*1 Cathy Yahnke, Yahnke, R. Bruce E. Melissa YAHNKE, Plaintiffs-Appellants, Yahnke, Jr.,
and Bruce Indemnity Company, Plaintiff-Co- The Connecticut
Appellant, v.
Larry Djokovic, CARSON, M.D., M.D., V. Jovan L. Physicians Company Wisconsin, Inc., Insurance Compensation Fund,
Patients Defendants- Respondents-Petitioners, Develop Mercy Hospital Wisconsin Janesville, Company, Foundation, Inc., ment Ohic Insurance Defendant-Respondent.
Supreme Court
argument May
June
No. 99-0056. Oral
2000. Decided
For the there was a brief Oliver, Close, Worden, Thomas E. Greenwald and Win- Greenwald, Rockford, Illinois, kler & and oral argument by Thomas E. Greenwald.
¶ 1. SYKES, DIANE S. J. This case raises the question adopt of whether Wisconsin should the fed- part summary eral "sham affidavit" rule as of its judgment procedure. The issue arises because the plaintiffs malpractice responded in this medical action to the defendants' motion sub- mitting expert witness affidavit that contradicted expert's deposition testimony. The circuit court applied generally prohibits rule, the federal which affi- prior deposition testimony davits that contradict creating from granted summary trial, issues fact for judgment dismissing the action. appeals deferring reversed, 2. The court of
this court on whether to the federal "sham affida- concluding vit" rule and the affidavit here was sufficient create a issue of material fact summary judgment procedure. under current We *4 accepted review and now the federal "sham affi- davit" rule as effective tool for circuit courts to use in evaluating the existence of factual issues on summary judgment. motions Therefore, for we reverse. July ¶3. In The relevant facts are as follows. carpal surgery Cathy tunnel Yahnke underwent Larry Shortly by performed after the Dr. V. Carson. developed disfiguring surgery, in a condition Yahnke right arm as "Volkman's Contrac- her hand and known forearm, of the wrist and ture," a forced contracture family fingers. and her inflection of the Yahnke hand Djokovic, anesthesiologist, Carson, sued Dr. Jovan Mercy Hospital malpractice. for and During discovery,
¶ named 4. the Yahnkes two neurologist, experts, a Jaradeh, medical Dr. Safwan surgeon, Matloub, Dr. Hard a both of whom had surgery. delay, treated Yahnke after the After some deposition. depo- for In their both were made available any expert to state that of the sitions, neither was able standard of care owed to defendants had breached the Jaradeh, fact, Yahnke. in admitted that he was not (the qualified opinion to render an on Carson's work neurologist, that Jaradeh is a not circuit court noted surgeon). surgical expert, Matloub, was asked questions the cause ofYahnke's condi- numerous about surgery performed to link it to the tion and was unable by deposition, his Matloub was Carson. At the end of your question: testi- asked a summarization "Given any mony, say you is it accurate to that do not have by Dr. Carson criticism of the standard of care utilized patient?" Matloub care and treatment of the his replied, "That's correct." Djokovic Mercy Hospital each Carson, summary judgment, arguing
moved for negli- expert failed to establish Yahnkes' witnesses surgery. gence The Yahnke's in connection with asking responded to the motion first leave Yahnkes experts. The circuit court to name new of the court denied the motion. *5 changed pro- Yahnkes then 6. The counsel
duced affidavits from Jaradeh and Matloub that stated injury that Yahnke's contracture resulted from nerve during surgery; likely she the that the most sustained injury inadequate cause of this flow to her was blood by arm; and that the lack of blood flow was caused likely pressure upper her arm excessive most caused by perhaps tightly tourniquet pres- or a inflated blood sure cuff. Matloub's affidavit stated that Volkman's normally surgeon Contracture not occur if the would performed ordinary his work within the standard of care. obviously
¶ 7. The affidavits contradicted the deposition testimony. earlier attempted Matloub's explain the contradiction: testimony gave my
The I at deposition held on May upon my considering 1998. . .was based only quoted testimony quoted of Dr. Jaradeh or of certain identified and not portions reports EMG any my other Cathy records or examinations of Yahnke, my Yahnke, Cathy my treatment of discus- sions with Dr. Brad Grunert and Dr. Jaradeh or other I acquired regarding information which have Cathy I opinions expressed Yahnke. The have in the preceding portions of this affidavit are based upon much more information than the limited infor- mation which I was asked to consider and which I by was asked to assume attorneys was correct asking me those questions. County,
¶ 8. The Circuit Court for Rock the Hon- granted summary judgment Werner, Richard T. orable (the Djokovic anesthesiologist) Mercy in favor of Hospital, plaintiffs' experts quali- because the were not express opinions fied to about the standard of care for anesthesiologists any and had not mentioned even problems provided hospital's care employees. granted The circuit court also Carson's 1) noting opinion motion, that: Jaradeh had no about surgeon's unqualified the testify standard of care and was 2) any event,
about it and Matloub's affidavit directly deposition testimony. contradicted his As to *6 contradictory expla- affidavit, the court found the "unconvincing nation for the and, contradiction to be importantly, supported by more not the record." The explained: court testimony.
