              IN THE SUPREME COURT OF IOWA
                              No. 17–0908

                         Filed March 12, 2020


SHARON K. SUSIE and LARRY D. SUSIE,

      Appellants,

vs.

FAMILY HEALTH CARE OF SIOUXLAND, P.L.C. d/b/a FAMILY
HEALTH CARE OF SIOUXLAND URGENT CARE and SARA HARTY,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



      Defendants seek further review of a court of appeals decision

reversing the district court’s grant of summary judgment. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
AFFIRMED.



      Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for

appellants.



      Kellen B. Bubach, Jack D. Hilmes, and Erik P. Bergeland, of Finley

Law Firm, P.C., Des Moines, for appellees.
                                     2

CHRISTENSEN, Chief Justice.

      The lead plaintiff in this case tragically lost an arm and toes due to

a rare, but extremely serious, disorder known as necrotizing fasciitis. We

must decide whether the district court was correct in granting defendants’

motion for summary judgment on plaintiffs’ medical malpractice claims.

On direct appeal, the court of appeals reversed the district court’s

judgment. Upon further review, we vacate the decision of the court of

appeals and affirm the district court’s judgment. Because the plaintiffs

failed to set forth specific facts showing a prima facie case of causation

and lost chance of survival, we affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      Sharon Susie fell in her living room, injuring her right arm. Her arm

was bruised and painful.     The condition of her arm did not improve.

Approximately one week later, on September 29, 2012, she went to the

urgent care clinic of Family Health Care of Siouxland and was treated by

Sara Harty, a physician’s assistant. Harty ordered an x-ray of Sharon’s

arm, which revealed “no fractures or dislocations” but there was “moderate

soft tissue swelling about the elbow joint dorsally.”     Harty diagnosed

Sharon with right proximal forearm pain, elbow pain, and a right elbow

contusion. A shot for pain and prescription pain killers were provided to

Sharon. Harty instructed Sharon to ice her arm and told her to follow up

with her doctor if she was not better in two days.

      The next day, Sharon’s adult son found her extremely ill. Sharon

was taken to Mercy Medical Center in Sioux City where she was diagnosed

with septic shock and kidney failure.    She was immediately placed on

antibiotics, but her condition continued to deteriorate.     The biopsy of

Sharon’s right arm showed she had necrotizing fasciitis, also known as a

flesh-eating disease.   To stop the progression of the life-threatening
                                     3

disease, doctors amputated Sharon’s right arm. As a result of medication

that directed blood flow to her vital organs, eight of Sharon’s toes were

amputated as well.

      Two years later, Sharon and her husband (Susies) filed a negligence

action against Family Health Care of Siouxland and Harty (defendants),

seeking damages for the amputation of her right arm and other related

injuries. The Susies alleged defendants were negligent because Sharon’s

condition was not properly diagnosed and treatment was not timely

commenced, requiring amputation of her right arm. Later, the Susies also

alleged defendants’ actions resulted in the lost chance to save Sharon’s

arm and toes from amputation. The Susies originally designated Dr. John

Crew as their expert witness, and he was deposed. However, Dr. Crew

died prior to trial. On April 11, 2017, the Susies designated Dr. Roger

Schechter to substitute for Dr. Crew and submitted a signed report

summarizing Dr. Schechter’s opinions pursuant to Iowa Rule of Civil

Procedure 1.508. The report stated, in part,

      Dr. Schechter will also opine to a reasonable degree of medical
      probability regarding the treatability of Sharon Susie’s
      infection at the point of time she presented to the urgent care
      clinic on September 29, 2012. He is also expected to testify
      that had the infection been diagnosed on the day of her visit
      to the clinic, and treatment initiated immediately, the spread
      of the infection, more likely than not, could have been avoided,
      the infection would not have become systemic; and the
      amputation of Sharon’s arm and toes would more likely than
      not have been avoided.

      Two weeks later, on April 25, 2017, Dr. Schechter was deposed.

Following Dr. Schechter’s deposition, defendants filed a motion for

summary judgment, arguing the Susies lacked any evidence on causation

and that Dr. Schechter could only provide speculation as to the effect of

antibiotic administration. The Susies resisted the motion, stating a prima

facie case on causation was made by considering all of the evidence,
                                      4

including Dr. Schechter’s 1.508 report, his deposition testimony, and the

supporting evidence from multiple medical providers. On May 8, a hearing

was held on the motion for summary judgment. The district court stated

on the record as follows:

             Okay.     It’s clear to me even -- and I know,
      Mr. Humphrey, you wanted to make sure I read all of your
      other physician stuff. I did that. I still believe and I find that
      there is no -- that you don’t have the necessary expert more
      likely than not causation evidence to get the claim to a jury.

             Now, Schechter, every time he was really forced or
      asked the major question, he said speculation, I don’t know
      what the outcome would have been, may have made a
      difference. I don’t care what’s in his 1.508 because when
      you’re asked under oath in a deposition, are these your final
      opinions, he’s stuck with those. And he didn’t give more likely
      than not in his deposition.

             Your plaintiff’s treating physicians basically said, listen,
      the earlier you get antibiotics, the better chance you have.
      What’s the other phrase? Time is tissue. Lamptey said it may
      well stop it from progressing. Rizk says, well, if you get
      antibiotics early, they usually work. Let’s see. Where’s the
      other one? Earlier the antibiotics, better likely the outcome
      for the patient. I think all your treaters said that.

