Charles Marcantonio, Personal Representative of The Estate of Sherri Schaefer, et al. v.
Melissa Moen, M.D., et al., No.4, September Term, 2008
HEADNOTE:
SUMMARY JUDGMENT—MARYLAND RULE 2-501(e), CONTRADICTORY
AFFIDAVITS OR STATEMENTS—
In a wrongful death and survivorship action, Petitioners submitted affidavits from two
expert witnesses who opined that the Respondents’ negligence proximately caused the
decedent’s death. The trial court granted Respondents’ motions to strike the affidavits on
the basis that they materially contradicted the experts’ prior deposition testimony in
violation of Md. Rule 2-501(e). The affidavits were improperly stricken as they do not
materially contradict the experts’ prior deposition testimony within the meaning of
Maryland Rule 2-501(e). Rule 2-501(e) does not define “material contradiction,” and
thus, we interpret the terms as they are ordinarily and popularly understood in the English
language. An affidavit materially contradicts prior sworn testimony in violation of Rule
2-501(e) when it contains a statement of material fact that is significantly contradictory
to, or irreconcilable with, the affiant’s prior sworn statement.
In the Circuit Court for Anne Arundel County
Civil
IN THE COURT OF APPEALS
OF MARYLAND
No. 4
September Term, 2008
CHARLES MARCANTONIO,
Personal Representative of The Estate of Sherri
Schaefer, et al.
v.
MELISSA MOEN, M.D., et al.
Bell, C.J.
Harrell
Battaglia
Greene
Eldridge, John C. (Retired, Specially
Assigned)
Raker, Irma S. (Retired, Specially
Assigned)
Wilner, Alan M. (Retired, Specially
Assigned),
JJ.
Opinion by Greene, J.
Harrell and Wilner, JJ., Concur.
Filed: November 5, 2008
In this case we must determine whether the Circuit Court for Anne Arundel County
erred in striking the affidavits of two proposed expert witnesses pursuant to Maryland Rule
2-501(e). Because we conclude that it was error to strike the affidavits, we shall hold that the
Circuit Court improperly granted summary judgment in favor of Respondents, Melissa Moen,
M.D. et. al (“The Medical Providers”),1 on the basis that Petitioners, Charles Marcantonio,
et al. (“Marcantonios”), failed to establish that The Medical Providers’ negligence was the
proximate cause of Sherri Schaefer’s death.
I.
In August of 2000, Sherri Schaefer visited her gynecologist, Melissa Moen, M.D., and
informed Dr. Moen that she was experiencing abnormal vaginal bleeding. It is alleged that
Dr. Moen ordered a transabdominal and transvaginal pelvic ultrasound to aid her in
determining the cause of the bleeding, but failed to perform an endometrial biopsy at that
time.2 The ultrasound was performed on September 11, 2000, and subsequently interpreted
by radiologist, Paula DeCandido, M.D. When interpreting the ultrasound, Dr. DeCandido
failed to report a 1.5 centimeter mass located on Ms. Schaefer’s right ovary.
After the August and September, 2000 visits, Ms. Schaefer continued to experience
1
“The Medical Providers” refers to Respondents Melissa Moen M.D., Paula
DeCandido, M.D., Anne Arundel Diagnostics, Inc., Womens OB/GYN, P.A., and Anne
Arundel Medical Center, Inc.
2
The National Cancer Institute, Dictionary of Cancer Terms, defines endometrial
biopsy as “a procedure in which a sample of tissue is taken from the endometrium (inner
lining of the uterus) for examination under a microscope.” http://www.cancer.gov/dictionary
(last visited Oct. 14, 2008). There is a dispute between the parties as to whether Dr. Moen
recommended that an endometrial biopsy be performed during the August 2007 visit.
physical problems and complained to Dr. Moen of pelvic symptoms and irregular bleeding.
In April of 2001, Dr. Moen performed an endometrial biopsy of Ms. Schaefer’s uterus and
discovered that Ms. Schaefer had endometrial cancer. In May of 2001, after being diagnosed
with cancer, Ms. Schaefer began treatment with Robert Bristow, M.D., a gynecological
oncologist, at the Johns Hopkins Medical Center. Dr. Bristow operated on Ms. Schaefer in
June of 2001; however, the operation did not help Ms. Schaefer survive her cancer. Dr.
Bristow continued to treat Ms. Schaefer until her death on May 18, 2005.
Prior to her death, Ms. Schaefer and her husband, Charles Marcantonio, filed a cause
of action for medical negligence against The Medical Providers alleging that they negligently
failed to diagnose and treat Ms. Schaefer’s endometrial and ovarian cancer in August and
September of 2000. Specifically, the complaint alleged that Dr. Moen breached the
applicable standard of care by failing to perform an endometrial biopsy in August of 2000
and that Dr. DeCandido breached the standard of care by failing to report the 1.5 centimeter
mass disclosed as a result of Ms. Schaefer’s September 2000 ultrasound. After Ms.
Schaefer’s death, Charles Marcantonio amended the complaint to add wrongful death and
survivorship claims against The Medical Providers.
II.
The depositions of two of the Marcantonios’ expert witnesses, Drs. Hutchins and
Shmookler, are pertinent to our review of this case. At his deposition, Dr. Hutchins testified
that he believed to a reasonable degree of medical probability that Dr. Moen departed from
the applicable standard of care in failing to perform an endometrial biopsy of Ms. Schaefer’s
2
uterus during or shortly after Ms. Schaefer’s August 2000 visit. Dr. Hutchins opined that
if Dr. Moen had performed the endometrial biopsy, she would have been able to properly
diagnose and treat Ms. Schaefer’s condition. Dr. Hutchins’ exact words were as follows:
My opinion is that in response to the abnormal bleeding [Dr.
