Marcantonio v. Moen

⁴¹⁷ Concurring Opinion by WILNER, J., which HARRELL, J., Joins. 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. ⁴¹⁸ 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 28, 2006. On March 23, 2006, a pretrial order was entered, stating that, except for the plaintiffs 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 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. ⁴¹⁹ 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 HARRELL joins in this concurring opinion. . 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. GREENE, J. 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 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. ³⁹⁹ 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 survivor-ship claims against The Medical Providers.

II

The depositions of two of the Mareantonios’ 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 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 ⁴⁰⁰ 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 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? ⁴⁰¹ 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 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, ⁴⁰² 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 eystadenoma, 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 materially contradicted the experts’ deposition testimony in violation of Maryland Rule 2-501(e). 6 Subsequently, the Cir ⁴⁰³ cuit 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 [ 580 A.2d 206 ], 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 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 court 7 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 ⁴⁰⁴ 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], 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 ⁴⁰⁵ stated herein, we shall reverse the judgment of the Court of Special Appeals.

III

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, 172 N.J. 185 , 797 A.2d 138, 144-45 (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 2-501(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 ⁴⁰⁶ 519 , 754 A.2d at 1033 .

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 , 754 A.2d at 1036 . As a result of striking the affidavits, the motions court granted summary judgment. Pittman, 359 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 deci ⁴⁰⁷ sion 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 at 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. 1907 -08 (Dec. 26, 2003). The Reporter’s Note accompanying the Rules Committee’s 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 2-501(e) mandates that the Rule ap ⁴⁰⁸ plies 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 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