The plaintiff in a medical malpractice case engaged two experts, who were deposed in the course of discovery. The defendants filed a motion for summary judgment; the plaintiff submitted affidavits from the two experts in her opposition to the motion; and the defendants moved to strike the affidavits. The trial court granted the motion to strike and the motion for summary judgment because the affidavits included “information that is materially different from the deposition each affiant provided. There is no sufficient explanation for the change in testimony by either [expert], other than to meet the exigencies of litigation.” The Nebraska Supreme Court reversed. Woodward v. Saint Francis Medical Center, (Neb. 5/31/24, No. S-23-324).
The trial court had relied on a previous case, Momsen v. Nebraska Methodist Hospital (URL unavailable) (Neb. 1981), in which the supreme court
affirmed the striking of the defendant doctor’s testimony at trial, where that testimony was contrary to earlier deposition testimony. In so doing, we concluded that the change in testimony was made to meet the exigencies of the pending litigation.
But since that decision . . . we have been unwilling to extend that holding to situations involving the testimony of nonparty witnesses. In the instance of a nonparty witness, rather than striking that testimony, this court has held that any change in testimony is an issue of credibility for a fact finder to make. . . .
As we determined in [a previous] appeal following a grant of summary judgment, we decline the invitation to extend Momsen to apply to nonparty witness testimony. Accordingly, we reverse the district court’s granting of the defendants’ motion to strike [and the motion for summary judgment].
I find court’s distinction between parties and witnesses unpersuasive. If a discrepancy between an expert’s deposition testimony and a subsequent affidavit in opposition to summary judgment creates “an issue of credibility for a fact finder to make,” the same rationale clearly applies to a discrepancy between a party’s deposition testimony and subsequent trial testimony. When I was a practicing trial lawyer, I impeached parties (and experts) on the witness stand with their conflicting deposition testimony whenever the opportunity presented itself, and so did opposing counsel. I think Momsen was wrongly decided, and I suspect the Nebraska Supreme Court knows it, which is why it won’t apply Momsen in a summary judgment setting. For whatever reason, the court is unwilling to overrule Momsen until it has to. If the court is ever presented with a case on all fours with Momsen – i.e., a trial judge strikes a party’s trial testimony because it conflicts with their deposition testimony – I’m confident it will do the right thing.