Moen] was required to do an endometrial biopsy as soon as is
possible. The longer you wait, the more likely the patient is to
suffer the consequences of the delay. And the whole time
period from the 25th of August until ultimately the biopsy was
done, in that whole time period, I guess we would have to say
until [Dr. Moen] did it, she was in breach of the standard of
care.
Moreover, Dr. Hutchins indicated that had Ms. Schaefer’s condition been properly diagnosed
and treated in August or September of 2000, she would have had an 80 percent chance of
survival. During the course of the deposition, the following exchange also occurred:
Counsel: Are you going to be rendering an opinion within
reasonable medical probability as to M[s]. Schaefer’s cause of
death?
Dr. Hutchins: No.
In a subsequent affidavit, Dr. Hutchins stated:
This will confirm that I hold the following opinion within a reasonable
degree of medical probability: Dr. Moen’s failure to properly diagnose
Ms. Scheaffer’s [sic] condition as an early carcinoma of the uterus,
and/or a precancerous lesion and/or some form of hyperplasia in
August or September of 2000 and the resultant failure to begin
immediate treatment were the proximate cause of Ms. Scheaffer’s [sic]
death.
The second expert witness, Dr. Shmookler, testified at his deposition that the 1.5
centimeter mass on Ms. Schaefer’s right ovary that Dr. DeCandido failed to report in
3
September of 2000 was in all probability benign, yet a precursor to cancer. He went on to
opine that had Ms. Schaefer’s condition been properly diagnosed in September 2000, that in
all medical probability, her cancer would have been curable. Later in his deposition, the
following exchange occurred:
Counsel for The Medical Providers: Do you have an opinion to
a reasonable degree of medical probability as to what [Ms.
Schaefer’s] staging[3] was in July of 2001?
Dr. Shmookler: No, I don’t, because as I said, that’s more–
particularly in a case like this, I would defer to the oncologist or
gynecologic oncologist. They would stage this.
***
Counsel for The Medical Providers: Do you have an opinion
within reasonable medical probability as to Ms. Schaefer’s
prognosis [4] in May of 2001?
Dr. Shmookler: Not as far as survival or anything like that. I’m
not going to be going into that.
***
Counsel for Dr. Shmookler: Just so counsel is clear, [Dr.
Shmookler] does have an opinion as to whether the cancer could
have been cured if the treatment was rendered back at the time
3
Staging involves “[p]erforming exams and tests to learn the extent of the cancer
within the body, especially whether the disease has spread from the original site to other parts
of the body. It is important to know the stage of the disease in order to plan the best
treatment.” National Cancer Institute, Dictionary of Cancer Terms,
http://www.cancer.gov/dictionary (last visited Oct. 14, 2008).
4
The National Cancer Institute, Dictionary of Cancer Terms, defines prognosis as
“[t]he likely outcome or course of a disease; the chance of recovery or recurrence.”
http://www.cancer.gov/dictionary (last visited Oct. 14, 2008).
4
of the sonogram. It’s not exactly your question, but I don’t want
you to be surprised at trial if [Dr. Shmookler] renders opinions
as to the histopathology[5]and the–whether it was curable earlier
on.
***
Counsel for The Medical Providers: Do you have an opinion as
to Ms. Schaefer’s prognosis at any point in time from August
2000 through July of 2001?
Dr. Shmookler: Well, I believe, at the time of the sonogram, the
first sonogram, which was . . . September of 2000 again, as far
as the ovary, as I said, we know there was a complex mass there.
We also know that it was one to one and a half centimeters. I
believe at that point it was, as I said earlier, a cystadenoma,
which is a benign tumor, so there is no chance of metastasis
there, and I also mentioned that the endometrial tumor was in a
much earlier stage, that it was not invasive, it was probably
atypical hyperplasia or maybe carcinoma in situ, so I think, had
that been diagnosed in September of 2000, in all medical
probability that uterine cancer would have been curable.
In a subsequent affidavit, Dr. Shmookler stated:
I have reviewed the pathology slides of the decedent, Sherri
Scheaffer [sic], as well as the original endometrial biopsy and
other medical records. I provided a deposition at the request of
the defendants to this action. . . . The failure to properly evaluate
the ovarian tumor of Sherri Scheaffer [sic] in September of
2000, when it was in an early stage, was a substantial factor in
proximately causing her death.
Upon motions by The Medical Providers, the Circuit Court for Anne Arundel County
struck the affidavits of Drs. Shmookler and Hutchins on the basis that the affidavits
5
The National Cancer Institute, Dictionary of Cancer Terms, defines histopathology
as “the study of diseased cells and tissues using a microscope.”
http://www.cancer.gov/dictonary (last visited Oct. 14, 2008).
5
materially contradicted the experts’ deposition testimony in violation of Maryland Rule 2501 (e).6 Subsequently, the Circuit Court granted The Medical Providers’ joint motion for
summary judgment on all counts against the Marcantonios, concluding that the Marcantonios
had failed to provide sufficient evidence that The Medical Providers’ negligence proximately
caused Ms. Schaefer’s death. The Circuit Court elaborated on its conclusion as follows:
The Court will grant the Defense motions for summary
judgment, because I think that the case of Fennell v. Southern
Maryland Hospital, 320 Md. 776, is controlling in the sense that
the [Marcantonios], even assuming the things that have been
pointed out in the depositions, have not offered evidence that
would establish proximate causation of 51 percent or more of
the chance of loss . . . of survival.
A majority of the Court of Special Appeals agreed with the Circuit Court’s conclusion
6
Maryland Rule 2-501 (e), Contradictory Affidavit or Statement.