            The problem is -- with that is they did not give an
      opinion in this case with these facts whether or not it would
      have made a difference. What it does normally doesn’t push
      you over the line.

      The district court granted defendants’ motion for summary

judgment. The Susies appealed. We transferred the case to the court of

appeals. The court of appeals reversed the judgment of the district court,

concluding the grant of summary judgment was improper. The court of

appeals looked “at all of the evidence presented,” and when “taken

together, indicate the probability or likelihood of a causal connection

between defendants’ failure to administer antibiotics on September 29,

2012, and the injury to Sharon.”        The defendants applied for further
                                     5

review, and we granted their application. We will discuss additional facts

as necessary.

      II. Standard of Review.

      We review the grant of summary judgment for correction of errors at

law. Konrardy v. Vincent Angerer Tr., Dated Mar. 27, 1998, 925 N.W.2d

620, 623 (Iowa 2019). Summary judgment is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
      that there is no genuine issue as to any material fact and that
      the moving party is entitled to judgment as a matter of law.

Iowa R. Civ. P. 1.981(3). The burden is on the moving party to demonstrate

the nonexistence of a material fact question. Banwart v. 50th St. Sports,

L.L.C., 910 N.W.2d 540, 545 (Iowa 2018). However, the nonmoving party

may not rely on mere allegations in the pleadings but must set forth

specific facts showing a genuine issue for trial. Id.; accord Iowa R. Civ.

P. 1.981(5). If the nonmoving party cannot generate a prima facie case in

the summary judgment record, the moving party is entitled to judgment

as a matter of law. See Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d

873, 875, 878 (Iowa 1996).

      We view the facts in the light most favorable to the nonmoving party.

Konrardy, 925 N.W.2d at 623. “But the proof in any case must be such

that the fact finder is not left to speculate about who the negligent culprit

is.” Walls v. Jacob N. Printing Co., 618 N.W.2d 282, 284 (Iowa 2000) (en

banc). Thus, “[s]peculation is not sufficient to generate a genuine issue of

fact.” Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005).

      III. Analysis.

      On further review, the defendants present two claims. First, they

argue the district court correctly held there was insufficient evidence of
                                     6

but-for causation. Second, the defendants maintain there was insufficient

evidence to support a claim of lost chance of survival.

      A. But-For Causation. Defendants contend there was insufficient

evidence of but-for causation. A prima facie case of medical negligence

requires plaintiff to establish the applicable standard of care, a violation

of that standard, and a causal relationship between the violation and the

injury. Eisenhauer ex rel. Conservatorship of T.D. v. Henry Cty. Health Ctr.,

935 N.W.2d 1, 9 (Iowa 2019). The central causation question for Susies’

claims is whether it was more likely than not that Sharon’s arm would

have been saved by administration of antibiotics on September 29, 2012.

Expert testimony is required to create a jury question on causation when

the causal connection “is not within the knowledge and experience of an

ordinary layperson.” Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 793

(Iowa 2009).    The parties agreed expert testimony was necessary to

establish causation in this case.

      Defendants point out Dr. Schechter’s testimony failed to establish

the causation element of Susies’ prima facie case. We agree with this

assertion.   Dr. Schechter’s testimony does not rise above the level of

speculation. To begin, it is unclear whether Dr. Schechter is qualified to

render a causation opinion.      He testified he is not an expert in the

treatment of necrotizing fasciitis and he is not a surgeon nor an infectious

disease specialist. Regardless, Dr. Schechter was unable to provide the

causal link between defendants’ alleged violation of the standard of care

and Sharon’s injuries:

             Q. Or are you here to say that Sharon Susie’s arm was
      cut off because of Sara Harty? A. I’m not here to say her arm
      was cut off because of Sara Harty. I’m here to say that she
      became ill and septic because she wasn’t given a thorough
      enough evaluation and followup.
                                         7
            Q. Isn’t the bottom line, you don’t know what would
      have happened to Sharon Susie had she had CBC testing, had
      she returned to the clinic in 20 hours or less than 24 hours,
      had a comprehensive physical exam been documented? You
      don’t know that the outcome would not have been exactly the
      same. True? A. I don’t know, but the faster you get to care
      when you’re sick, the better off you are.

            ....

              Q. Well, if she had a firestorm brewing when she
      walked into the urgent care clinic, as Dr. Crew said, Dr. Crew
      telling us that she has the beginnings of necrotizing soft tissue
      disease then and there, do you think -- do you really think
      Sara Harty can stop that? A. I think Sara Harty could have
      gotten through instructing this patient who was clearly ill
      throughout the night -- if she had been instructed that should
      she have all these untoward symptoms of any kind -- and it’s
      -- it’s generic. It’s not specific necrotizing fasciitis. It’s generic
      to physical deterioration and infection regardless.

             If she were given the appropriate instructions and her
      husband had the instruction, she -- which would state in this
      situation “Go to the ER,” she would have gotten to the ER
      sooner. And it’s speculative, but clearly time is of the essence
      when you’re getting progressively more ill.

      Dr. Schechter was noncommittal about whether antibiotics would

have been effective if administered when Harty first saw Sharon:

             Q. At the same page, our discussion continues where
      [Dr. Crew] agreed to the possibility that because it would take
      36 hours for the antibiotics to be effective, Sharon Susie would
      still go to Mercy in the condition that she was because the
      antibiotics had not had time to work. That’s Page 48 of his
      deposition.

