Health Law Daily After sham affidavits stricken, claim dismissed as time-barred
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Wednesday, February 12, 2020

After sham affidavits stricken, claim dismissed as time-barred

By Jeffrey H. Brochin, J.D.

Under Virginia’s Sham Affidavit Rule, courts may disregard an affidavit that is inconsistent with and contradicts affiant’s prior sworn deposition testimony.

A federal district court in West Virginia has granted the motion for summary judgment filed by Ethicon, Inc. (Ethicon), the manufacturer of an abdominal hernia mesh and mesh sutures, in a case brought by a patient who was implanted with Ethicon’s mesh and sutures that allegedly caused him serious complications. After he was deceased, his mother substituted as administratrix of his estate. Both the medical records and her deposition testimony clearly established that the deceased’s claims accrued, and the statute of limitations began to run, no later than 2012. Therefore, her subsequent affidavits in which she contradicted her prior deposition testimony—presumably in order to avoid a dismissal under Virginia’s two-year statute of limitations—were found to be a sham affidavits and they were accordingly stricken from the record (Newhouse v. Ethicon, Inc., February 7, 2020, Goodwin, J.).

Allegations of infected mesh. The complaint alleged that the patient was implanted with Ethicon’s VICRYL Physiomesh™ Flexible Composite Mesh and VICRYL SUTURES during an abdominal surgery for a hernia in 2007 following a 1995 gunshot wound to his abdomen. The complaint further alleged that in 1995, Ethicon sold 3.6 million Vicryl dissolving sutures that were contaminated with infectious bacteria "during processing in a breakdown-prone sterilizer unit."

The patient allegedly suffered many post-surgery complications from the mesh and sutures including severe chronic persistent post-operative fistula, chronic pancreatitis with recurrent stones, hernia of the abdominal cavity, abdominal abscesses, chronic abdominal pain and excessive unexplained weight loss. He filed the instant lawsuit against Ethicon in May, 2017, and, after he died in November, 2018, his mother was substituted as administratrix of his estate. Among the motions before the court was Ethicon’s motion for summary judgment, which, for the reasons stated below, the court granted.

Original deposition testimony. In her deposition testimony, the deceased’s mother stated that her son’s health problems, which she attributed to the mesh and sutures, began by early 2009, when he developed frequent and recurring abscesses of the abdomen, leading to the formation of a fistula. She also stated that in 2009 they began receiving telephone and mail solicitations from attorneys involved in hernia mesh litigation. However, they declined to pursue litigation at that time. Between 2009 and 2011, doctors informed them that the abscesses were caused by a reaction to an infected Vicryl suture, but that mesh infection was a possible contributing factor. During a doctor’s visit on October 13, 2011, it was recommended that the patient return to the hospital to explore further treatment for suspected "complex mesh infection."

Contradictory affidavit. On December 6, 2019, Ethicon filed a Motion for Summary Judgment and accompanying Memorandum of Law asserting that the claims were time-barred under Virginia’s two-year statute of limitations. In response, on January 3, 2020, the deceased’s mother filed a Motion for Objection and to Strike the Motion for Summary Judgment which was accompanied by an affidavit attempting to overcome the statute of limitations argument by contradicting her deposition testimony that the deceased was experiencing complications following his 2007 surgery as early as 2009. Instead, she contended in her affidavit, for the first time, that he began experiencing complications from the 2007 surgery in 2016.

In another affidavit filed on February 6, 2020, she stated that the second affidavit revised her prior one, to include a statement that the deceased "was not suffering any serious complications from Defendants ETHICON well-known defective VICRYL polypropylene hernia mesh and suture products until 2016."

Sham affidavit rule. The court noted that it is well-settled that a party cannot create a triable issue in opposition to summary judgment simply by contradicting his or her deposition testimony with a subsequent affidavit. At the summary judgment stage, if an affidavit is inconsistent with the affiant’s prior deposition testimony, the court may disregard the affidavit.

The court found that both of the affidavits were sham affidavits that contradicted the prior sworn testimony, and accordingly, the court disregarded and struck the affidavits from the record. Therefore, the prior deposition testimony stood, and based on that, the court granted Ethicon’s motion for summary judgment as a matter of law due to Virginia’s 2-year statute of limitations running from the date of implant.

The case is No. 2:17-cv-02735.

Attorneys: Delva Newhouse, pro se. Kenneth Paul Conour (Butler Snow LLP) for Ethicon Inc., Ethicon Endo-Surgery Inc. and Johnson & Johnson Inc.

Companies: Ethicon Inc.; Ethicon Endo-Surgery Inc.; Johnson & Johnson Inc.

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