(1) A party may file a motion to strike an affidavit or other
statement under oath to the extent that it contradicts any prior
sworn statement of the person making the affidavit or statement.
Prior sworn statements include (A) testimony at a prior hearing,
(B) an answer to an interrogatory, and (C) deposition testimony
that has not been corrected by changes made within the time
allowed by Rule 2-415.
(2) If the court finds that the affidavit or other statement under
oath materially contradicts the prior sworn statement, the court
shall strike the contradictory part unless the court determines
that (A) the person reasonably believed the prior statement to be
true based on facts known to the person at the time the prior
statement was made, and (B) the statement in the affidavit or
other statement under oath is based on facts that were not known
to the person and could not reasonably have been known to the
person at the time the prior statement was made or, if the prior
statement was made in a deposition, within the time allowed by
Rule 2-415 (d) for correcting the deposition.
6
that the affidavits of Drs. Hutchins and Shmookler materially contradicted the experts’
deposition testimony. Marcantonio v. Moen, 177 Md. App. 664, 937 A.2d 861 (2007). In
regard to the decision to strike Dr. Hutchins’ affidavit, the intermediate appellate court7
reasoned as follows:
At deposition, Dr. Hutchins flatly said he was not going to be
giving an opinion as to the cause of Ms. Schaefer’s death. In his
affidavit, Dr. Hutchins expressed an opinion as to the cause of
Ms. Schaefer’s death. In other words, without any explanation
(see Md. Rule 2-501 (e) (2)), Dr. Hutchins did the exact
opposite of what he said at deposition that he was not going to
do. It is difficult to imagine a more stark contradiction than the
one complained about by [The Medical Providers].
Marcantonio, 177 Md. App. at 693, 937 A.2d at 878. Pertaining to Dr. Shmookler’s
affidavit, the court reasoned:
[I]n a case of this sort, it is highly relevant as to what a
decedent’s chance of survival is at the time the appropriate
treatment commenced. Without an opinion in that regard, no
expert, no matter how well qualified, can say in a case like this
whether it is more probable than not that a healthcare provider’s
negligence caused the patient’s death. We therefore agree with
the circuit court and with [The Medical Providers] that there was
a material contradiction between what Dr. Shmookler told the
attorneys in deposition and what he said in his affidavit.
Marcantonio, 177 Md. App. at 697, 937 A.2d at 880. The Court of Special Appeals
concluded that “without [the affidavits of Drs. Shmookler and Hutchins], summary judgment
was appropriate because the evidence, taken in a light most favorable to the [Marcantonios],
7
All references to the intermediate appellate court or Court of Special Appeals refer
to the majority’s opinion unless otherwise noted.
7
showed only a possibility that [The Medical Providers’] negligence caused Ms. Schaefer’s
death.” Marcantonio, 177 Md. App. at 691, 937 A.2d at 877. In a dissenting opinion, Judge
Meredith concluded that the “[t]he affidavits were not irreconcilably at odds with the
opinions expressed by [the experts] at their depositions, and . . . should not have been
considered mere shams subject to being stricken under Rule 2-501(e).” Marcantonio, 177
Md. App. at 706, 937 A.2d at 885 (Meredith, J., dissenting). We granted the Marcantonios’
petition for writ of certiorari,8 Marcantonio v. Moen, 404 Md. 152, 945 A.2d 1270 (2008),
and for the reasons stated herein, we shall reverse the judgment of the Court of Special
Appeals.
III.
8
The Marcantonios presented the following questions in their petition for certiorari:
1.
Whether a genuine issue of material fact exists on the question of
proximate cause in a wrongful death and survival action arising from
medical malpractice, where the evidence demonstrates that the
defendants’ negligent failure to diagnose and treat stage one cancer (at
which time the patient only had a 1-in-5 chance of dying from the
disease) allowed the cancer to progress to stage III-C (at which time the
risk of death had more than doubled), and the patient ultimately died
from metastatic cancer.
2.
Whether, pursuant to Rule 2-501(e), expert witness affidavits stating
that [The Medical Providers’] negligent failure to detect and treat was
the proximate cause of death “materially contradict” the experts’ prior
deposition testimony, wherein one expert indicated he would not be
rendering an opinion on causation, and the other expert indicated he
would not be rendering an opinion on the patient’s prognosis when the
proper diagnosis and treatment began several months after the
defendants’ failure to diagnose.
8
Rule 2-501 (e), Contradictory Affidavits or Statements
The “sham affidavit” rule is a doctrine that was first articulated by the Second Circuit
in Perma Research and Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969). Collin
J. Cox, Reconsidering the Sham Affidavit Doctrine, 50 DUKE L. J. 261, 267 (2000). Since
Perma, the doctrine has been adopted, to some extent, by every federal circuit and many
state courts. Shelcusky v. Garjulio, 797 A.2d 138, 144-45 (N.J. 2002). This Court first
considered the sham affidavit rule in Pittman v. Atlantic Realty, 359 Md. 513, 754 A.2d 1030
(2000) where we summarized the rule, as originally articulated in Perma, as follows:
“Stated strictly, the Perma [sham affidavit] rule is that, if an
interested party has personal knowledge of the relevant facts,
and if that party cannot explain a material contradiction between
deposition testimony and a subsequent affidavit by the
acquisition of newly acquired evidence, then a trial court may
disregard the affidavit as a ‘sham,’ i.e., as one failing to ‘raise []
any issue which [the trial court] can call genuine.’”
