.C. Cir. Dec. 8, 2011), and the Third Circuit in In re CitX Corp., Inc., 448
F.3d 672, 679–80 (3d Cir. 2006). Yet, while the contradictory affidavit rule
may be applicable in this setting, where the deposition has been taken at
the request of an opposing party, the most recent statements do not quite
have the same suspicious timing.
C. State Court Approaches. While the trend in federal courts
embrace some form of the contradictory affidavit rule, there is no
requirement that state courts follow a similar path. Indeed, many state
courts, including Iowa, have declined to follow Ashcroft v. Iqbal, 556 U.S.
662, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955 (2007). See Hawkeye Foodservice Distribution, Inc.
v. Iowa Educators Corp., 812 N.W.2d 600, 608 (Iowa 2012) (declining to
follow Twombly and Iqbal under Iowa law); Zachary D. Clopton, Procedural
Retrenchment and the States, 106 Calif. L. Rev. 411, 425 (2018) (noting
Iowa, along with eighteen other states, have expressly rejected plausibility
pleading). While we may look to federal precedent for its persuasive power,
we are free to chart our own path.
While the majority of state courts have endorsed some version of the
contradictory affidavit rule, the state courts have generally been somewhat
less enthusiastic about adoption of the contradictory affidavit rule. See,
20
e.g., Randy Wilson, The Sham Affidavit Doctrine in Texas, 66 Tex. B. J. 962,
964–65 (Dec. 2003) (outlining the Texas Supreme Court standard and
adoption of the sham affidavit doctrine in federal court and elsewhere). A
number of states adopted their version of the rule over strong dissents that
generally emphasize the role of juries in determining credibility of
witnesses. See, e.g., Gaboury v. Ir. Rd. Grace Brethren, Inc., 446 N.E.2d
1310, 1316–17 (Ind. 1983) (Hunter, J., dissenting); Yahnke v. Carson, 613
N.W.2d 102, 109 (Wis. 2000) (Bablitch, J., dissenting).
Several states have rejected the rule outright in favor of the
traditional view that credibility determinations are for the jury, not the
judge. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789, 790 (Mass.
App. Ct. 1979) (“[I]t is sufficient that the plaintiff’s later affidavit, if
believed, indicated that the contrary is true.”); Delzer v. United Bank of
Bismark, 484 N.W.2d 502, 508 (N.D. 1992) (requiring consideration of all
affidavits, interrogatories, etc. in the light most favorable to the opponent
of summary judgment, but noting that there are certainly cases where
contradictions in a party’s discovery testimony will result in summary
judgment because they are so extreme or far-fetched as to be
unbelievable); Pierce v. Riggs, 540 A.2d 655, 656–57 (Vt. 1987) (finding the
rationale behind the contradictory affidavit rule unpersuasive). The case
against application of the contradictory affidavit rule was also well made
in Pittman v. Atlantic Realty Co., 754 A.2d 1030 (Md. 2000), which
emphasized that the contradictory affidavit rule
shift[s] the credibility determination from the trier of fact at
trial, where the trier of fact would have the benefit of observing
the witness’s demeanor on cross-examination, to the trial
court on summary judgment, where the trial court would be
limited to a paper record.
Id. at 1045.
21
Like the federal cases, however, many state court cases that
ultimately embraced the contradictory affidavit rule have emphasized its
narrowness. For example, in Henderson-Rubio v. May Dep’t Stores Co.,
632 P.2d 1289, 1295 n.6 (Or. Ct. App. 1981), an Oregon appellate court
applied the contradictory affidavit rule where the two statements were
clearly inconsistent and no attempt was made to explain the
inconsistency. Similarly, in Shelcusky v. Garjulio, 797 A.2d 138, 149 (N.J.
2002), the New Jersey Supreme Court noted that “[c]ritical to [the
contradictory affidavit rule’s] appropriate use are its limitations.” The
Utah Supreme Court similarly emphasized that the rule must be
administered with care. Webster v. Sill, 675 P.2d 1170, 1173 (Utah 1983).