            Do you remember that discussion? A. Yes.

           Q. You       agree     with       that   possibility;   correct?
      A. Possibility.

            Q. He said in that same page range: “It is speculation
      on whether the antibiotics would,” quote, “ ‘turndown,’ ” close
      quote, “the infection had they been given by Sara Harty.” Do
      you agree? A. Speculation, yes.
                                      8

      Dr. Schechter admitted, given the sparseness of the documentation,

it was unclear whether Sharon should have been given antibiotics

immediately:

            Q. So what you’re saying from the record and the lack
      of the CBC, you don’t think she necessarily had enough
      information to make that next step in prescribing antibiotics?
      A. Well, from the record and the sparseness of the
      documentation, I don’t have enough information either.

            Q. Okay.     So that’s -- we’re saying the same thing.
      A. Right.

            Q. Stated another way, you don’t have enough
      information to say whether she should have given antibiotics
      or not in the circumstances; is that right? A. Correct.

      He even conceded the effect of antibiotics on Sharon’s outcome was

“speculative”:

            Q. What I’m getting to, we are speculating on the effect
      of antibiotics had they been given to Sharon Susie on the
      afternoon of the 29th of September 2012; correct? A. Yes.

When asked the ultimate but-for causation question by Susie’s own

counsel, Dr. Schechter provided this cryptic response:

            Q. Do you agree with that -- that the earlier you get the
      antibiotics on board and the more you allow the body to
      mobilize in someone’s immune system in response to this
      developing infection that you may well more likely than not
      have saved her arm?

            ....

             A. To -- I would say it’s a significant possibility ranging
      as high as probability that early intervention with antibiotics
      could have either at least reduced the progression of the
      infection or slowed its progression and potentially have
      averted as much tissue loss as she experienced.

      The opinions by Dr. Schechter provide no guidance for the jury on

how or if Sharon’s outcome would have been different if antibiotics were

administered one day earlier. While an expert is not required to express
                                      9

an opinion with absolute certainty, Ranes v. Adams Labs., Inc., 778

N.W.2d 677, 688 (Iowa 2010), Dr. Schechter provides only speculative and

confusing testimony on causation. The jury cannot be left to speculate

about the but-for causal link. See Hlubek, 701 N.W.2d at 96.

         The Susies rely on Dr. Schechter’s 1.508 report for the contention

that a causal link exists between defendants’ failure to administer

antibiotics on September 29, 2012, and Sharon’s injury.         The report

indicated Dr. Schechter would testify that had Sharon’s infection been

treated immediately on the day of her visit to the clinic, “the amputation

of Sharon’s arm and toes would more likely than not been avoided.”

However, in his deposition, Dr. Schechter contradicted his 1.508 report by

testifying that the causal connection was speculative. In Estate of Gray ex

rel. Gray v. Baldi, we adopted the “contradictory affidavit rule.”     880

N.W.2d 451, 463 (Iowa 2016). Under this rule, we will reject an affidavit

that directly contradicts prior testimony unless the affiant provides a

reasonable explanation for the apparent contradiction. Id. at 462–63. To

invoke the contradictory affidavit rule, “the inconsistency between a

party’s deposition testimony and subsequent affidavit must be clear and

unambiguous.” Id. at 464 (quoting Van Asdale v. Int’l Game Tech., 577

F.3d 989, 998 (9th Cir. 2009)).

         The circumstances presented here are somewhat different from

Baldi.     Assuming Dr. Schechter’s signed 1.508 report is part of the

summary judgment record, the sequence is reversed—the deposition

testimony came after the 1.508 report. But the timing of the report is

inconsequential. See Glass v. Lahood, 786 F. Supp. 2d 189, 216 (D.D.C.),

aff’d, No. 11–5144, 2011 WL 6759550, at *1 (D.C. Cir. Dec. 8, 2011) (per

curiam). There is “no principle that cabins sham affidavits to a particular

sequence.” In re CitX Corp., 448 F.3d 672, 679 (3d Cir. 2006). The essence
                                      10

of this rule is that there is no genuine issue of fact because the deposition

testimony precludes consideration of contradictory affidavits. See Baldi,

880 N.W.2d at 463–64. Accordingly, Dr. Schechter’s expert report, which

he contradicted at his deposition, is insufficient to generate a genuine

issue of fact.

      The defendants also claim the testimony of Susies’ medical providers

is insufficient to generate a causal fact issue. “[T]he ‘probability’ of causal

connection necessary to generate a jury question need not come solely

from one witness.” Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739,

747 (Iowa 1977). Susies presented supporting testimony from Dr. Daniel

Lamptey, an infectious disease specialist; Dr. William Rizk, a general

surgeon; and Dr. Ravi Vemuri, an infectious disease specialist. Yet, the

record testimony of the medical providers is not relevant to the causal link.

      The earlier-is-better testimony is insufficient to create a genuine

issue of material fact. According to Dr. Lamptey, “the sooner you can see

a patient with an infectious condition and start the antibiotics, the better

the likelihood you can have some impact on the progression of this disease

into something more serious.” Dr. Rizk made a similar point, agreeing that

“time equals tissue; meaning the longer it’s allowed to progress, the more

tissue you’re going to have to remove to save the patient’s life” when

dealing with necrotizing fasciitis. Dr. Vemuri also agreed that “generally

speaking the earlier an infection is diagnosed and the earlier an

appropriate antibiotic is prescribed, the better the likely outcome for the

patient.” Not one witness opined that the immediate administration of

antibiotics on September 29, 2012, would have more likely than not

avoided the injury to Sharon.