Pittman, 359 Md. at 529, 754 A.2d at 1038. In Pittman, we declined to adopt the Perma
sham affidavit rule, or any variation thereof, utilized by the federal courts. Because the
reasoning and analysis in Pittman is dispositive to our interpretation of Maryland Rule 2501(e), we discuss the opinion at some length below.
In Pittman, Shari Hall (“Hall”) and her young son, Terran, filed an action against the
owners of a residential property. 359 Md. at 518, 754 A.2d at 1032. The complaint alleged
that Terran had become ill due to lead paint exposure while at the property. Id. During
discovery, Hall provided “vague, confused and inconsistent” information pertaining to the
duration of Terran’s stay at the subject premises. Pittman, 359 Md. at 519, 754 A.2d at 1033.
9
In response to interrogatories, Hall indicated that Terran lived at the premises from 1992 to
1993 and was cared for there from 8:00 am to 4:00 pm Monday through Friday. Id. At
deposition, however, Hall indicated that Terran lived at the premises for a maximum of two
months and visited the premises around two times per week before residing there and three
to four times a week after residing there. Pittman, 359 Md. at 520-21, 754 A.2d at 1034.
Based on the information that Hall provided at her deposition, her and Terran’s causal
relation expert, Howard Klein, M.D, opined that a two month residency was an insufficient
period of exposure to make the premises a substantial factor in causing Terran’s injuries.
Pittman, 359 Md. at 522-23, 754 A.2d at 1034-35.
Citing Dr. Klein’s deposition testimony, the defendants moved for summary judgment
and asserted that Hall had failed to establish that exposure to lead at the subject premises was
a substantial causal factor in bringing about Terran’s injuries. Pittman, 359 Md. at 523, 754
A.2d at 1035. In opposition to the motion for summary judgment, Hall submitted an affidavit
stating that Terran lived at the residence for longer than five months and visited the premises
for seven to eight hours daily before and after living there. Id. In light of this information,
Dr. Klein also filed an affidavit opining that the presence of lead paint in the subject premises
was a substantial cause of Terran’s elevated blood lead levels. Pittman, 359 Md. at 524, 754
A.2d at 1036. The Circuit Court for Baltimore City struck the affidavits, concluding that
they significantly contradicted Hall’s deposition testimony.9 Pittman, 359 Md. at 524-25,
9
The court also struck an affidavit submitted by Terran’s grandmother, Gladys Hall,
because the affidavit varied from Gladys Hall’s deposition testimony regarding the duration
10
754 A.2d at 1036. As a result of striking the affidavits, the motions court granted summary
judgment. Pittman, 350 Md. at 529, 754 A.2d at 1036. The Court of Special Appeals
affirmed the Circuit Court’s grant of summary judgment, thereby approving the trial judge’s
decision to strike the affidavits, and in doing so, adopted the sham affidavit rule as articulated
by the federal courts. Pittman, 359 Md. at 526, 754 A.2d at 1036-37.
This Court reversed, holding that the sham affidavit rule was inconsistent with
Maryland law because the rule improperly shifts credibility determinations from the trier of
fact to the trial court on summary judgment. Pittman, 359 Md. at 540-42, 754 A.2d 1041.
In so holding, we stated:
If we were to adopt the sham affidavit rule in order to address
what may be a relatively small number of cases in which sham
affidavits are presented, the downside possibly would be an
increase in the filings of summary judgment motions that are
based on an attempt to convince the trial court that some
variation in the nonmovant’s affidavit was completely and
inexplicably contradictory and that the variation was not simply
a clarification or an elaboration. If a need develops for a sham
affidavit rule, that need ordinarily would be discerned initially
by our Standing Committee on the Rules of Practice and
Procedure.
Pittman, 359 Md. at 541-42, 754 A.2d at 1045.
In 2003, the Rules Committee recommended amending Maryland Rule 2-501 to
include a subsection that addresses contradictory affidavits or statements. 30 Md. Reg. 190708 (Dec. 26, 2003).
The Reporter’s Note accompanying the Rules Committee’s
that Terran and Shari Hall lived at the subject premises. Pittman, 359 Md. at 524-25, 754
A.2d at 1036.
11
recommendation indicates that the proposed amendment was “intended to respond to the
Court of Appeals’ invitation in Pittman v. Atlantic Realty Co., 359 Md. 513, 754 A.2d 1030
(2000), for the Rules Committee to study the issue of ‘sham affidavits.’” 30 Md. Reg. 1125
(Aug. 22, 2003). The Court acted on the Rules Committee’s recommendation and amended
Maryland Rule 5-201 to include subsection (e) In relevant part Rule 2-501(e) specifically
provides that “[i]f the court finds that the affidavit or other statement under oath materially
contradicts the prior sworn statement, the court shall strike the contradictory part . . . .”
In the instant case, The Medical Providers argue that the plain language of Rule 2501(e) mandates that the Rule applies any time an affiant contradicts any prior sworn
statement and not only when an affiant irreconcilably contradicts a prior statement of fact.
They further maintain that the Circuit Court appropriately applied Rule 2-501(e) when
striking the affidavits of Drs. Hutchins and Shmookler. According to The Medical Providers,
Dr. Hutchins’ affidavit materially contradicts his prior deposition testimony because the
affidavit renders an opinion as to the cause of Ms. Schaefer’s death, whereas at his
deposition, Dr. Hutchins stated he was not going to be giving an opinion on this matter.10
As to Dr. Shmookler, The Medical Providers contend that Dr. Shmookler materially
contradicted his deposition testimony that he did not have an opinion as to Ms. Schaefer’s
10
The Medical Providers also argue that the opinion in Dr. Hutchins’ affidavit was
outside of his area of expertise and thus, inadmissible under Maryland Rule 5-702. They
further contend that the affidavit does not relate to Dr. DeCandido and Anne Arundel
Medical Center. We decline to make a determination on these issues as they were not the
basis upon which the Circuit Court struck the affidavits in the proceedings below.