This affidavit contradicts his deposition explains by stating He this that his at opinions dep- strictly osition were limited to a the Mercy review of Hospital simply records. This not true. A is surgery review of Dr. Matloub's reveals that he deposition Mercy records, reviewed the Hospital operative sub- results, sequent Mayo analysis EMG and Clinic of Mrs. Yahnke's muscle tissue. He had reviewed Mrs. Yahnke's medical chart and records at Froedtert Hospital. Memorial Lutheran He consulted with Dr. Grunert a concerning co-authored letter March, Mrs. Yahnke in He spoke also with Dr. short, Jaradeh In about Mrs. Yahnke. before expressing opinion his at his deposition, Dr. had Matloub a considerable amount of reviewed medical information Yahnke and concerning Mrs. her condition.
Referring to federal case on the law effect of affidavits testimony, deposition that conflict with the court con- cluded that Matloub's affidavit was insufficient genuine trial, create a factual issue for and entered summary judgment dismissing entirety. in its case appealed,
¶ 9. The Yahnkes and the court of appeals part, concluding in that the reversed Matloub genuine affidavit created a factual issue about whether required Carson had surgeon.1 the standard of care breached prohibiting The court noted the federal rule summary parties creating dispute from a factual by submitting judgment conflicts with testimony, court earlier but deferred to this reject accepted rule or for Wisconsin. We review.
¶ 10.
an order for
We review
using
methodology
novo,
as the circuit
de
the same
Nierengarten
Servs.,
court.
v. Lutheran Soc.
219 Wis.
(1998). Summary judg
686, 694,
2d
N.W.2d
appropriate
pleadings, depositions,
ment is
when "the
interrogatories,
file,
answers to
admissions on
together
any,
affidavits,
if
is
show that there
any
genuine
no
moving
issue as to
material fact and that the
judgment
party is entitled to a
as a matter of
802.08(2)(1995-96).2
§
law." Wis. Stat.
The well-estab
judgment
purpose
summary
procedure
lished
is to
disputes
determine the existence of
factual
*7
nothing
try."
order to "avoid trials where there is
to
Wisconsin,
Hamilton,
Rollins Burdick Hunter
Inc. v.
of
(1981);
460, 470,
101
2dWis.
1 appeals' unpublished The court of decision affirmed the summary judgment Djokovic circuit court's order of in favor of Mercy Hospital, rejection ipsa as loqui- well as its of the res doctrine, tur and those issues are not before us for review. noted, Unless otherwise all further references to the Wis consin Statutes are to the 1995-96 version.
¶
stands,
11.
Wisconsin
as it
an
Under
law
now
response
summary judg-
in
affidavit submitted
to
to
of
ment motion can suffice
create
issue
fact for
flatly
summary judgment
if
trial and defeat
even
it
deposition testimony.
contradicts the witness's earlier
testimony
prior
gen-
An affidavit that conflicts
is
erally thought
credibility question,
to create a
and a
credibility
circuit court does not decide issues of
summary judgment. Pomplun
Corp.,
v. Rockwell Int'l
(Ct. App.