A number of state courts have stated that the rule applies only where
the affidavit “directly contradicts” or “clearly conflicts” with the prior
statement. See, e.g., Shelcusky, 797 A.2d at 149 (finding an affidavit must
“patently” and “sharply” contradict earlier deposition testimony);
Henderson-Rubio, 632 P.2d at 1295 n.6 (limiting the application of the rule
only to cases “where the two statements are clearly inconsistent and no
attempt is made to explain the inconsistency”); Kiser v. Caudill, 599 S.E.2d
826, 832 (W. Va. 2004) (observing that the rule prevents direct
contradiction).
The state courts have often recognized that even where there is a
direct contradiction, it is not within the province of the trial court to
disbelieve it for purposes of summary judgment. See, e.g., Taal v. Union
Pac. R.R., 809 P.2d 104, 107 (Or. Ct. App. 1991) (“There is no reason why
contradictory evidence from the same party or witness is less capable than
inconsistent evidence from separate sources to create a disputed fact
question.”). Even in jurisdictions embracing a version of the contradictory
affidavit rule, all that is required is an explanation in which the alleged
22
contradiction is plausible, and the burden of plausibility, of course, is
considerably less than that of probability. See, e.g., Taal, 809 P.2d at 107;
Gaw v. Dep’t of Transp., 798 P.2d 1130, 1141 (Utah Ct. App. 1990).
D. Iowa Approach. The common law right to a jury trial took
centuries to develop. Our founders declared the right to a jury trial
“inviolate” in article I, section 9 of the Iowa Constitution. Iowa Const. art.
I, § 9. The right to a jury trial is a bedrock of a remarkable and venerated
democratic system that vests key governmental powers in everyday
citizens, and not in government bureaucrats or professional judges with
their implicit biases and limited perspectives.
Our system of justice vests the jury with the function of evaluating
a witness’s credibility. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992).
As this court has stated, “Assessment of a witness’s credibility is uniquely
within a lay jury’s common understanding.” Id. Traditionally, only in
circumstances where “[t]he testimony of a witness [is] so impossible and
absurd and self-contradictory . . . should [it] be deemed a nullity by the
court.” Graham v. Chicago & N.W. Ry., 143 Iowa 604, 615, 119 N.W. 708,
711, supplemented on reh’g, 143 Iowa 604, 122 N.W. 573 (1909). This
powerful and important constitutional background must be considered in
determining the appropriate scope of any contradictory affidavit rule.
In Baldi, 880 N.W.2d 451, we applied the contradictory affidavit rule.
In doing so, however, we emphasized that “the inconsistency between a
party’s deposition testimony and subsequent affidavit must be clear and
unambiguous.” Id. at 464 (quoting Van Asdale v. Int’l Game Tech., 577
F.3d 989, 998 (9th Cir. 2009)). We have not had occasion, however, to
develop the contradictory affidavit rule in depth.
E. Discussion of Proper Scope of Rule. From the above
discussion of the caselaw, I think it plain that even where it is embraced,
23
the contradictory affidavit rule is a very narrow doctrine that should be
applied only in the most compelling circumstances. If not so cabined, a
robust version of the contradictory affidavit rule would invade a party’s
right to a jury trial under the Federal and Iowa Constitutions. The
contradictory affidavit rule is a doctrine of last resort and should not be
applied except in the most compelling of circumstances.
I also note that “even where the doctrine is recognized, it has often
defied easy application.” Michael D. Moberly, Applying the Sham Affidavit
Doctrine in Arizona, 38 Ariz. St. L.J. 995, 998–99 (2006). In support of this
proposition, Moberly cites a number of authorities. Id. at 999 n.24; see
Dudo v. Schaffer, 91 F.R.D. 128, 131–33 (E.D. Pa. 1981) (“[T]here can be
no absolute rule as to when it is proper for the [trial] court to exclude from
consideration an affidavit which contradicts earlier deposition
testimony.”); Shelcusky, 797 A.2d at 147 (“Uniform standards on the
application of the sham affidavit doctrine cannot be found in the case
law.”); Cox, Sham Affidavit, 50 Duke L.J. at 272 (“[S]tate courts have
struggled to determine the best method of handling offsetting affidavits
that contradict prior deposition testimony.”). A narrowly defined rule thus
has the benefit of providing more predictability, whilst a broader rule will
foster judicial splatter of caselaw.