12
staging in July of 2001 or prognosis in May of 2001 by later stating in his affidavit that the
failure to properly evaluate Ms. Schaefer’s tumor in September of 2000 was a substantial
factor in proximately causing her death. The Medical Providers also contend that it was a
material contradiction for Dr. Shmookler to give an opinion as to the cause of Ms. Schaefer’s
death via affidavit when Dr. Shmookler stated at his deposition that he would defer to a
oncologist or gynecological oncologist regarding Ms. Schaefer’s July 2001 staging.11
The Marcantonios counter that the affidavits of Drs. Hutchins and Shmookler do not
materially contradict the experts’ earlier deposition testimony and that the Circuit Court
erroneously struck those documents. The Marcantonios urge that Pittman is instructive in
determining if the affidavits in this case materially contradict the experts’ earlier deposition
testimony. They further point out that, in Pittman, the Court stated that, theoretically, the
sham affidavit rule only applies when there is a flat contradiction of material fact between
deposition testimony and affidavits opposing summary judgment.
The Marcantonios contend that neither Dr. Hutchins’ nor Dr. Shmookler’s affidavit
contains flat contradictions of material fact. They posit that Dr. Hutchins did not state that
he could not render an opinion as to causation, or that The Medical Providers’ negligence
11
The Medical Providers also contend that Dr. Shmookler’s affidavit is legally
insufficient to establish a prima facie case that the alleged failure to diagnose proximately
caused Ms. Schaefer’s death because none of the contentions therein are expressed to a
reasonable degree of medical probability or certainty. We do not address the merit of this
contention, either, because it is not the basis upon which the Circuit Court struck the
affidavit.
13
was not a cause of Ms. Schaefer’s death. Rather, they assert, that at the time of deposition,
Dr. Hutchins simply conveyed that he did not intend to render an opinion as to causation.
The Marcantonios’ argument in regard to Dr. Shmookler is that, his act of providing an
opinion regarding the ramifications of the failure to properly evaluate Ms. Schaefer’s tumor
in September of 2000 does not materially contradict his statements that he would defer to
another type of specialist as to her prognosis in May of 2001 or would not be rendering an
opinion as to her staging in July of 2001.
We hold that the affidavits of Drs. Hutchins and Shmookler do not materially
contradict their respective deposition testimony within the meaning of Rule 2-501(e).12 Rule
2-501(e) does not define “material contradiction,”and thus, we interpret the terms as they are
ordinarily and popularly understood in the English language. See King v. State, 400 Md. 419,
429, 929A.2d 169, 175 (2007) ( noting that when construing a rule, we must first look to the
words of the rule, giving them their ordinary and plain meaning). A contradiction is an “act
of contradicting”; to contradict means to “express or assert the opposite of a statement.”
WEBSTER’S II NEW COLLEGE DICTIONARY 251 (3d ed. 2005); See also Kucharczyk v. State,
235 Md. 334, 338, 201 A.2d 683, 685 (1964) (“When a witness says in one breath that a thing
is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory,
and uncertain to be the basis of a legal conclusion.”). A contradictory statement or action is
12
We do not address whether the affidavits complied with the applicable scheduling
order because that is not the basis upon which the Circuit Court struck the affidavits in the
proceedings below.
14
material if it is significant or essential. BLACK’S LAW DICTIONARY 998 (8th ed. 2004); See
also Miller v. Bay City, 393 Md. 620, 631, 903 A.2d 938, 945 (2006) (indicating that a fact
is material if it “affect[s] the outcome of the case”). Accordingly, a material contradiction
under 2-501(e) is a factual assertion that is significantly opposite to the affiant’s previous
sworn statement so that when examined together the statements are irreconcilable.13 Cf.
Pittman, 359 Md. at 542, 754 A.2d at 1045 (indicating that the sham affidavit rule applies
to “flat” contradictions of material fact).
This definition of material contradiction addresses concerns raised by affidavits like
Shari Hall’s in Pittman. During the Rules Committee’s deliberations on the issue of sham
affidavits, the Committee Chair14 characterized Hall’s affidavit as a “180 degree recantation
that was difficult to believe.” Minutes of the Court of Appeals Standing Committee on the
Rules of Practice and Procedure, 56-57 (Nov. 17, 2000). Pittman thus provides an example
of an affidavit that contains a “material contradiction” that would be properly struck under
Rule 2-501(e). Hall’s affidavit contained factual statements that were irreconcilable with her
previous deposition testimony. In other words, both Hall’s affidavit and her prior statements
could not have been true. Terran and Shari Hall could not have both lived at the subject
13
We thus agree, with Judge Meredith’s dissenting opinion in Marcantonio, where he
concluded that the experts’ affidavits did not contain material contradictions because they
were not “irreconcilably at odds with the opinions expressed by [the experts] at their
deposition.” Marcantonio v. Moen, 177 Md. App. 664, 706, 937 A.2d 861, 885 (2007)
(Meredith, J., dissenting).
14
The Hon. Joseph F. Murphy, Jr. served as Chair of the Rules Committee at this time.
15
premises for five-and-a-half months and for a maximum of two months.
Hinch v. Lucy Webb Hayes Nat. Training, 814 A.2d 926 (D.C. 2003), however,
provides an example of an affidavit that does not materially contradict prior sworn testimony.