      Susies failed to establish a prima facie case of causation. There is

only speculative testimony in the record from which a jury could infer it
                                     11

was more likely than not that Sharon’s arm would have been saved by

administration of antibiotics on September 29, 2012.

      B. Lost Chance of Survival. The lost-chance-of-survival doctrine

is a compensable event where “a personal representative may recover

damages for a lost chance of survival as an alternative to a traditional

wrongful-death recovery.” Mead v. Adrian, 670 N.W.2d 174, 178 (Iowa

2003).   Expert testimony is required to show the “defendant probably

caused a reduction in [the plaintiff’s] chance of survival.” DeBurkarte v.

Louvar, 393 N.W.2d 131, 137–38 (Iowa 1986) (en banc).               We have

recognized in medical malpractice cases that the amount of damages for a

lost chance of survival is “the percent of lost chance attributed to the

intervening act of negligence.”   Mead, 670 N.W.2d at 178–79 (quoting

Wendland v. Sparks, 574 N.W.2d 327, 331 (Iowa 1998)).

      Susies’ resistance to defendants’ motion for summary judgment

asserts Sharon lost her best chance to save her arm and toes due to

Harty’s failure to administer antibiotics. Defendants argue Susies cannot

generate a prima facie case of lost chance of survival.        We agree with

defendants’ position.   No expert witness has provided testimony that

Sharon lost any chance to save her arm or toes.

      Further, no witness has testified that it was even possible for

Sharon’s arm to be saved by the administration of antibiotics on

September 29, 2012. Susies’ brief points to the testimony of Dr. Schechter

and Jeffrey Nicholson for the position that failure to administer antibiotics

resulted in tissue damage to Sharon. However, the “time is tissue” and

“sooner is better” expressions are not lost-chance theories.

      The question central to Susies’ lost-chance claim is what chance of

keeping her arm and toes did Sharon lose as a result of a one-day delay in

the administration of antibiotics. No witness opined what the chance of
                                     12

Sharon keeping her arm and toes was, if any, had antibiotics been

administered when she visited Harty.

      Therefore, Susies failed to establish a prima facie case of lost chance

on the summary judgment record.        There is no expert testimony from

which a jury could decide what the reduction in Susies’ chance of survival

was. The jury cannot be left to speculate about the lost chance of survival.

See Walls, 618 N.W.2d at 284.

      IV. Conclusion.

      Because Susies failed to set forth specific facts showing a prima facie

case of causation and lost chance of survival, we affirm the district court’s

grant of summary judgment.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

      All justices concur except Appel, J., who dissents, and McDonald

and Oxley, JJ., who take no part.
                                      13

                  #17–0908, Susie v. Family Health Care of Siouxland, P.L.C.

APPEL, Justice (dissenting).

      The majority decides this case on the basis of the contradictory

affidavit rule.    The rule generally stands for the proposition that an

affidavit submitted by an interested party in opposition to a motion for

summary judgment may be disregarded if it materially contradicts the

affiant’s prior deposition testimony.      Before cutting and pasting the

contradictory affidavit rule into this case, however, exploration of the

development of the rule, the nuances in the rule, and the nature of its

application in caselaw will illuminate the choices we face in deciding the

issue presented in this case. A larger review of the substance of the rule

compels me to respectfully dissent.

      I. Overview of Contradictory Affidavit Rule.

      A. Introduction: Chainsaw or Scalpel. The contradictory affidavit

rule has been controversial. It is not based upon any rule of civil procedure

and is contrary to the traditional approach in the courts to summary

judgment applied over decades of jurisprudence. It has not been explicitly

embraced by the United States Supreme Court. It has, however, gained a

foothold in the lower federal courts and, to a somewhat lesser extent, in

state courts.

      In determining its scope and in considering whether to adopt the

rule, there are competing considerations. On the one hand, a self-serving

affidavit manufactured by an interested party to defeat summary judgment

after potential flaws in the case have been exposed may be so egregious

that the magic affidavit should not be allowed to generate a genuine issue

of material fact. Yet on the other hand, determinations of credibility of

witnesses is a core jury function at the very heart of the constitutional

right to a jury trial. Because of the very important jury trial implications,
                                     14

the contradictory affidavit rule is generally sparingly and narrowly applied.

For the most part, the rule is highly qualified, subject to a series of

limitations, and used as a scalpel, not a chainsaw.

      B. Developments in Federal Courts. The Seventh Amendment to

the United States Constitution guarantees the right to a jury trial. The

traditional approach has been that when a party contradicts prior

testimony that gives rise to a matter of credibility, it is for the jury to

evaluate and determine. Such an approach gave breathing room to the

fundamental right to a jury trial.

      In the minds of some, however, pragmatic considerations toward the

end of the twentieth century arose that tended to press the constitutional

barriers. Judicial innovators feared that if last-minute, sham affidavits

raised jury questions, the utility of the rules providing for summary

judgment would be undermined.

      The contradictory affidavit rule was discovered relatively recently in

Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.