III. Application of Contradictory Affidavit Rule to This Case.
I now proceed to apply the test. As indicated in the majority opinion,
in the Susies’ Iowa Rule of Civil Procedure 1.508 disclosure concerning
their expert witness, Dr. Roger Schechter, it stated, in part,
Dr. Schechter will also opine to a reasonable degree of medical
probability regarding the treatability of Sharon Susie’s
infection at the point of time she presented to the urgent care
clinic on September 29, 2012. He is also expected to testify
that had the infection been diagnosed on the day of her visit
to the clinic, and treatment initiated immediately, the spread
24
of the infection, more likely than not, could have been avoided,
the infection would not have become systemic; and the
amputation of Sharon’s arm and toes would more likely than
not have been avoided.
Then, at his subsequent deposition, Dr. Schechter made a number
of statements that are claimed to be contradictory to his statement in the
rule 1.508 disclosure. Specifically,
Q. Or are you here to say that Sharon Susie’s arm was
cut off because of Sara Harty? A. I’m not here to say her arm
was cut off because of Sara Harty. I’m here to say that she
became ill and septic because she wasn’t given a thorough
enough evaluation or followup.
The majority finds this passage sufficient to trigger the contradictory
affidavit rule, but there is nothing in this sequence that directly, clearly,
and unambiguously contradicts Dr. Schechter’s report. Dr. Schechter did
not want to personalize the issue, but he plainly said that Susie “became
ill and septic” because of the lack of a thorough evaluation at urgent care.
The next few lines of testimony also do not directly, clearly, and
unambiguously contradict Dr. Schechter’s report. Specifically, the
additional testimony states,
Q. Isn’t the bottom line, you don’t know what would
have happened to Sharon Susie had she had CBC testing, had
she returned to the clinic in 20 hours or less than 24 hours,
had a comprehensive physical exam been documented? You
don’t know the outcome would not have been exactly the
same. True? A. I don’t know, but the faster you get to care
when you’re sick, the better off you are.
The majority makes much of this language, but it does not
contradict Dr. Schechter’s Iowa Rule of Civil Procedure 1.508 disclosure.
Of course he does not know what the result would have been had she been
given a thorough examination at the clinic. Knowledge implies certainty.
A medical expert who believes a thorough examination at the urgent care
clinic more likely than not would have avoided the subsequent amputation
25
does not “know” that this result necessarily would have occurred. There
is always a chance of a bad outcome, even where it is more likely than not
that, had a breach of the standard of care not occurred, a good outcome
would result. In fact, an expert who believes an outcome is ninety-nine
percent certain if a procedure is followed does not “know” the
counterfactual result.
In a number of other passages, Dr. Schechter agreed that the
outcome––if antibiotics had been timely administered––was “speculative.”
But, again, the concept of speculation is not a binary concept. The burden
on the plaintiff in a medical malpractice case is not to eliminate all
speculation and replace it with a standard of certainty, for that would be
an impossible burden. Further, the mere mention of the word
“speculation” is not a “gotcha moment” entitling the defendant in a medical
malpractice case to summary judgment on causation. Instead, the degree
of speculation must be so great that an expert cannot say, within a
reasonable degree of medical certainly, that, more likely than not, the
outcome would have been different.
Finally we have the last admittedly rather odd testimony from
Dr. Schechter:
Q: Do you agree with that -- that the earlier you get the
antibiotics on board and the more you allow the body to
mobilize in someone’s immune system in response to this
developing infection that you may well more likely than not
have saved her arm?
....
A: To -- I would say it’s a significant possibility ranging
as high as probability that early intervention with antibiotics
could have either at least reduced the progression of the
infection or slowed its progression and potentially have
averted as much tissue loss as she experienced.
26
I think all of us can agree that this answer is difficult to penetrate.
What, exactly, does it mean? And, is it directly, clearly, and
unambiguously contradictory to Dr. Schechter’s rule 1.508 disclosure? I
do not think so. If the follow up question had been posed, asking whether
he believed the arm more likely than not would have been saved, he may
well have answered “yes.”
For the above reasons, I do not believe the contradictory affidavit
rule applies in this case. In order to protect the function of the jury, cases
applying the contradictory affidavit doctrine should be as scarce as hen’s
teeth. Further, the rule’s vitality is at least diminished where the witness
involved is a nonparty expert. While it is certainly possible that a
reasonable jury might find Dr. Schechter’s testimony less than credible in
light of his deposition testimony, that does not justify granting summary
judgment. As a result, I would reverse the ruling of the district court and
remand the matter for further proceedings.