Hinch is similar to the case at bar. In Hinch, the trial court granted summary judgment in
favor of the defendants as to the medical negligence claim, on the basis that the plaintiff had
failed to provide sufficient evidence of causation. 814 A.2d at 928. The court reached that
conclusion after striking the affidavit of the plaintiff’s expert witness wherein the expert stated
to a reasonable degree of medical certainty that the defendant’s negligence caused the
plaintiff’s injuries. Id. The court found the expert’s affidavit to be a sham because it
contradicted the expert’s earlier deposition testimony, where the expert indicated that she
could not “tease apart” which of several possible causes of the plaintiff’s injury was the
actual cause of the injury. Hinch, 814 A.2d at 931.
On appeal, in Hinch, the District of Columbia Court of Appeals reversed the trial
court’s grant of summary judgment on the basis that the court improperly struck the expert’s
affidavit. Id. After offering a detailed explanation of the sham affidavit doctrine, the court
held that it was too far of a “stretch” to apply the doctrine to situations where the expert’s
testimony was not “unambiguously and directly” contradictory. Id. The court concluded that
the expert’s statement that the defendant’s negligence more likely than not caused the
plaintiff’s injury, did not materially contradict the expert’s earlier deposition testimony where
she stated that she could not “tease apart” which of several possible causes actually caused
the plaintiff’s injury. Id. The court found these statements reconcilable, reasoning: “[a]t a
16
minimum, for the sham affidavit doctrine to apply, there must be a clear and explicit
contradiction between what is said at deposition and what is said in the affidavit.” Id.
Other jurisdictions also have determined that an affidavit contains material
contradictions only when the assertions contained in the affidavit are significantly
contradictory to, or irreconcilable with, the affiant’s prior sworn testimony. See Shelcusky,
797 A.2d at 149 (indicating that a court should not exclude an affidavit if it does not
“patently” and “sharply” contradict earlier deposition testimony); Tippens v. Celotex Corp.,
805 F. 2d 949, 954-55 (11th Cir. 1986) (concluding that when an affiant indicated at three
places in the deposition testimony that an agreement contained no requirement to purchase
a building in order to obtain a contract, the affiant’s affidavit that stated there was an
agreement to purchase a building in order to obtain a contract, represented “the type of
irreconcilable conflict that amounts to a transparent sham which should be disregarded”);
Webster v. Sill, 675 P.2d 1170 (Utah 1983) (holding that an affidavit that stated the affiant
slipped on wet grass materially contradicted the affiant’s deposition testimony where the
affiant stated that he had not noticed the grass was wet or slippery); Kennett-Murray Corp.
v. Bone, 622 F.2d 887, 894 (5th Cir. 1980) (stating that, “[c]ertainly, every discrepancy
contained in an affidavit does not justify a district court’s refusal to give credence to such
evidence”).
Interpreting the terms “material contradiction” to apply to irreconcilable statements of
material fact comports with and furthers the purpose of the Maryland summary judgment
procedure. Such an interpretation ensures that subsection (e) is utilized to strike affidavits
17
that contain factual assertions that are not genuine. See Pittman, 359 Md. at 534, 754 A.2d
at 1041 (“[C]ourts that have adopted the sham affidavit rule have said that ‘[t]he very object
of summary judgment is to separate real and genuine issues from those that are formal or
pretended, so that only the former may subject the moving party to the burden of trial.’”)
(quoting Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975)). Yet, our
interpretation of a material contradiction also observes the lessons of Pittman by preventing
the motions court from making credibility determinations. See Baltimore v. Kelly, 391 Md.
64, 73, 891 A.2d 1103, 1108 (2006) (indicating that although summary judgment is useful
in “facilitat[ing] the efficient disposition of litigation” in appropriate circumstances, its
function is not to make credibility determinations or factual findings); See also Taylor v.
NationsBank, 365 Md. 166, 174, 776 A.2d 645, 650 (2001) (“Evidentiary matters, credibility
issues, and material facts which are in dispute cannot properly be disposed of by summary
judgment.”).
In the instant case, Dr. Hutchins’ affidavit does not make a factual assertion that
irreconcilably contradicts his prior sworn testimony. Rather, Dr. Hutchins’ affidavit appears
to supplement the testimony he provided at deposition.15 At deposition, Counsel asked Dr.
Hutchins if he was going to be rendering an opinion as to causation and Dr. Hutchins
responded no. It is quite conceivable that Dr. Hutchins did not intend to render an opinion
15
In his dissenting opinion, Judge Meredith also characterized Dr. Hutchins’ and Dr.
Shmookler’s affidavits as supplemental opinions. Marcantonio, 177 Md. App. at 706, 937
A.2d at 885 (2007).
18
as to causation at the time of his deposition, and yet later decided to offer one. Although Dr.
Hutchins’ affidavit is inconsistent with the intention he expressed at his deposition; it is not
factually contradictory to, or irreconcilable with, his deposition testimony. Dr. Hutchins did
not state at deposition that he could not render an opinion as to causation or that it was
unlikely that The Medical Providers’ failure to diagnose Ms. Schaefer’s cancer caused her
death. Thus, we conclude that it was not a material contradiction for Dr. Hutchins to at one
point indicate that he did not intend to do something, and then later in spite of his earlier
inclination, to do that thing he originally did not intend to do.
Dr. Shmookler’s affidavit also does not make a factual assertion that plainly contradicts
his prior sworn testimony. At his deposition, Counsel asked Dr. Shmookler if he had an
opinion as to Ms. Schaefer’s June 2001 staging and Dr. Shmookler responded that he would
defer to a gynecological oncologist or oncologist. Counsel asked Dr. Shmookler if he had an
opinion as to Ms. Schaefer’s May 2001 prognosis and Dr. Shmookler responded he would not
be going into that. Dr. Shmookler also stated at deposition, however, that he believed that Ms.
