Kiser v. Caudill
In Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d 826 (2004), the Court addressed attempts to utilize supplemental affidavits contradicting prior testimony to defeat a motion for summary judgment and held as follows at syllabus point four:
To defeat summary judgment, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained.
To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine:
(1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness;
(2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition;
(3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.In Kiser v. Caudill, the trial court prohibited the plaintiff's medical expert from testifying on the standard of care required by a neurosurgeon.
The Court affirmed the trial court's decision on that issue.
In doing so, the Court relied upon the following facts:
During his deposition the expert stated that he did not plan to testify about the standard of care required of a neurosurgeon in this case. He also stated that he was merely an expert in referring patients to neurosurgeons, but he did not hold himself out to be an expert in the field of neurosurgery. . ..
In addition, at trial, during cross-examination by the defendant regarding his qualifications, the expert acknowledged that he was not qualified or trained in the field of neurosurgery and was not familiar with the manner in which neurosurgical procedures are performed. Given the expert's own admissions about his limited knowledge of neurosurgery, we do not find that the circuit court erred by limiting his testimony at trial to the field of neurology. (Kiser, 210 W. Va. at 196, 557 S.E.2d at 250.)
The expert in Kiser had testified during his deposition that "he only knew the standard of care with regard to tethered spinal cords at the hospital where he was working in 1973, which was the Children's Hospital in Columbus, Ohio." 215 W. Va. at 408, 599 S.E.2d at 831.
Upon repeated questioning, the expert maintained that he did not possess knowledge of the standard of care at other places during that period of time. Id.
Following a motion for summary judgement, however, the expert tendered an affidavit that "completely contradicted his deposition testimony without any explanation." Id.