[Cite as Pettiford v. Aggarwal , 2011-Ohio-5209.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

BARBARA PETTIFORD                                   :
                                                    :   Appellate Case No. 24557
        Plaintiff-Appellant                         :
                                                    :   Trial Court Case No. 05-CV-4831
v.                                                  :
                                                    :   (Civil Appeal from
RAJENDRA K. AGGARWAL                                :   (Common Pleas Court)
                                                    :
        Defendant-Appellee                 :
                                                  :
                                               ...........

                                               OPINION

                              Rendered on the 7th day of October, 2011.

                                                .........

LAWRENCE J. WHITE, Atty. Reg. #0062363, 2533 Far Hills Avenue, Dayton, Ohio 45419
    Attorney for Plaintiff-Appellant

KEVIN W. POPHAM, Atty. Reg. #0066335, Arnold Todaro & Welch, 2075 Marble Cliff
Office Park, Columbus, Ohio 43215
       Attorney for Defendant-Appellee

                                                .........

HALL, J.

        {¶ 1} Barbara Pettiford appeals from the trial court’s entry of summary judgment

against her on her medical-malpractice complaint against appellee, Rajendra K. Aggarwal.

        {¶ 2} Pettiford advances three assignments of error on appeal. First, she contends the

trial court erred in finding that her medical expert’s affidavit did not create a genuine issue of

material fact for trial. Second, she claims the trial court erred in relying on defense counsel’s
                                                                                           2


“representations and interpretations.” Third, she argues that the trial court erred in “mixing

and matching” her medical expert’s deposition testimony, thereby taking the testimony out of

context.

       {¶ 3} The record reflects that Pettiford underwent a chest x-ray and an MRI in 1999.

Aggarwal allegedly misinterpreted the x-ray as normal. In 2002, a tumor was discovered on

Pettiford’s lung. As a result, she filed a medical-malpractice action, alleging that Aggarwal

should have detected the tumor in 1999. In the trial court proceedings, Aggarwal’s counsel

deposed Pettiford’s medical expert, Dr. Trent Sickles. During his deposition, Sickles opined

that Aggarwal had deviated from the acceptable standard of care by not detecting a lung mass

on Pettiford’s 1999 x-ray. Sickles offered no opinion about causation or the effect of a

three-year delay in diagnosis on Pettiford’s “treatment or course.” Following the deposition,

Aggarwal filed a renewed motion for summary judgment, alleging that Pettiford would be

unable to provide expert testimony on causation. Pettiford opposed the motion with an

affidavit from Sickles. Therein, Sickles averred that Pettiford had suffered various adverse

consequences as a direct and proximate result of Aggarwal’s negligence. Aggarwal moved to

strike the affidavit, arguing that it improperly contradicted Sickles’s prior deposition

testimony without explanation. The trial court entered summary judgment for Aggarwal

without ruling on the motion to strike or explaining its decision.

       {¶ 4} On appeal, this court reversed in a divided opinion. The lead opinion found

unspecified contradictions between Sickles’s deposition testimony and his later affidavit. The

lead opinion nevertheless found the rule of Byrd v. Smith, 110 Ohio St.3d 24,
                                                                                                                                       3


2006-Ohio-3455, inapplicable because Sickles was not a party.1 Therefore, the lead opinion

held that Sickles’s affidavit was sufficient to create a genuine issue of material fact for trial. A

concurring judge agreed that Byrd did not apply but, in any event, saw no unambiguous

inconsistency between Sickles’s deposition testimony and subsequent affidavit. A dissenting

judge concluded that Byrd did apply and that Sickles’s affidavit completely contradicted his

deposition testimony.

