Yahnke v. Carson

• Decision Date: 30 June 2000
• Docket Number: No. 99-0056.,99-0056.
• Citation: 2000 WI 74,236 Wis.2d 257,613 N.W.2d 102
• Parties: Cathy R. YAHNKE, Bruce E. Yahnke, Melissa Yahnke, and Bruce Yahnke, Jr., Plaintiffs-Appellants, The CONNECTICUT INDEMNITY COMPANY, Plaintiff-Co-Appellant, v. Larry V. CARSON, M.D., Jovan L. Djokovic, M.D., Physicians Insurance Company of Wisconsin, Inc., and Patients Compensation Fund, Defendants-Respondents-Petitioners, MERCY HOSPITAL OF JANESVILLE, Wisconsin Development Foundation, Inc., Ohic Insurance Company, Defendant-Respondent.
• Court: Wisconsin Supreme Court

236 Wis.2d 257

2000 WI 74

613 N.W.2d 102

Cathy R. YAHNKE, Bruce E. Yahnke, Melissa Yahnke, and Bruce Yahnke, Jr., Plaintiffs-Appellants, The CONNECTICUT INDEMNITY COMPANY, Plaintiff-Co-Appellant, v. Larry V. CARSON, M.D., Jovan L. Djokovic, M.D., Physicians Insurance Company of Wisconsin, Inc., and Patients Compensation Fund, Defendants-Respondents-Petitioners, MERCY HOSPITAL OF JANESVILLE, Wisconsin Development Foundation, Inc., Ohic Insurance Company, Defendant-Respondent.

No. 99-0056.

Supreme Court of Wisconsin.

Oral argument May 25, 2000.

Decided June 30, 2000.

For the defendants-respondents-petitioners there were briefs by Barrett J. Corneille, David J. Pliner and Corneille Law Group, L.L.C., Madison, and oral argument by David J. Pliner.

For the plaintiffs-appellants there was a brief by Thomas E. Greenwald and Oliver, Close, Worden, Winkler & Greenwald, Rockford, Illinois, and oral argument by Thomas E. Greenwald.

¶ 1. DIANE S. SYKES, J.

This case raises the question of whether Wisconsin should adopt the federal "sham affidavit" rule as part of its summary judgment procedure. The issue arises because the plaintiffs in this medical malpractice action responded to the defendants' summary judgment motion by submitting an expert witness affidavit that contradicted the expert's deposition testimony. The circuit court applied the federal rule, which generally prohibits affidavits that contradict prior deposition testimony from creating issues of fact for trial, and granted summary judgment dismissing the action.

¶ 2. The court of appeals reversed, deferring to this court on whether to adopt the federal "sham affidavit" rule and concluding that the affidavit here was sufficient to create a genuine issue of material fact under current summary judgment procedure. We accepted review and now adopt the federal "sham affidavit" rule as an effective tool for circuit courts to use in evaluating the existence of genuine factual issues on motions for summary judgment. Therefore, we reverse. ¶ 3. The relevant facts are as follows. In July 1993, Cathy Yahnke underwent carpal tunnel surgery performed by Dr. Larry V. Carson. Shortly after the surgery, Yahnke developed a disfiguring condition in her right hand and arm known as "Volkman's Contracture," a forced contracture of the forearm, wrist and hand inflection of the fingers. Yahnke and her family sued Carson, Dr. Jovan Djokovic, the anesthesiologist, and Mercy Hospital for malpractice.

¶ 4. During discovery, the Yahnkes named two medical experts, Dr. Safwan Jaradeh, a neurologist, and Dr. Hani Matloub, a surgeon, both of whom had treated Yahnke after the surgery. After some delay, both were made available for deposition. In their depositions, neither expert was able to state that any of the defendants had breached the standard of care owed to Yahnke. Jaradeh, in fact, admitted that he was not qualified to render an opinion on Carson's work (the circuit court noted that Jaradeh is a neurologist, not a surgeon). Matloub, the surgical expert, was asked numerous questions about the cause of Yahnke's condition and was unable to link it to the surgery performed by Carson. At the end of his deposition, Matloub was asked a summarization question: "Given your testimony, is it accurate to say that you do not have any criticism of the standard of care utilized by Dr. Carson in his care and treatment of the patient?" Matloub replied, "That's correct."

¶ 5. Carson, Djokovic and Mercy Hospital each moved for summary judgment, arguing that the Yahnkes' expert witnesses failed to establish negligence in connection with Yahnke's surgery. The Yahnkes responded to the motion by first asking leave of the court to name new experts. The circuit court denied the motion. ¶ 6. The Yahnkes then changed counsel and produced affidavits from Jaradeh and Matloub that stated that Yahnke's contracture resulted from nerve injury she sustained during the surgery; that the most likely cause of this injury was inadequate blood flow to her arm; and that the lack of blood flow was caused by excessive pressure on her upper arm most likely caused by a tourniquet or perhaps a tightly inflated blood pressure cuff. Matloub's affidavit stated that Volkman's Contracture would not normally occur if the surgeon performed his work within the ordinary standard of care.