Schaefer’s cancer would have been curable if The Medical Providers had properly diagnosed
it in September of 2000. Later, Dr. Shmookler indicated in his affidavit that the failure to
properly evaluate Ms. Schaefer’s ovarian tumor in September of 2000 was a substantial factor
in causing her death.
In our view, Dr. Shmookler’s opinion regarding the failure to diagnose the tumor in
September does not materially contradict his lack of opinion as to Ms. Schaefer’s staging or
prognosis in May or June. We disagree with the Court of Special Appeals’ conclusion that
19
because Dr. Shmookler did not have an opinion as to Ms. Schaefer’s prognosis after she
commenced the appropriate treatment for her cancer, that he could not state whether it was
more probable than not that a healthcare provider’s negligence caused Ms. Schaefer’s death.
The statements regarding May and June of 2001 are not factually irreconcilable with the
statement regarding September of 2000. While it is possible that a reasonable trier of fact
might find Dr. Shmookler’s affidavit less credible in light of his deposition testimony, the
motions court does not and should not make credibility determinations when striking an
affidavit pursuant to 2-501(e).
Proximate Cause
Because we determine that the Circuit Court incorrectly struck the affidavits of Drs.
Shmookler and Hutchins, we hold that the Court erroneously entered summary judgment on
the basis that the Marcantonios failed to establish sufficient evidence of proximate cause.16
Proximate cause involves a determination of causation in fact, which is “concerned with the
. . . fundamental . . . inquiry of whether a defendant’s conduct actually produced an injury.”
16
After striking the affidavits, the Circuit Court held that the Marcantonios had failed
to establish proximate causation because the evidence admitted did not indicate that The
Medical Providers’ alleged negligence proximately caused Ms. Schaefer’s injuries and death.
This evidence revealed that at the time The Medical Providers’ allegedly failed to diagnose
Ms. Schaefer’s cancer, she had up to an 80 percent chance of surviving the disease. The
evidence also provided, however, that when gynecological oncologist, Dr. Bristow, began
treating Ms. Schaefer in the Spring of 2001, he opined that she had a 50-60 percent chance
of surviving her cancer. Based on this evidence, the Circuit Court and the Court of Special
Appeals concluded that the Marcantonios could not establish proximate causation because
The Medical Providers’ alleged negligence deprived Ms. Schaefer of, at most, a 30 percent
chance of survival.
20
Peterson v. Underwood, 258 Md. 9, 16-17, 264 A.2d 851, 855 (1970). A plaintiff produces
proof of causation legally sufficient to overcome summary judgment when the plaintiff shows
that it is more probable than not that the defendant’s negligence caused the alleged injury.
Id. Taking into consideration the affidavits of Drs. Hutchins and Shmookler, the evidence of
this case, when viewed in a light most favorable to the Marcantonios, raises genuine issues
of material fact regarding causation.
In addition, we agree with the Marcantonios and with the Court of Special Appeals and
conclude that this case does not involve the issue of “loss of chance” as that doctrine is
defined by Maryland law. “Loss of chance” of survival refers to “decreasing the chance of
survival as a result of negligent treatment where the likelihood of recovery from the preexisting disease or injury, prior to any alleged negligent treatment, was improbable, i.e., 50%
or less.” Fennell v. Southern Maryland Hosp., 320 Md. 776, 781, 580 A.2d 206, 208 (1990).
On the basis of the record before us, the evidence indicates that Ms. Schaefer had an alleged
80 percent chance of survival prior to The Medical Providers’ alleged negligence. Because
Ms. Schaefer’s alleged chance of survival exceeded 50 percent, the loss of chance doctrine
is inapplicable to the Marcantonios’ claims.17
Moreover, this Court declines the Marcantonios’ invitation to revisit our decision in
Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643 (1987), where we held that Maryland does
17
Although the Marcantonios do not allege a loss of chance claim in their complaint,
The Medical Providers referred to the claim as one involving loss of chance at the summary
judgment hearing and the Circuit Court also characterized the claim in that manner.
21
not recognize the loss of chance doctrine in claims brought under the Maryland wrongful
death statute, as codified under Md. Code (1974, 2006 Repl. Vol.), § 3-902 (a) and 3-904 (a)
of the Courts & Judicial Proceedings Article. In Weimer, we concluded that the Maryland
wrongful death statute requires a plaintiff seeking to recover damages under the statute to
prove, by a preponderance of the evidence, that the defendant’s negligence proximately
caused the decedent’s death. 309 Md. at 554, 525 A.2d at 652. Accordingly, we held that
wrongful death claims where the defendant’s alleged negligence deprived the plaintiff of less
than a (50 percent) probable chance of survival are not compensable under Maryland law.
We are not persuaded that this is the proper case to reconsider our decision in Weimer
Specifically, the Marcantonios did not argue in the trial court or the Court of Special Appeals
that Maryland law should be changed to allow recovery for loss of chance in wrongful death
claims. In addition, the facts as alleged do not support a loss of chance claim. Therefore, the
issue is not properly before the Court.18
JUDGMENT OF THE COURT
OF SPECIAL APPEALS
REVERSED. CASE REMANDED
18
Moreover, we note that the legislature has not amended the wrongful death statute
since our decision in Weimer and that under the principle of stare decisis the Court acts in
a “constrained manner” when overruling precedent so as to ensure “stability and integrity in
the law.” Livesay v. Baltimore County, 384 Md. 1, 15, 862 A.2d 33, 41 (2004) (quoting
McMellon v. United States, 387 F.3d 329, 355 (4th Cir. 2004)); See also IBP, Inc. v. Alvarez,
546 U.S. 21, 32, 126 S. Ct. 514, 523 (2005) (“Considerations of stare decisis are particularly
forceful in the area of statutory construction . . . .”); State v. Wiegmann, 350 Md. 585, 604,
714 A.2d 841, 850 (1998) (citations omitted) (“Under the principles of stare decisis, “for
reasons of certainty and stability, changes in decisional doctrine ordinarily should be left to
the Legislature.”).
