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
I would have thought the answer was Yes – and not just because I’m in the expert referral business. But I’ve just learned that, in point of fact, the answer is a resounding No. In Laccetti v. Ellis, (No. 22-P-466, Mass. App. 3/20/23), the court cited cases from seven states and the U.S. Virgin Islands to that effect and probably could have cited more. Only Delaware is (possibly) an exception.
In Anderson v. The Raymond Corporation (7th Cir., No.
The case is Clanton v. United States of America (No. 20-2059, 7th Cir., 12/17/2021) and once again, the opinion’s opening paragraph summarizes it better than any of my several attempts:
This case is must reading for any trial lawyer (plaintiff or defense) who litigates product liability cases that rely on sophisticated expert testimony. In a workmanlike 35-page opinion (I did say the case was complex), the Eighth Circuit reversed the trial court’s exclusion of the plaintiffs’ medical and engineering experts and its resulting grant of summary judgment to the defendant. In re: Bair Hugger Forced Air Warming Devices Products Liability Litigation – Amador v.
Your response to that title is “Tell me something I don’t know,” right? This is black-letter law! Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles. Fortunately, appellate courts (usually) set things right.
