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Yahnke v. Carson6/30/2000
Submitted on Briefs: Oral Argument: May 25, 2000
Source of APPEAL COURT: Circuit Court COUNTY: Rock JUDGE: Richard T. Werner
JUSTICES: Concurred: Dissented: BABLITCH, J., dissents (opinion filed). ABRAHAMSON, C.J., and BRADLEY, J., join dissent. Not Participating:
.
This case raises the question of whether Wisconsin should adopt the federal "sham affidavit" rule as part of its summary judgment procedure. The issue arises because the plaintiffs in this medical malpractice action responded to the defendants' summary judgment motion by submitting an expert witness affidavit that contradicted the expert's deposition testimony. The circuit court applied the federal rule, which generally prohibits affidavits that contradict prior deposition testimony from creating issues of fact for trial, and granted summary judgment dismissing the action.
. The court of appeals reversed, deferring to this court on whether to adopt the federal "sham affidavit" rule and concluding that the affidavit here was sufficient to create a genuine issue of material fact under current summary judgment procedure. We accepted review and now adopt the federal "sham affidavit" rule as an effective tool for circuit courts to use in evaluating the existence of genuine factual issues on motions for summary judgment. Therefore, we reverse.
. The relevant facts are as follows. In July 1993, Cathy Yahnke underwent carpal tunnel surgery performed by Dr. Larry V. Carson. Shortly after the surgery, Yahnke developed a disfiguring condition in her right hand and arm known as "Volkman's Contracture," a forced contracture of the forearm, wrist and hand inflection of the fingers. Yahnke and her family sued Carson, Dr. Jovan Djokovic, the anesthesiologist, and Mercy Hospital for malpractice.
. During discovery, the Yahnkes named two medical experts, Dr. Safwan Jaradeh, a neurologist, and Dr. Hani Matloub, a surgeon, both of whom had treated Yahnke after the surgery. After some delay, both were made available for deposition. In their depositions, neither expert was able to state that any of the defendants had breached the standard of care owed to Yahnke. Jaradeh, in fact, admitted that he was not qualified to render an opinion on Carson's work (the circuit court noted that Jaradeh is a neurologist, not a surgeon). Matloub, the surgical expert, was asked numerous questions about the cause of Yahnke's condition and was unable to link it to the surgery performed by Carson. At the end of his deposition, Matloub was asked a summarization question: "Given your testimony, is it accurate to say that you do not have any criticism of the standard of care utilized by Dr. Carson in his care and treatment of the patient?" Matloub replied, "That's correct."
. Carson, Djokovic and Mercy Hospital each moved for summary judgment, arguing that the Yahnkes' expert witnesses failed to establish negligence in connection with Yahnke's surgery. The Yahnkes responded to the motion by first asking leave of the court to name new experts. The circuit court denied the motion.
. The Yahnkes then changed counsel and produced affidavits from Jaradeh and Matloub that stated that Yahnke's contracture resulted from nerve injury she sustained during the surgery; that the most likely cause of this injury was inadequate blood flow to her arm; and that the lack of blood flow was caused by excessive pressure on her upper arm most likely caused by a tourniquet or perhaps a tightly inflated blood pressure cuff. Matloub's affidavit stated that Volkman's Contracture would not normally occur if the surgeon performed his work within the ordinary standard of care.
. The
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