         {¶ 5} On further appeal, the Ohio Supreme Court reversed this court’s decision. In

Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, the majority held that “[a]n

affidavit of a retained, nonparty expert contradicting the former deposition testimony of that

expert and submitted in opposition to a pending motion for summary judgment does not create

a genuine issue of material fact to prevent summary judgment unless the expert sufficiently

explains the reason for the contradiction.” Id. at the syllabus. After finding that the rule of

Byrd applied in the present case, the Ohio Supreme Court added: “The determination of

whether Dr. Sickles’s affidavit contradicted his deposition without a sufficient explanation for

the alleged contradiction is a factual determination that is properly made by the trier of fact.

The trial court did not expound on its reasoning for granting Dr. Aggarwal’s motion for

summary judgment and never ruled on the motion to strike Dr. Sickles’s affidavit, and the

appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd’s

applicability, the appropriate course is to remand this matter to the trial court to apply the

analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in

            1
             In Byrd, the Ohio Supreme Court held that “[a]n affidavit of a party opposing summary judgment that contradicts former
 deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for
 summary judgment.” Id. at paragraph three of the syllabus.
                                                                                               4


that analysis.” Id. at 420.

        {¶ 6} On remand, the trial court determined that Sickles’s affidavit was admissible

but that it did contradict his prior deposition testimony. That being so, the trial court held that

the affidavit failed to create a genuine issue of material fact and entered summary judgment in

Aggarwal’s favor. This appeal followed.

        {¶ 7} In her first assignment of error, Pettiford contends the trial court erred in

finding that Sickles’s affidavit did not create a genuine issue of material fact. She claims the

affidavit merely supplemented Sickles’s deposition testimony and did not contradict it.

Pettiford reasons that Sickles opined about Aggarwal’s breach of the standard of care in his

deposition while offering no opinion on the issue of causation. Thereafter, in his affidavit,

Sickles provided additional information, opining for the first time on the causation issue.

        {¶ 8} Having reviewed Sickles‘s deposition testimony and his affidavit, we see no

error in the trial court’s finding of an unexplained conflict. During his November 14, 2007

deposition, Sickles opined that Aggarwal had breached the applicable standard of care by

failing to recognize a lung mass on Pettiford’s 1999 x-ray. Sickles stated that he did not intend

to offer any opinions about the effect of a three-year delay in discovering the mass on

Pettiford’s “treatment or course.” Sickles also stated that he did not intend to offer any

opinions about “causation.” (Sickles depo. at 38-39, 48). Later in his deposition, Sickles

addressed Pettiford’s diagnosis with a lung tumor in 2002. He testified: “* * * [A]fter I looked

at the records I pretty much determined that I couldn’t testify or give any opinions about

causation, so I haven’t looked at that since a year-and-a-half ago.” (Id. at 56-57). Finally,

Sickles agreed to let defense counsel know if he modified his opinions or formed any

additional opinions after his deposition. (Id. at 63).
                                                                                            5


        {¶ 9} Thereafter, in his summary judgment affidavit, Sickles averred:

        {¶ 10} “1. My name is Trent Sickles. I am a licensed physician in the state of Ohio

and I have given sworn testimony regarding the negligence of Dr. Aggarwal by Barbara

Pettiford.

        {¶ 11} “2. I further agree to testify as an expert for the Plaintiff, Barbara Pettiford

regarding damages she has suffered as a direct and proximate result of Dr. Aggarwal’s

negligence.

        {¶ 12} “3. Specifically, I believe that Ms. Pettiford endured pain and suffering for an

extensive period of time as a direct and proximate result of Dr. Aggarwal’s negligence in

failing to diagnose the tumor in her right lung.

        {¶ 13} “4. I further believe that Ms. Pettiford suffered the crisis of a collapsed lung,

and [an] extended hospital stay as a direct and proximate result of the negligence of Dr.

Aggarwal.”