303, 306-07,
203 Wis. 2d
¶ 12. The court of has on this issue. Wilson, 533, 539-41, In Wolski v. 174 Wis. 2d (Ct. 1993), App. appeals the court of held N.W.2d plaintiff in that an submitted contra- deposition testimony earlier was diction of his precluding fact, sufficient to create a material issue of summary judgment. specifically The concluded court any changes procedure legislature either from the or this court. Id. must come at 541. Memorial However, in Helland v. Froedert *8 Hospital., 318 751, 229 2d 601 N.W.2d
Lutheran Wis. (Ct. 1999), essentially appeals applied App. the court of
265 expressly the federal "sham affidavit" rule without wrongful discharge adopting Helland, case, In it. plaintiff testified in her that she had particular employee from her received a manual employment employer her which established that was employer contractual. Id. at 760. The at-will not summary judgment for of the then moved basis plaintiffs deposition testimony, manual, and the plaintiff applicable employees. Id. law responded to at-will The by submitting to the motion an affidavit claiming not, fact, that she had in received the manual. appeals Id. The court of concluded that the contradic- tory genuine to create a affidavit was insufficient issue fact. Id. of material presented opportunity
¶ 14. We were
with the
County,
question in
address this
Morris v. Juneau
219
(1998),
543,
Wis. 2d
¶ 15. Most federal circuits have adopted precluding the "sham affidavit" rule the crea- summary judgment by tion of issues of fact on directly the submission of an affidavit that contradicts deposition testimony. earlier See Colantuoni v. Alfred (1st Calcagni 1994); Sons, 44 Inc., 1, & F.3d 5 Cir. Singer Co., 572, Perma Research & Dev. Co. v. 410 F.2d (2d 1969); Pharm., 578 Cir. Martin v. Merrell Inc., Dow (3d 1988); 703, 851 F.2d Cir. Barwick v. Celotex (4th 1984); Corp., 736 F.2d Cir. Erec- S.W.S. (5th tors, Inc., Inc. v. F.3d Infax, 495-96 Cir. *9 1996); Reid Sears, Co., 453, v. Roebuck & 790 F.2d 460 (6th 1986); Babrocky Co., Cir. v. Jewel Food 773 F.2d (7th 1985); 857, Tires, 861-62 Cir. Inc. v. Camfield (8th Corp., 1361, Michelin Tire 719 F.2d 1364-65 Cir. 1983); Equip. Corp., Radobenko v. Automated 520 F.2d (9th 1975); 540, Nimmo, 544 Cir. Franks v. 796 F.2d (10th 1986); 1230, 1237-38 Cir. & Van T. Junkins Assoc., Indus., Inc., 656, Inc. v. U.S. 736 F.2d 657-59 (11th 1984); Sinskey Ophthalmics, Cir. v. Pharmacia (Fed. 1992). Inc., 494, 982 F.2d Cir. The rule is part proposition testimony given in based on the depositions, speak in which witnesses for them subject give selves, to the and take of examination and opportunity the cross-examination, for is more trust worthy testimony by affidavit, than which is almost always by prepared attorneys. Russell v. Acme-Evans (7th 1995). Co., 51 F.3d Cir. very
¶ 16. The rule also in the is rooted mission of summary judgment procedure: the question
When confronted of whether a his issue party should be allowed create own of contradicting prior deposi- fact an affidavit his testimony, tion Appeals the Court for Second genuine Circuit held that no issue of fact was raised. Co., Perma & Development Singer Research Co. v. (2d 1969). 410 F. 2d Cir. Therein the Court noted:
"[i]f a has examined at party who been length could raise an issue of by submitting fact an affidavit con- simply tradicting prior testimony, his own this utility of sum- greatly would diminish for mary judgment procedure as a of fact." 410 F. screening out sham issues 2d at 578. sep- is to very object
The are issues from those that arate real and only may so that the former pretended, formal or of trial. subject moving party to the burden although Thus, 2d at 544. it is called Radobenko, 520 F. rule, an affidavit that is disre- the "sham" affidavit *10 deposition garded prior it contradicts because testimony necessarily it "sham" the sense that is not improper purposes. Rather, or offered for is fraudulent contradictory recognizes affidavits tend to the rule genuine, sham, create rather than issues.
¶
The federal rule has also been extended
remarkably
non-party
In
expert
similar to
affidavits.
a case
involving
one,
this
witness affidavit that con-
expert's deposition testimony, the United
tradicted the
Appeals for the Seventh Circuit stated:
States Court of
apply
can think of no reason..
.not to
this rule to
We
testimony
affida-
present
involving
case
and
expert
purpose
vit of the
sole
witness. The
plaintiffs
summary judgment
motions —"to weed out
denials,
claims,
specious
unfounded
sham
defenses,"
prevents
party
served
a rule that
—is
credibility by allowing
issues of
one of
creating
from
testimony.
its
to contradict his own prior
witnesses
Adelman-Tremblay
Cos.,
Inc.,
v. Jewel
859 F.2d
(7th
1988)(citations omitted);
Cir.
see also Rios v.
(10th
1995).
Bigler,
1543, 1550-51
67 F.3d
Cir.