1969). In this case, the president of the corporate plaintiff stated in his

deposition that he could provide no particularized evidence of the

defendant’s fraudulent intent. Id. at 576–77. The president then filed an

affidavit when the defendant moved for summary judgment, claiming that

the defendant’s president told him that the defendant corporation never

had any intention of performing on the contract. Id. at 577.

      The Perma Research court found that

      [i]f a party who has been examined at length on deposition
      could raise an issue of fact simply by submitting an affidavit
      contradicting his own prior testimony, this would greatly
      diminish the utility of summary judgment as a procedure for
      screening out sham issues of fact.

Id. at 578.
                                     15

      Similarly, in Radobenko v. Automated Equipment Corp., 520 F.2d

540 (9th Cir. 1975), the United States Court of Appeals for the Ninth

Circuit considered

      the question of whether contradictory testimony of a plaintiff
      alone can be used by him to defeat a defendant’s summary
      judgment motion where the only issue of fact results from the
      necessity of choosing between the plaintiff’s two conflicting
      versions.

Id. at 543–44. Citing Perma Research, the Radobenko court in a few lines

determined that the issues of fact were created by Radobenko and were

not genuine. Id. at 544. In order to exclude the testimony, however, the

court embarked on a two-part test: first, does a contradiction exist, and if

so, second, whether the contradiction is justified. Id.; see also Estate of

Gray ex rel. Gray v. Baldi, 880 N.W.2d 451, 462–64 (Iowa 2016). As a

result, the Radobenko court determined that the district court properly

granted summary judgment in favor of the defendant. Radobenko, 520

N.W.2d at 544.

      After Perma Research and Radobenko, many federal courts adopted

some version of the contradictory affidavit rule. See, e.g., Darnell v. Target

Stores, 16 F.3d 174, 176–77 (7th Cir. 1994), overruled on other grounds by
Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013); Martin v.

Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988); Van T. Junkins

& Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657–59 (11th Cir. 1984).

The spread of the rule did not happen without a good fight. See Van T.

Junkins & Assocs., Inc., 736 F.2d at 660 (Johnson, J., dissenting)

(criticizing the doctrine as unduly invading the role of the jury); Gross v.

S. Ry., 414 F.2d 292, 297 (5th Cir. 1969) (noting it is “well settled that in

considering a motion for summary judgment, the court has no duty or

function to try or decide factual issues”); Olin v. Disneyland Int’l, 832 F.
                                      16

Supp. 1342, 1344 (D. Ariz. 1993) (observing that trial judges should not

be required “to choose among competing or conflicting inferences or to

pass on the credibility of witnesses with differing versions of material

facts”). As the contradictory affidavit rule began to take hold, however,

some cases seemed to imply that offsetting affidavits could never be

considered in summary judgment motions. See, e.g., Jones v. Gen. Motors

Corp., 939 F.2d 380, 385 (6th Cir. 1991) (“[I]t is well settled that a plaintiff

may not create a factual issue for the purpose of defeating a motion for

summary judgment by filing an affidavit contradicting a statement the

plaintiff made in a prior deposition.”); see also Collin J. Cox, Note,

Reconsidering the Sham Affidavit Doctrine, 50 Duke L.J. 261, 269–70

(2000) [hereinafter Cox, Sham Affidavit] (exploring the tension between the

Perma Research approach and caselaw barring offsetting affidavits in

summary judgment motions).         Most of the evolving caselaw, however,

mindful of the powerful traditional notion that credibility issues are

ordinarily for the jury, tended to emphasize its limited and narrow

character to dampen the bite of the contradictory affidavit rule.

      A significant number of cases offer generalized admonitions about

the use of the contradictory affidavit rule.      For instance, many cases

emphasize that the rule should be applied “with great caution.” Bank of

Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir.

1996); see also Taylor v. ScottPolar Corp., 995 F. Supp. 1072, 1075 n.2 (D.

Ariz. 1998).   This general directive that the contradictory affidavit rule

should be cautiously applied has been translated into discrete limitations.

      For example, it is often stated in stark terms that in order to invoke

the contradictory affidavit rule, the affidavit offered must “directly” or

“flatly” conflict with the prior deposition testimony. Two influential federal

cases embracing this limitation are Kennett-Murray Corp. v. Bone, 622 F.2d
                                     17

887 (5th Cir. 1980), and Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.

1986).

      In Kennett-Murray, a plaintiff employer brought a claim against a

former employee seeking recovery on a promissory note and an

employment contract. 622 F.2d at 889. The Fifth Circuit held that a

party’s affidavit cannot be disregarded “merely because it conflicts to some

degree with an earlier deposition.” Id. at 893. The Fifth Circuit observed

that “a genuine issue can exist by virtue of a party’s affidavit even if it

conflicts with earlier testimony in the party’s deposition.” Id. The Fifth

Circuit declared that the contradictory affidavit rule should be applied only

where the affidavit is “clearly” or “blatantly” inconsistent. Id.

      The Eleventh Circuit took a similar approach to the contradictory

affidavit rule in Tippens. In Tippens, the court noted that “[a] definite

distinction must be made between discrepancies which create transparent

shams and discrepancies which create an issue of credibility or go to the

weight of the evidence.”    805 F.2d at 953.      According to Tippens, the

contradictory affidavit rule applies only in “the type of irreconcilable

conflict that amounts to a transparent sham which should be

disregarded.” Id. at 955; see Lowie v. Raymark Indus., 676 F. Supp. 1214,

1217 (S.D. Ga. 1987) (citing Tippens in making the distinction between

statements that are merely inconsistent with those that are contradictory).

