Liar Liar, Pants on Fire: Sham Issue of Fact Doctrine

The Plaintiff in the Fosamax lawsuit, In re Fosamax Products Liab. Litig., 11-4358-CV, 2013 WL 335967 (2d Cir. Jan. 30, 2013) probably thought she would easily survive summary judgment via her expert physician’s testimony.  However, her medical expert reversed himself and contradicted prior testimony from an earlier case in which he was a treater, thus creating a credibility issue for the jury. Unfortunately, the court didn’t but the “new” testimony and applied the “sham issue of fact doctrine” and disregarded it.

In this case, the Plaintiff took the drug Fosamax for a number of years and now alleges that it led to bone deterioration.  Plaintiff makes a failure to warn.  The prescriber testified early in the case as a fact witness.  His testimony revealed that when he began treating her for bone deterioration he thought that Plaintiff had stopped taking Fosamax.  However, at that time, another physician was still prescribing the drug to Plaintiff.  Defendant moved for summary judgment on the “warning claim.”  After all, how could an allegedly inadequate warning have caused Plaintiff’s injuries if the treating physician was not aware that she was on the drug?

Then things took an interesting turn. After Defendant moved for summary judgment, the prescriber was designated as Plaintiff’s expert physician.  Not surprisingly the doctor’s testimony changed once he was on the payroll.  During his expert deposition, the physician stated that he actually did know that Plaintiff was taking Fosamax when he was treating her for the bone injury.  Further, he testified that had Defendant warned him about the risks of bone degeneration, he would have recommended that Plaintiff stop taking Fosamax.

It’s interesting how a few bucks in your pocket can “refresh” your memory.   The court took note of this fact.  Accordingly, the court held that the doctor’s expert testimony was clearly contradictory to his initial testimony and could be disregarded under the sham issue of fact doctrine.  That doctrine prevents a party from defeating summary judgment by simply submitting an affidavit that contradicts the party’s own previous sworn testimony.  In this case, however, the court extended the doctrine to apply to testimony from experts.  The court held that expert testimony could be ignored “where the relevant contradictions between the first and second depositions are unequivocal and inescapable, unexplained, arouse of the motion for summary judgment was filed, and are central to the claim.”

So there you have it.  A common sense ruling and a very professional way of the court saying, “liar liar, pants on fire.”

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