¶
however,
absolute,
rule,
18. The federal
is not
subject
important exceptions. If
and is
to certain
explanation
witness can establish a reasonable
for the
contradiction
his or her affidavit and his or
between
ambiguous
her
the affidavit clarifies
—that
confusing deposition testimony,
example,
or
for
or that
newly
the witness's later statements are based on
dis
conflicting
may
covered evidence—then the
affidavit
be
summary judgment equation.
considered in the
Adel
man-Tremblay,
Id.
Franks, 796 F.2d at
proce
19. The federal and state rules of civil
governing
dure
motions for
are
virtually identical. See Judicial Council Committee
(West 1994);
Note, 1974,
§
Wis. Stat. Ann. 802.08
Fed.
*11
56(c);
Transportation
R. Civ. P.
see also
Ins. Co. v.
Hunzinger
Co.,
Constr.
179 Wis. 2d 281, 291, (Ct. App. 1993);
N.W.2d 136
Fortier v. Flambeau Plas
(Ct. App.
Co.,
tics
639, 664, 476
164 Wis. 2d
N.W.2d 1991).
summary judgment procedure
The function of
"[WJhere
federal and state courts is the same.
a Wis
consin rule of Civil Procedure is based on a Federal
Rule of
Procedure,
Civil
decisions of the federal courts,
they
pattern
to the extent
show a
construction,
of
are
persuasive authority." Neylan
considered
Vorwald,
v.
(1985).
124 Wis. 2d
99,
¶ 23. we the federal "sham summary judg- rule for use in affidavit" Wisconsin's procedure. apply Further, ment we it here to conclude plaintiffs' expert that, because the witness affidavit directly testimony expert's deposition contradicted the adequate explanation, prop- without the circuit court *13 summary judgment erly granted motion for Carson's dismissing the case. appeals
By of the court of decision the Court.—The is reversed. (dissenting). I BABLITCH,
¶ A. J. 24. WILLIAM adoption affi- the so-called "sham that the conclude respectfully I therefore rule is unwarranted. davit" dissent. past
¶ occasions have stated on several 25. We litigated statutory provision has as been that no other frequently summary judg § 802.08, the as Wis. Stat. Fire Ins. v. United States statute. Kraemer Bros. ment (1979) (citing 565, 857 2d 278 N.W.2d Co., 89 Wis. Surges, Leszczynski 534, 537, 141 2d N.W.2d v. Wis. (1966)). Although frequent experience sum 261 mary judgment motion, we it into a familiar
has turned
remedy.
v.
drastic
Nelson
that it is a
must remember
552, 555,
¶ the court on 26. The is well established. motion for procedure Adding is rule to this the sham affidavit unnecessary. and unwise puts it the court 27. The rule is unwise because choosing position weighing the evidence
into the
competing
inferences, a task here-
reasonable
between
summary judgment. Pomplun
prohibited
v.
tofore
Corp.,
303, 306-07, 552
203 Wis. 2d
Rockwell Int'l
(Ct.
1996);
Doylestown
App.
Fire
Fischer v.
N.W.2d 632
Dep't,
199 Wis. 2d
2d
87-88,
Wis.
¶ 28. This distortion of the division of labor judge jury by adopting between the "sham affida- unnecessary. Summary judgment vit" rule is is a procedural litigant seeking tool to a opponent's available to flush out the fatal defect in an case. It is not the only procedural tool in the box and should not be viewed in isolation from other statutes and rules. For example, any if decides, a court time, at that affidavits *14 presented against summary judg- for or a motion for judge may ment party faith, were made in bad order the pay who submitted the affidavits to to the other party including attorney the costs, fees, which the fil- ing party of the affidavits caused the other to incur. 802.08(5). § Wis. Stat.
¶ 29.
In addition,
if the
may
impeached
denied,
motion is
a witness
be
at trial
prior
inconsistent
statements. Wis. Stat.
908.01(4)(a)l.
may
§
judgment
A defendant
move for a
plaintiffs
as a matter of
at
law the close ofthe
evidence.
§805.14(3).
attorney
papers
Wis. Stat.
An
who files
any improper purpose may
with the court for
face sanc-
§
tions under
And,
Wis. Stat. 802.05.
as the bar is well
significant
aware, there is
bite
a to determination that
frivolously.
a suit has been continued
See Jandrt v.
Foods, Inc.,
Jerome
227 Wis. 2d
N.W.2d ¶ 30. I conclude that the "sham affidavit" rule nothing summary judgment process. adds to our Even nega- its name, affidavit," unfortunate "sham reflects tively upon result, the work of the I bench bar. As join majority's cannot decision to this rule. Chief Justice to state that I authorized am Justice ANN ABRAHAMSON SHIRLEY S. join dissent. in this BRADLEY WALSH