As noted in Fustok v. Conticommodity Servs., Inc., 577 F. Supp. 852, 859

n.30 (S.D.N.Y. 1984), “instances in which the assertions in an affidavit are

so blatantly contradictory of those in a prior deposition that the affidavit

must be disregarded” are “rare.”

         Even where the statements are blatantly contradictory, the

contradictory affidavit rule is not automatically applied.      A number of

courts have held that a plausible explanation for a contradiction is
                                     18

sufficient to avoid the application of the contradictory affidavit rule. See,

e.g., Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d

Cir.), amended, 169 F.3d 782 (2d Cir. 1998); Jack v. Trans World Airlines,

Inc., 854 F. Supp. 654, 660 (N.D. Cal. 1994). And “[o]bviously, a plausible

showing would require considerably less than would a probable one.” State

v. Vargas, 704 P.2d 125, 129 (Or. Ct. App. 1985).

      There is also a question of whether the contradictory affidavit rule

should be limited only to affidavits of interested parties. For example, in

Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009), the Ninth Circuit

declared that the rule does not apply to third parties. Similarly, in Lane

v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986), the Eleventh

Circuit stated, “[W]e would be unable, absent great trepidation, to affirm a

similar finding with respect to a disinterested witness’ contradictory

affidavit.” But in Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 521 (7th

Cir. 1988), the court noted that while the contradictory affidavit rule

generally applied only to parties, there was no reason why the rule should

not be extended to a party’s experts.

      Finally, there is a question of timing. The contradictory affidavit rule

is usually employed where an affidavit is produced at the last minute to

avoid summary judgment after the witness has made contradictory

statements in a prior deposition.     The circumstances are described as

suspicious when a contradictory affidavit magically appears at the last

minute after an extensive deposition has been taken of the party in order

to defeat summary judgment. See, e.g., Orta-Castro v. Merck, Sharp &

Dohme Química P.R., Inc., 447 F.3d 105, 110 (1st Cir. 2006); Torres v. E.I.

Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000); Colantuoni v.

Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994).
                                     19

      The question is whether the reverse is true, where a deposition

contradicts a prior statement made in a case. Where the deposition has

been taken at the request of the opposing party, the statements made at

the deposition seem less likely to be a sham than when a last-minute

statement is prepared by the party seeking to avoid summary judgment.

      But, as pointed out by the majority, there are two federal courts that

have adopted this approach: The D.C. Circuit in Glass v. Lahood, 786 F.

Supp. 2d 189, 215–16 (D.D.C.), aff’d, No. 11-5144, 2011 WL 6759550

(D.C. Cir. Dec. 8, 2011), and the Third Circuit in In re CitX Corp., Inc., 448

F.3d 672, 679–80 (3d Cir. 2006). Yet, while the contradictory affidavit rule

may be applicable in this setting, where the deposition has been taken at

the request of an opposing party, the most recent statements do not quite

have the same suspicious timing.

      C. State Court Approaches.          While the trend in federal courts

embrace some form of the contradictory affidavit rule, there is no

requirement that state courts follow a similar path. Indeed, many state

courts, including Iowa, have declined to follow Ashcroft v. Iqbal, 556 U.S.

662, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 127 S. Ct. 1955 (2007). See Hawkeye Foodservice Distribution, Inc.

v. Iowa Educators Corp., 812 N.W.2d 600, 608 (Iowa 2012) (declining to

follow Twombly and Iqbal under Iowa law); Zachary D. Clopton, Procedural

Retrenchment and the States, 106 Calif. L. Rev. 411, 425 (2018) (noting

Iowa, along with eighteen other states, have expressly rejected plausibility

pleading). While we may look to federal precedent for its persuasive power,

we are free to chart our own path.

      While the majority of state courts have endorsed some version of the

contradictory affidavit rule, the state courts have generally been somewhat

less enthusiastic about adoption of the contradictory affidavit rule. See,
                                     20

e.g., Randy Wilson, The Sham Affidavit Doctrine in Texas, 66 Tex. B. J. 962,

964–65 (Dec. 2003) (outlining the Texas Supreme Court standard and

adoption of the sham affidavit doctrine in federal court and elsewhere). A

number of states adopted their version of the rule over strong dissents that

generally emphasize the role of juries in determining credibility of

witnesses. See, e.g., Gaboury v. Ir. Rd. Grace Brethren, Inc., 446 N.E.2d

1310, 1316–17 (Ind. 1983) (Hunter, J., dissenting); Yahnke v. Carson, 613

N.W.2d 102, 109 (Wis. 2000) (Bablitch, J., dissenting).

      Several states have rejected the rule outright in favor of the

traditional view that credibility determinations are for the jury, not the

judge. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789, 790 (Mass.

