Wallace v. Lawrence, No. 766-12-10 Wrcv (Teachout, J., May 15, 2014)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Windsor Unit                                                                               Docket No. 766-12-10 Wrcv


PATRICIA WALLACE, Individually and as
Administratrix of the Estate of Randall Wallace
     Plaintiff

v.

YOLANDA LAWRENCE, M.D., et al.
    Defendants



                                     DECISION
              Defendant Green’s Motion to Strike, filed February 25, 2014
        Defendant Green’s Motion for Summary Judgment, filed January 6, 2014

        Defendant Mark Green moves for summary judgment, and also moves to strike an
affidavit of Plaintiff’s expert, Dr. James Colombo, dated January 31, 2014 and filed as
part of Ms. Wallace’s opposition to Mr. Green’s motion for summary judgment.

       Oral argument on the motions was heard on April 16, 2014. Plaintiff is
represented by Attorney Thomas C. Bixby. Defendant Mark Green is represented by
Attorney Keith T. Aten. Attorney Ritchie E. Berger, attorney for Defendant Yolanda
Lawrence, also attended.

       After the oral argument, Attorney Aten submitted a written trial court decision
offered in support of his argument. Attorney Bixby objected to the consideration of the
supplemental filing. The undersigned has not read or considered the supplemental filing
submitted by Attorney Aten.

       This case arises out of the treatment of Patricia Wallace at Springfield Hospital.
Mr. Green is a certified registered nurse anesthetist at the hospital. Ms. Wallace’s claim is
that Mr. Green negligently applied too high a dose of the sedative propofol and that in
doing so proximately caused injuries. Mr. Green argues that the deposition testimony of
Dr. Colombo does not support Ms. Wallace’s theory of medical malpractice.

Motion to Strike

        When deposed on October 18, 2013, Dr. Colombo testified that, despite his
personal misgivings concerning Mr. Green’s selected dosage of propofol, the dosage did
not violate the standard of care. Counsel for Mr. Green subsequently asked Dr. Colombo
if he had any other criticisms of Mr. Green’s conduct in treating Ms. Wallace and Dr.
Colombo replied that he did not. Dr. Colombo was then given the opportunity to offer
any additional opinions concerning Mr. Green’s conduct and he declined.

        Mr. Green thereafter moved for summary judgment on the basis of Dr. Colombo’s
deposition testimony. Ms. Wallace’s opposition to the summary judgment motion was
supported by, among other things, a post-deposition affidavit of Dr. Colombo dated
January 31, 2014 that appears to contradict the testimony he gave when he was deposed.
More specifically, Dr. Colombo’s post-deposition affidavit states that his opinion is that
Mr. Green breached the standard of care with regard to the treatment of Ms. Wallace and
that as a result of this breach Ms. Wallace was harmed.

       Mr. Green argues that Ms. Wallace, in seeking to oppose a summary judgment
motion, cannot rely on an affidavit that contradicts her expert witness’s earlier deposition
testimony. This argument is based on the “sham affidavit doctrine,” and most courts
throughout the country have adopted a version of it. A leading civil procedure treatise
provides this helpful explanation of the doctrine:

               It seems quite clearly correct to conclude that an interested witness
       who has given clear answers to unambiguous questions cannot create a
       conflict and resist summary judgment with an affidavit that is clearly
       contradictory, without providing a satisfactory explanation of why the
       testimony is changed. If such an explanation is proffered, a credibility
       question is presented; without it, there are no facts suggesting why a
       credibility question exists and the nonmoving party should not be allowed
       to manufacture a question of fact to delay resolution of the suit.

10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2726; see also
Travelers Ins. Co. v. Demarle, Inc., 2005 VT 53, ¶ 9, 178 Vt. 570 (explaining that a party
cannot oppose summary judgment by relying on assertions that are directly contradictory
to earlier deposition testimony) and Barlow v. John Crane-Hardaille,Inc., 191 Mich.
App. 244, 250 (1991).

        Ms. Wallace has not presented any explanation for the diametrically different
opinions presented in Dr. Colombo’s deposition testimony and his later affidavit.
Plaintiff’s counsel argues that at the deposition, Dr. Colombo was not asked the right
question that would have elicited an explanation for why Dr. Colombo thought the dose
was inappropriate, and further argues that the affidavit does not contradict the deposition
testimony. However, the questions and answers throughout the deposition were clear.
Counsel for Mr. Green questioned Dr. Colombo about multiple aspects of Ms. Wallace’s
treatment and when asked about the crucial issue of the dosage of sedative used, Dr.
Colombo replied specifically that while critical of the selected dosage, Mr. Green’s
conduct did not violate the standard of care. Dr. Colombo was subsequently given an
opportunity to state if he had any further criticisms or opinions regarding Mr. Green, and
he replied that he did not have any.




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        Based on this record, Ms. Wallace cannot rely on Dr. Colombo’s affidavit to
oppose summary judgment. The broad statement from the affidavit concluding that Mr.
Green breached the standard of care in treating Ms. Wallace is clearly contradicted by Dr.
Colombo’s earlier specific deposition testimony. Moreover, Ms. Wallace has failed to
raise a contested issue of credibility as to whether Dr. Colombo was somehow confused
or misled during his deposition. Accordingly, the court strikes Dr. Colombo’s affidavit.


Motion for Summary Judgment

      The burden is on a plaintiff bringing a medical malpractice claim to prove three
elements:

       (1) The degree of knowledge or skill possessed or the degree of care
       ordinarily exercised by a reasonably skillful, careful, and prudent health
       care professional engaged in a similar practice under the same or similar
       circumstances whether or not within the state of Vermont.

       (2) That the defendant either lacked this degree of knowledge or skill or
       failed to exercise this degree of care; and

       (3) That as a proximate result of this lack of knowledge or skill or the
       failure to exercise this degree of care the plaintiff suffered injuries that
       would not otherwise have been incurred.

12 V.S.A. § 1908. Except in cases where the alleged violation of the standard of care is
so apparent that it can be readily evaluated by laypersons, a plaintiff must present expert
testimony showing defendant’s liability. Larson v. Candlish, 144 Vt. 499, 502 (1984).

        The gravamen of Ms. Wallace’s complaint is that Mr. Green applied too high a
dose of propofol, causing her injuries. Ms. Wallace requires expert testimony to support
this theory. Yet, Dr. Colombo testified that Mr. Green’s actions did not breach the
relevant standard of care. Without expert testimony supporting a breach of the standard
of care, Ms. Wallace cannot satisfy her burden to show the second element required
under 12 V.S.A. § 1908.

       Ms. Wallace’s attempted reliance on pre-deposition expert reports submitted by
Dr. Colombo is also unavailing. These reports are unsworn statements and therefore are
inadmissible as evidence. Because they are inadmissible, they cannot be used to
withstand a summary judgment motion, especially when they differ from later sworn
testimony. See V.R.C.P. 56(c) (stating that a party must present facts in a form that would
admissible in evidence in order to withstand a summary judgment motion).

       Summary judgment in favor of Mr. Green is appropriate because Ms. Wallace
cannot sustain an essential element of her malpractice claim. Ms. Wallace bears the
burden of showing that Mr. Green’s conduct deviated from the standard of care. She has



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failed to produce any admissible evidence to satisfy this burden. Therefore, Mr. Green’s
summary judgment motion is granted.



                                        ORDER

       Defendant Green’s Motion to Strike is granted.
       Defendant Green’s Motion for Summary Judgment is granted.

       Dated this 12th day of May, 2014.


                                                                   ________________________
                                                                    Mary Miles Teachout
                                                                    Superior Court Judge




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