22
TO THAT COURT WITH
DIRECTIONS TO REVERSE
THE JUDGMENT OF THE
CIRCUIT COURT FOR ANNE
ARUNDEL
COUNTY.
RESPONDENTS TO PAY
COSTS IN THIS COURT AND
IN THE COURT OF SPECIAL
APPEALS.
23
IN THE COURT OF APPEALS
OF MARYLAND
No. 4
September Term, 2008
CHARLES MARCANTONIO
Personal Representative of the
Estate of Sherri Schaefer, et al.
v.
MELISSA MOEN, M.D., et al.
Bell, C.J.
Harrell
Battaglia
Greene
Eldridge, John C. (Retired,
Specially Assigned)
Raker, Irma S. (Retired,
Specially Assigned)
Wilner, Alan M. (Retired,
Specially Assigned)
JJ.
Concurring Opinion by Wilner, J.,
which Harrell, J., Joins.
Filed:
November 5, 2008
I concur in the judgment, principally because I accept the Court’s assessment that there
was not the kind of contradiction between the deposition testimony and later affidavit of
Dr. Hutchins to warrant the striking of the affidavit under Md. Rule 2-501(e). There
clearly was a contradiction of sorts – in deposition, he said he would not be offering an
opinion as to causation and in his affidavit he did offer such an opinion – but I agree that
it was not the kind of contradiction of fact that Rule 2-501(e) was designed to address. I
therefore agree that it was error for the trial court to strike his affidavit and, having struck
it, then to grant summary judgment on the ground that there was no legally sufficient
evidence of causation.
I write separately only to note that, although the striking of Hutchins’s affidavit
cannot be justified by Rule 2-501(e), which was the only basis upon which it was
stricken, there was clearly another ground upon which, had it been argued, the court
could, and probably should, have done what it did.
The initial complaint in this case was filed in November, 2004. Ms. Schaefer was
still alive at the time, and so, other than a loss of consortium claim by her husband,
Marcantonio, the complaint was solely to recover for the personal injuries and expenses
incurred by Ms. Schaefer arising from the spread of the cancer – the pain, the additional
medical procedures and expenses. Ms. Schaefer died in May, 2005, and, in November of
that year, an amended complaint was filed to add a wrongful death claim. Pursuant to a
scheduling order entered in July, 2005, a great deal of discovery had already taken place.
Dr. Shmookler’s deposition was taken in December, 2005, after the amended complaint
had been filed and cause of death first became an issue. Dr. Hutchins’s deposition
occurred in January, 2006. Based on those depositions, the defendants had every right to
believe that (1) Dr. Hutchins would not be rendering an opinion as to the cause of Ms.
Schaefer’s death, because that is what he said, and (2) Dr. Shmookler did not have an
opinion as to what Ms. Schaefer’s “staging” was in July, 2001 or her prognosis of
survivability in May, 2001, because that is what he said.
In February, 2006, an amended scheduling order was entered. It required all
depositions to be completed by March 23, 2006. On March 23, 2006, a pretrial order was
entered, stating that, except for the plaintiff’s deposition of a defense expert, no further
discovery was allowed, that all dispositive motions had to be filed by June 1, 2006, and
that a hearing on any such motion would occur on July 27, 2006.
In conformance with that order, the motion for summary judgment was filed on
June 1, 2006, the basis of it being that the plaintiff had failed to show that Ms. Schaefer’s
death was proximately caused by the negligence of the defendants. The two affidavits at
issue here were attached to the defendant’s answer to the motion, which was filed on July
13, 2006. So far as we have been apprised, no prior notice of the new opinions of Drs.
Hutchins and Shmookler was given to the defendants.
In terms of how this case was presented and argued, those affidavits decisively
changed the legal landscape before the Circuit Court. That court held that, without the
affidavits, the plaintiff had failed to establish the proximate cause of Ms. Schaefer’s death
-2-
and therefore had failed to establish their cause of action.1 With the affidavits, a
sufficient case has been made to avoid summary judgment. The problem, of course, was
that, with discovery having been closed four months earlier and with the defendants
reasonably believing that Dr. Hutchins would not be offering an opinion as to causation,
the defendants were essentially ambushed two weeks before the hearing on their motion,
without any explanation and without any ability, prior to the hearing, to conduct further
discovery as to the basis for Hutchins’s new opinion.
That kind of practice is exactly what scheduling and discovery orders are designed
to prevent. The belated offering of new opinions from previously deposed experts is no
different than a party – plaintiff or defendant – coming up with new experts after
discovery has been closed. That kind of evidence can properly be excluded at trial, and
there is no reason why it may not be excluded in the context of a summary judgment
motion. This is not a matter of unwarranted adherence to some technical rules. It is a
matter of basic fairness and of assuring that litigation is pursued in an efficient and
professional manner.
Unfortunately, this ground was not raised, and the Circuit Court did not consider it.
I hope, however, that this Court’s opinion will not be regarded as precluding the striking
of evidence presented in the manner done in this case. I am authorized to state that Judge
1
Although I question whether that is so, at least with respect to Count I of the
amended complaint (the survival action on behalf of Ms. Schaefer), that ruling is not, and
does not need to be, addressed in this Court’s opinion.
-3-
Harrell joins in this concurring opinion.
-4-