        {¶ 14} Arguably, no conflict exists between Sickles’s deposition statement that he did

not intend to offer any opinions about causation and his later affidavit rendering such

opinions. An expression of one’s intent not to opine does not necessarily conflict with a later

expression of an opinion. In other words, saying, “I do not intend to tell,” is not inconsistent

with later telling. We are more troubled by Sickles’s deposition statement that, upon

reviewing Pettiford’s records, he “pretty much determined that [he] couldn’t testify or give

any opinions about causation.” Unlike his deposition statement that he did not intend to opine

about causation, Sickles’s deposition statement that he could not opine about causation

directly conflicts with the later opinions offered in his affidavit about causation. Absent some
                                                                                                6


explanation for this contradiction, Byrd precluded Sickles from initially denying the ability to

give causation testimony and then, in response to a summary judgment motion, giving such

testimony. Because Sickles’s affidavit gave no explanation for his newly found ability to

provide causation testimony, the trial court correctly held that the affidavit failed to raise a

genuine issue of material fact for trial. Pettiford’s first assignment of error is overruled.

        {¶ 15} In her second assignment of error, Pettiford claims the trial court erred in

relying on defense counsel’s “representations and interpretations.” As we understand it, her

argument is that the trial court erred in accepting defense counsel’s off-the-record

characterization of the “causation” issue in this case. Specifically, Pettiford disputes the

following sentence found in the “Procedural History” portion of the trial court’s summary

judgment ruling: “Defense counsel recollects that on January 30, 2008, in a final pre-trial

conference with the Court, Plaintiff admitted that she did not have an expert to testify as to the

issue of causation.”

        {¶ 16} According to Pettiford, she had admitted all along that she could not prove a

causal connection between Aggarwal’s alleged misreading of her 1999 x-ray and the need for

her lung to be removed. Thus, she contends that when Sickles testified during his deposition

that he could not offer an opinion on “causation,” the doctor meant that he could not say

whether an accurate reading of her x-ray in 1999 would have saved her lung. Pettiford

contends Sickles did not mean that he was unable to opine about whether Aggarwal’s alleged

1999 misreading of the x-ray caused her 2002 collapsed lung and pneumenectomy. Pettiford

insists that the causal connection between Aggarwal’s alleged 1999 misreading of the x-ray

and her 2002 collapsed lung was “obvious” to everyone.

        {¶ 17} Upon review, we find Pettiford’s second assignment of error to be
                                                                                              7


unpersuasive. Regardless of what the trial court believed Pettiford had “admitted” when it

summarized the procedural history of her case, the crucial issue is whether Sickles’s affidavit

conflicted with his November 14, 2007 deposition testimony. On that issue, we find an

unexplained conflict for the reasons set forth above. Under the Ohio Supreme Court’s recent

ruling in this case, Sickles bore the burden to explain why his deposition testimony conflicted

with his affidavit regarding his ability to offer an opinion on causation. Pettiford, at 414. In

his affidavit, Sickles could have attempted to explain the conflict by urging the distinction that

Pettiford articulates on appeal. He did not. As a result, the trial court did not err in finding

Sickles’s affidavit inadequate to create a triable issue of fact. The second assignment of error

is overruled.

       {¶ 18} In her third assignment of error, Pettiford argues that the trial court erred in

taking Sickles’s deposition testimony out of context by “mixing and matching” it. This

argument lacks merit. During his deposition, Sickles was asked directly, “Do you intend to

render any causation opinions in this case?” He responded, “No.” (Sickles depo. at 39). As

noted above, Sickles later added that, after reviewing the records, he “pretty much determined

that he couldn’t testify or give any opinions about causation.” (Id. at 56-57). In his subsequent

affidavit, Sickles rendered opinions about causation without explaining his ability to do so.

Having examined Sickles’s deposition and affidavit, we are unpersuaded that the trial court

erroneously found a conflict by reading portions of the deposition out of context. The third

assignment of error is overruled.

       {¶ 19} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                        ..............

FAIN and DONOVAN, JJ., concur.
                        8


Copies mailed to:

Lawrence J. White
Kevin W. Popham
Hon. Frances E. McGee