App. Ct. 1979) (“[I]t is sufficient that the plaintiff’s later affidavit, if

believed, indicated that the contrary is true.”); Delzer v. United Bank of

Bismark, 484 N.W.2d 502, 508 (N.D. 1992) (requiring consideration of all

affidavits, interrogatories, etc. in the light most favorable to the opponent

of summary judgment, but noting that there are certainly cases where

contradictions in a party’s discovery testimony will result in summary

judgment because they are so extreme or far-fetched as to be

unbelievable); Pierce v. Riggs, 540 A.2d 655, 656–57 (Vt. 1987) (finding the

rationale behind the contradictory affidavit rule unpersuasive). The case

against application of the contradictory affidavit rule was also well made

in Pittman v. Atlantic Realty Co., 754 A.2d 1030 (Md. 2000), which

emphasized that the contradictory affidavit rule

      shift[s] the credibility determination from the trier of fact at
      trial, where the trier of fact would have the benefit of observing
      the witness’s demeanor on cross-examination, to the trial
      court on summary judgment, where the trial court would be
      limited to a paper record.

Id. at 1045.
                                     21

      Like the federal cases, however, many state court cases that

ultimately embraced the contradictory affidavit rule have emphasized its

narrowness. For example, in Henderson-Rubio v. May Dep’t Stores Co.,

632 P.2d 1289, 1295 n.6 (Or. Ct. App. 1981), an Oregon appellate court

applied the contradictory affidavit rule where the two statements were

clearly   inconsistent   and   no   attempt     was     made   to    explain   the

inconsistency. Similarly, in Shelcusky v. Garjulio, 797 A.2d 138, 149 (N.J.

2002), the New Jersey Supreme Court noted that “[c]ritical to [the

contradictory affidavit rule’s] appropriate use are its limitations.”          The

Utah Supreme Court similarly emphasized that the rule must be

administered with care. Webster v. Sill, 675 P.2d 1170, 1173 (Utah 1983).

      A number of state courts have stated that the rule applies only where

the affidavit “directly contradicts” or “clearly conflicts” with the prior

statement. See, e.g., Shelcusky, 797 A.2d at 149 (finding an affidavit must

“patently”   and   “sharply”   contradict     earlier   deposition    testimony);

Henderson-Rubio, 632 P.2d at 1295 n.6 (limiting the application of the rule

only to cases “where the two statements are clearly inconsistent and no

attempt is made to explain the inconsistency”); Kiser v. Caudill, 599 S.E.2d

826, 832 (W. Va. 2004) (observing that the rule prevents direct

contradiction).

      The state courts have often recognized that even where there is a

direct contradiction, it is not within the province of the trial court to

disbelieve it for purposes of summary judgment. See, e.g., Taal v. Union

Pac. R.R., 809 P.2d 104, 107 (Or. Ct. App. 1991) (“There is no reason why

contradictory evidence from the same party or witness is less capable than

inconsistent evidence from separate sources to create a disputed fact

question.”). Even in jurisdictions embracing a version of the contradictory

affidavit rule, all that is required is an explanation in which the alleged
                                     22

contradiction is plausible, and the burden of plausibility, of course, is

considerably less than that of probability. See, e.g., Taal, 809 P.2d at 107;

Gaw v. Dep’t of Transp., 798 P.2d 1130, 1141 (Utah Ct. App. 1990).

      D. Iowa Approach.       The common law right to a jury trial took

centuries to develop.    Our founders declared the right to a jury trial

“inviolate” in article I, section 9 of the Iowa Constitution. Iowa Const. art.

I, § 9. The right to a jury trial is a bedrock of a remarkable and venerated

democratic system that vests key governmental powers in everyday

citizens, and not in government bureaucrats or professional judges with

their implicit biases and limited perspectives.

      Our system of justice vests the jury with the function of evaluating

a witness’s credibility. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992).

As this court has stated, “Assessment of a witness’s credibility is uniquely

within a lay jury’s common understanding.” Id. Traditionally, only in

circumstances where “[t]he testimony of a witness [is] so impossible and

absurd and self-contradictory . . . should [it] be deemed a nullity by the

court.” Graham v. Chicago & N.W. Ry., 143 Iowa 604, 615, 119 N.W. 708,

711, supplemented on reh’g, 143 Iowa 604, 122 N.W. 573 (1909). This

powerful and important constitutional background must be considered in

determining the appropriate scope of any contradictory affidavit rule.

      In Baldi, 880 N.W.2d 451, we applied the contradictory affidavit rule.

In doing so, however, we emphasized that “the inconsistency between a

party’s deposition testimony and subsequent affidavit must be clear and

unambiguous.” Id. at 464 (quoting Van Asdale v. Int’l Game Tech., 577

F.3d 989, 998 (9th Cir. 2009)). We have not had occasion, however, to

develop the contradictory affidavit rule in depth.

      E. Discussion of Proper Scope of Rule.               From the above

discussion of the caselaw, I think it plain that even where it is embraced,
                                       23

the contradictory affidavit rule is a very narrow doctrine that should be

applied only in the most compelling circumstances. If not so cabined, a

robust version of the contradictory affidavit rule would invade a party’s

right to a jury trial under the Federal and Iowa Constitutions.           The

contradictory affidavit rule is a doctrine of last resort and should not be

applied except in the most compelling of circumstances.