¶ 7. The affidavits obviously contradicted the earlier deposition testimony. Matloub's affidavit attempted to explain the contradiction:

The testimony I gave at my deposition held on May 15, 1998. . .was based upon my considering only the quoted testimony of Dr. Jaradeh or quoted portions of certain identified EMG reports and not any other records or my examinations of Cathy Yahnke, my treatment of Cathy Yahnke, my discussions with Dr. Brad Grunert and Dr. Jaradeh or other information which I have acquired regarding Cathy Yahnke. The opinions that I have expressed in the preceding portions of this affidavit are based upon much more information than the limited information which I was asked to consider and which I was asked to assume was correct by the attorneys asking me those questions.

¶ 8. The Circuit Court for Rock County, the Honorable Richard T. Werner, granted summary judgment in favor of Djokovic (the anesthesiologist) and Mercy Hospital, because the plaintiffs' experts were not qualified to express opinions about the standard of care for anesthesiologists and had not even mentioned any problems with the care provided by the hospital's employees. The circuit court also granted Carson's motion, noting that: 1) Jaradeh had no opinion about the surgeon's standard of care and was unqualified to testify about it in any event, and 2) Matloub's affidavit directly contradicted his deposition testimony. As to the contradictory affidavit, the court found the explanation for the contradiction to be "unconvincing and, more importantly, not supported by the record." The court explained:

This affidavit contradicts his deposition testimony. He explains this by stating that his opinions at deposition were strictly limited to a review of the Mercy Hospital surgery records. This is simply not true. A review of Dr. Matloub's deposition reveals that he reviewed the Mercy Hospital operative records, subsequent EMG results, and Mayo Clinic analysis of Mrs. Yahnke's muscle tissue. He had reviewed Mrs. Yahnke's medical chart and records at Froedtert Memorial Lutheran Hospital. He consulted with Dr. Grunert and co-authored a letter concerning Mrs. Yahnke in March, 1998. He also spoke with Dr. Jaradeh about Mrs. Yahnke. In short, before expressing his opinion at his deposition, Dr. Matloub had reviewed a considerable amount of medical information concerning Mrs. Yahnke and her condition.

Referring to federal case law on the effect of affidavits that conflict with deposition testimony, the court concluded that Matloub's affidavit was insufficient to create a genuine factual issue for trial, and entered summary judgment dismissing the case in its entirety.

¶ 9. The Yahnkes appealed, and the court of appeals reversed in part, concluding that the Matloub affidavit created a genuine factual issue about whether Carson had breached the standard of care required of a surgeon.¹ The court noted the federal rule prohibiting parties from creating a factual dispute on summary judgment by submitting an affidavit that conflicts with earlier deposition testimony, but deferred to this court to adopt or reject the rule for Wisconsin. We accepted review.

[1, 2]

¶ 10. We review an order for summary judgment de novo, using the same methodology as the circuit court. Nierengarten v. Lutheran Soc. Servs., 219 Wis. 2d 686, 694, 580 N.W.2d 320 (1998). Summary judgment is appropriate when "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 a judgment as a matter of law." Wis. Stat. § 802.08(2)(1995-96).² The well-established purpose of summary judgment procedure is to determine the existence of genuine factual disputes in order to "avoid trials where there is nothing to try." Rollins Burdick Hunter of Wisconsin, Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d 752 (1981); Caulfield v. Caulfield, 183 Wis. 2d 83, 91, 515 N.W.2d 278 (Ct. App. 1994). Although our review is de novo, we benefit from the analyses of the circuit court and the court of appeals. Nierengarten, 219 Wis. 2d at 694. [3]

¶ 11. Under Wisconsin law as it now stands, an affidavit submitted in response to a summary judgment motion can suffice to create an issue of fact for trial and defeat summary judgment even if it flatly contradicts the witness's earlier deposition testimony. An affidavit that conflicts with prior testimony is generally thought to create a credibility question, and a circuit court does not decide issues of credibility on summary judgment. Pomplun v. Rockwell Int'l Corp., 203 Wis. 2d 303, 306-07, 552 N.W.2d 632 (Ct. App. 1996)(citing Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980)). However, the ability to create trial issues by submitting affidavits in direct contradiction of deposition testimony reduces the effectiveness of summary judgment as a tool for separating the genuine factual disputes from the ones that are not, and undermines summary judgment's purpose of avoiding unnecessary trials. The federal courts have responded to this phenomenon by developing the so-called "sham affidavit" rule, but to date, Wisconsin has not followed suit.

¶ 12. The court of appeals has split on this issue. In Wolski v. Wilson, 174 Wis. 2d 533, 539-41, 497 N.W.2d 794 (Ct. App. 1993), the court of appeals held that an affidavit submitted by the plaintiff in contradiction of his earlier deposition testimony was sufficient to create a material issue of fact, precluding summary judgment. The court specifically concluded that...