Tuesday, November 20, 2012

Summary Judgment, Sham Affidavits and Ex-Parte Treater Interviews

            Today’s case has a lot of little gems.  But, it is a short work week, so we’ll try to keep our post short as well.  After all, we have pies to bake, turkeys to stuff and miles to travel.  Just thinking about it (well, not the traveling part) makes our mouths water and has us thinking about which of our pants are the loosest.  Is there any other American holiday that is celebrated so uniformly – turkey, stuffing, mashed potatoes, cranberries, pumpkin pie?  You just have to say the word Thanksgiving and Norman Rockwell’s classic portrayal comes to mind.  It’s the same meal every year, but every year we anticipate the feast with the same joy and the same disregard for diet.  We just can’t get enough.

            That’s how Novartis must feel about the Aredia/Zometa litigation – they just can’t get enough summary judgments.  Yes, they’ve racked up another one (we are told the count is north of 40 summary judgments to date).  This time in the District of Maryland.  Zimmerman v. Novartis Pharm. Corp., 2012 U.S. Dist. LEXIS 163865 (D. Md. Nov. 15, 2012).  

In Zimmerman, plaintiff alleged that treatment with Aredia and Zometa caused osteonecrosis of the jaw (“ONJ”) which was triggered by a tooth extraction.  Id. at *5-6.  During motions in limine, plaintiff was forced to abandon her original proximate cause theory (that a “drug holiday”—a period of abstention from Aredia— before the tooth extraction would have prevented the injury) when her experts admitted there was no scientific support for that theory.  Id. at *8-9.    She adopted two new ones, both based on ways that a tooth extraction could have been avoided.  Id. at *9-10.  The court, however, found plaintiff’s support for these new theories “largely speculative” and undermined by the uncontroverted newly-obtained declarations from two of plaintiff’s treating dental providers establishing that the tooth extraction could not have been avoided in either of the two ways posited by plaintiff.  Id. at *10-11.  Thus, because the tooth extraction could not have been avoided, plaintiff has no evidence that an alleged inadequate warning caused the injury and therefore she “cannot establish the causation element of [her] failure-to-warn claim.”  Id. at *8. 

While the failure to warn claim was easily dismissed by the court, there are two other aspects of the decision we believe warrant mention.  First, plaintiff attempted to defeat summary judgment by submitting (post-hearing) a new affidavit from her expert in which he stated that a root canal would have been the preferable alternative to plaintiff’s tooth extraction.  Id. at *12-13.  However, that declaration directly contradicted the expert’s prior deposition testimony in which he opined “that there was no alternative to extraction, and that the tooth could not be saved.”  Id. at *13.  Because of the flat contradiction, the court disregarded the affidavit as a sham: 
Under the sham affidavit doctrine, a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.

Id.  (quotation marks and citations omitted).  As good as that is, the court didn’t stop there.  The opinion goes on to note that plaintiff’s expert’s affidavit would not have sufficed to defeat summary judgment in any event because it was the treating doctor, not the expert, who made the decision to extract the tooth in question, and therefore, plaintiff’s expert’s opinion on that decision was irrelevant.  Id. at *14.   Placing emphasis on treaters’ opinions -- developed in the course of treating a real human being while that person’s health was on the line – generally inures to the benefit of the defense, so we like this too.

            Our second noteworthy point is a bit buried in the discussion of plaintiff’s motion for additional discovery.  Plaintiff sought to depose her treaters on the bases for their opinions in their new affidavits.  Id. at *15-16.  Unlike plaintiff’s sham affidavit, the treater declarations were allowed because they did not contradict prior testimony and were obtained in response to plaintiff’s new proximate cause theories.  Id. at *17 & n.4.  And those treater affidavits were the final blow to plaintiff’s claims because they establish that
(1) there was no alternative treatment to the immediate extraction of [plaintiff’s] tooth in June 2001; and (2) even if [plaintiff’s treater] had known in June 2001 of an association between Aredia/Zometa and ONJ, he still would have extracted [plaintiff’s] tooth.

Id. at *16.  Dream testimony for defendants.  But our real interest is in how defendant got those affidavits – they were allowed to talk to plaintiff’s treaters:
If Plaintiff wanted to question Dr. Mennitt about the opinions expressed in his affidavit, then she should have contacted him and secured a declaration or affidavit, just as Defendant did. Plaintiff and Defendant have equal access to Dr. Mennitt. Defendant was able to acquire an affidavit from the doctor to support its renewed motion for summary judgment; there is no reason why Plaintiff could not have done the same. 

Id. at *20 (emphasis added).  Hooray Maryland!  Yes, we are staunch supporters of the right of all parties to have equal access to and to be able to conduct informal interviews of treating physicians.  For just this reason.  Defendant, faced with a new theory by plaintiffs, was able to ask plaintiff’s own treaters if the theory had any basis in fact – it didn’t.  Plaintiff’s counsel could have asked the treaters the same questions and gotten the same answers (we hope) – they didn’t.  The playing field was level – plaintiff just didn’t take advantage of it.  Allowing both sides access to treaters is also almost always a time and money saver because, like here, formal discovery isn’t necessary. 

            Good decision.  Good result.  Obtained through good lawyering.  Congratulations to the team at Hollingsworth LLP for another win and thanks to Joe Hollingsworth for bringing it to our attention.   

4 comments:

Ron Miller said...

Do we have any idea why ex parte contact was allowed in this case? I don't think we know the facts. There is no law set for in this case on this point, is there?
So I think celebrating Maryland as a state where drug companies can just walk up to doctors and trounce on a patient's HIPAA and privacy rights - as giddy as this idea may be for you - might be lacking in foundation

Bexis said...

Don't know anything about the facts, but I went to my 50-state survey post on this subject and found:

Informal defense interviews with treating physicians are just fine in the Old Line State. Butler-Tulio v. Scroggins, 774 A.2d 1209, 1224-25 (Md. Spec. App.), cert. denied, 783 A.2d 221 (Md. 2001).

So my guess is that informal interviews are routinely allowed in Maryland.

Randall Layman said...

Ron Miller ... informal interview of witnesses is not ex parte which It is also used more to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.

Randall Layman said...

Ron Miller,

Informal interviews of witnesses are not "ex parte" ... which is also used more to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.