      I also note that “even where the doctrine is recognized, it has often

defied easy application.” Michael D. Moberly, Applying the Sham Affidavit

Doctrine in Arizona, 38 Ariz. St. L.J. 995, 998–99 (2006). In support of this

proposition, Moberly cites a number of authorities. Id. at 999 n.24; see

Dudo v. Schaffer, 91 F.R.D. 128, 131–33 (E.D. Pa. 1981) (“[T]here can be

no absolute rule as to when it is proper for the [trial] court to exclude from

consideration    an   affidavit   which     contradicts   earlier   deposition

testimony.”); Shelcusky, 797 A.2d at 147 (“Uniform standards on the

application of the sham affidavit doctrine cannot be found in the case

law.”); Cox, Sham Affidavit, 50 Duke L.J. at 272 (“[S]tate courts have

struggled to determine the best method of handling offsetting affidavits

that contradict prior deposition testimony.”). A narrowly defined rule thus

has the benefit of providing more predictability, whilst a broader rule will

foster judicial splatter of caselaw.

      III. Application of Contradictory Affidavit Rule to This Case.

      I now proceed to apply the test. As indicated in the majority opinion,

in the Susies’ Iowa Rule of Civil Procedure 1.508 disclosure concerning

their expert witness, Dr. Roger Schechter, it stated, in part,

      Dr. Schechter will also opine to a reasonable degree of medical
      probability regarding the treatability of Sharon Susie’s
      infection at the point of time she presented to the urgent care
      clinic on September 29, 2012. He is also expected to testify
      that had the infection been diagnosed on the day of her visit
      to the clinic, and treatment initiated immediately, the spread
                                       24
      of the infection, more likely than not, could have been avoided,
      the infection would not have become systemic; and the
      amputation of Sharon’s arm and toes would more likely than
      not have been avoided.

      Then, at his subsequent deposition, Dr. Schechter made a number

of statements that are claimed to be contradictory to his statement in the

rule 1.508 disclosure. Specifically,

             Q. Or are you here to say that Sharon Susie’s arm was
      cut off because of Sara Harty? A. I’m not here to say her arm
      was cut off because of Sara Harty. I’m here to say that she
      became ill and septic because she wasn’t given a thorough
      enough evaluation or followup.

The majority finds this passage sufficient to trigger the contradictory

affidavit rule, but there is nothing in this sequence that directly, clearly,

and unambiguously contradicts Dr. Schechter’s report. Dr. Schechter did

not want to personalize the issue, but he plainly said that Susie “became

ill and septic” because of the lack of a thorough evaluation at urgent care.

      The next few lines of testimony also do not directly, clearly, and

unambiguously contradict Dr. Schechter’s report.           Specifically, the

additional testimony states,

            Q. Isn’t the bottom line, you don’t know what would
      have happened to Sharon Susie had she had CBC testing, had
      she returned to the clinic in 20 hours or less than 24 hours,
      had a comprehensive physical exam been documented? You
      don’t know the outcome would not have been exactly the
      same. True? A. I don’t know, but the faster you get to care
      when you’re sick, the better off you are.

      The majority makes much of this language, but it does not

contradict Dr. Schechter’s Iowa Rule of Civil Procedure 1.508 disclosure.

Of course he does not know what the result would have been had she been

given a thorough examination at the clinic. Knowledge implies certainty.

A medical expert who believes a thorough examination at the urgent care

clinic more likely than not would have avoided the subsequent amputation
                                     25

does not “know” that this result necessarily would have occurred. There

is always a chance of a bad outcome, even where it is more likely than not

that, had a breach of the standard of care not occurred, a good outcome

would result. In fact, an expert who believes an outcome is ninety-nine

percent certain if a procedure is followed does not “know” the

counterfactual result.

      In a number of other passages, Dr. Schechter agreed that the

outcome––if antibiotics had been timely administered––was “speculative.”

But, again, the concept of speculation is not a binary concept. The burden

on the plaintiff in a medical malpractice case is not to eliminate all

speculation and replace it with a standard of certainty, for that would be

an impossible burden.        Further, the mere mention of the word

“speculation” is not a “gotcha moment” entitling the defendant in a medical

malpractice case to summary judgment on causation. Instead, the degree

of speculation must be so great that an expert cannot say, within a

reasonable degree of medical certainly, that, more likely than not, the

outcome would have been different.

      Finally we have the last admittedly rather odd testimony from

Dr. Schechter:

            Q: Do you agree with that -- that the earlier you get the
      antibiotics on board and the more you allow the body to
      mobilize in someone’s immune system in response to this
      developing infection that you may well more likely than not
      have saved her arm?

            ....

             A: To -- I would say it’s a significant possibility ranging
      as high as probability that early intervention with antibiotics
      could have either at least reduced the progression of the
      infection or slowed its progression and potentially have
      averted as much tissue loss as she experienced.
                                     26

      I think all of us can agree that this answer is difficult to penetrate.

What, exactly, does it mean?           And, is it directly, clearly, and

unambiguously contradictory to Dr. Schechter’s rule 1.508 disclosure? I

do not think so. If the follow up question had been posed, asking whether

he believed the arm more likely than not would have been saved, he may

well have answered “yes.”

      For the above reasons, I do not believe the contradictory affidavit

rule applies in this case. In order to protect the function of the jury, cases

applying the contradictory affidavit doctrine should be as scarce as hen’s

teeth. Further, the rule’s vitality is at least diminished where the witness

involved is a nonparty expert.       While it is certainly possible that a

reasonable jury might find Dr. Schechter’s testimony less than credible in

light of his deposition testimony, that does not justify granting summary

judgment. As a result, I would reverse the ruling of the district court and

remand the matter for further proceedings.
