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Barbara Pettiford v. Rajendra K. Aggarwal

October 7, 2011

BARBARA PETTIFORD PLAINTIFF-APPELLANT
v.
RAJENDRA K. AGGARWAL
DEFENDANT-APPELLEE



(Civil Appeal from (Common Pleas Court) Trial Court Case No. 05-CV-4831

The opinion of the court was delivered by: Hall, J.

Cite as Pettiford v. Aggarwal ,

OPINION

{¶1} Barbara Pettiford appeals from the trial court's entry of summary judgment against her on her medical-malpractice complaint against appellee, Rajendra K. Aggarwal.

{¶2} Pettiford advances three assignments of error on appeal. First, she contends the trial court erred in finding that her medical expert's affidavit did not create a genuine issue of material fact for trial. Second, she claims the trial court erred in relying on defense counsel's "representations and interpretations." Third, she argues that the trial court erred in "mixing and matching" her medical expert's deposition testimony, thereby taking the testimony out of context.

{¶3} The record reflects that Pettiford underwent a chest x-ray and an MRI in 1999. Aggarwal allegedly misinterpreted the x-ray as normal. In 2002, a tumor was discovered on Pettiford's lung. As a result, she filed a medical-malpractice action, alleging that Aggarwal should have detected the tumor in 1999. In the trial court proceedings, Aggarwal's counsel deposed Pettiford's medical expert, Dr. Trent Sickles. During his deposition, Sickles opined that Aggarwal had deviated from the acceptable standard of care by not detecting a lung mass on Pettiford's 1999 x-ray. Sickles offered no opinion about causation or the effect of a three-year delay in diagnosis on Pettiford's "treatment or course." Following the deposition, Aggarwal filed a renewed motion for summary judgment, alleging that Pettiford would be unable to provide expert testimony on causation. Pettiford opposed the motion with an affidavit from Sickles. Therein, Sickles averred that Pettiford had suffered various adverse consequences as a direct and proximate result of Aggarwal's negligence. Aggarwal moved to strike the affidavit, arguing that it improperly contradicted Sickles's prior deposition testimony without explanation. The trial court entered summary judgment for Aggarwal without ruling on the motion to strike or explaining its decision.

{¶4} On appeal, this court reversed in a divided opinion. The lead opinion found unspecified contradictions between Sickles's deposition testimony and his later affidavit. The lead opinion nevertheless found the rule of Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, inapplicable because Sickles was not a party.*fn1 Therefore, the lead opinion held that Sickles's affidavit was sufficient to create a genuine issue of material fact for trial. A concurring judge agreed that Byrd did not apply but, in any event, saw no unambiguous inconsistency between Sickles's deposition testimony and subsequent affidavit. A dissenting judge concluded that Byrd did apply and that Sickles's affidavit completely contradicted his deposition testimony.

{¶5} On further appeal, the Ohio Supreme Court reversed this court's decision. In Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, the majority held that "[a]n affidavit of a retained, nonparty expert contradicting the former deposition testimony of that expert and submitted in opposition to a pending motion for summary judgment does not create a genuine issue of material fact to prevent summary judgment unless the expert sufficiently explains the reason for the contradiction." Id. at the syllabus. After finding that the rule of Byrd applied in the present case, the Ohio Supreme Court added: "The determination of whether Dr. Sickles's affidavit contradicted his deposition without a sufficient explanation for the alleged contradiction is a factual determination that is properly made by the trier of fact. The trial court did not expound on its reasoning for granting Dr. Aggarwal's motion for summary judgment and never ruled on the motion to strike Dr. Sickles's affidavit, and the appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd's applicability, the appropriate course is to remand this matter to the trial court to apply the analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in that analysis." Id. at 420.

{¶6} On remand, the trial court determined that Sickles's affidavit was admissible but that it did contradict his prior deposition testimony. That being so, the trial court held that the affidavit failed to create a genuine issue of material fact and entered summary judgment in Aggarwal's favor. This appeal followed.

{¶7} In her first assignment of error, Pettiford contends the trial court erred in finding that Sickles's affidavit did not create a genuine issue of material fact. She claims the affidavit merely supplemented Sickles's deposition testimony and did not contradict it. Pettiford reasons that Sickles opined about Aggarwal's breach of the standard of care in his deposition while offering no opinion on the issue of causation. Thereafter, in his affidavit, Sickles provided additional information, opining for the first time on the causation issue.

{¶8} Having reviewed Sickles's deposition testimony and his affidavit, we see no error in the trial court's finding of an unexplained conflict. During his November 14, 2007 deposition, Sickles opined that Aggarwal had breached the applicable standard of care by failing to recognize a lung mass on Pettiford's 1999 x-ray. Sickles stated that he did not intend to offer any opinions about the effect of a three-year delay in discovering the mass on Pettiford's "treatment or course." Sickles also stated that he did not intend to offer any opinions about "causation." (Sickles depo. at 38-39, 48). Later in his deposition, Sickles addressed Pettiford's diagnosis with a lung tumor in 2002. He testified: "* * * [A]fter I looked at the records I pretty much determined that I couldn't testify or give any opinions about causation, so I haven't looked at that since a year-and-a-half ago." (Id. at 56-57). Finally, Sickles agreed to let defense counsel know if he modified his opinions or formed any additional opinions after his deposition. (Id. at 63).

{¶9} Thereafter, in his summary judgment affidavit, Sickles averred:

{¶10} "1. My name is Trent Sickles. I am a licensed physician in the state of Ohio and I have given sworn testimony regarding the negligence of Dr. Aggarwal by Barbara Pettiford.

{ΒΆ11} "2. I further agree to testify as an expert for the Plaintiff, Barbara Pettiford regarding damages she has suffered as a direct and ...


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