CHICAGO – U.S. District Judge Staci Yandle properly struck an affidavit of Effingham urologist Pernankel Nayak and granted judgment to Johnson & Johnson in a pelvic mesh suit, Seventh Circuit appellate judges ruled on June 15.
The Seventh Circuit found that in a deposition as treating physician for plaintiff Dianne Donaldson of Effingham, Nayak contradicted opinions he had made in an affidavit.
“We decline to speculate why Dr. Nayak signed under penalty of perjury a document with which he substantially disagreed,” Circuit Judge Ila Rovner wrote.
Rovner found affidavits that contradict depositions “can be so lacking in credibility as to be entitled to zero weight in summary judgment proceedings.”
She found Donaldson’s counsel Michael Meyer of Effingham wasn’t prepared to address the significant disparities at oral argument. She also found that without the affidavit, Donaldson couldn’t rule out other causes of her injuries or prove that her mesh didn’t perform as she reasonably expected.
Gynecologist Michael Schultheis implanted two mesh devices in Donaldson in 2010, to correct incontinence and a bulging of another organ into her vagina.
Donaldson visited Nayak for treatment of abdominal pain and other problems in 2014, and Mayo Clinic surgeons operated on her.
She sued Johnson & Johnson and its Ethicon subsidiary for $10 million in 2015 at the Southern District of Illinois, claiming erosion of her mesh caused the injuries that sent her to Mayo Clinic.
Meyer filed Nayak’s affidavit, stating the implant devices were defectively designed and unreasonably dangerous.
The affidavit stated the devices eroded into internal tissues. It also stated she didn’t use the devices abnormally and that there was no reasonable secondary cause of her injuries.
At his deposition he stated his opinions related to one device and not the other.
Nayak declined to give an opinion that the device was defectively designed.
He said he didn’t consider possible secondary causes for failure of the products. He agreed that the first surgery ended incontinence and repaired the bulge; he confirmed that the Mayo Clinic surgery could contribute to pain.
Johnson & Johnson moved to strike three paragraphs of the affidavit and Yandle struck it entirely.
She granted judgment, finding Donaldson failed to create issues of fact about secondary causes or reasonable expectations.
“Without the aid of expert testimony, the jury can only speculate as to what inferences to draw,” Yandle wrote.
She taxed costs of $12,320 against Donaldson.
Meyer appealed, claiming Yandle should have credited parts of the affidavit that were consistent with the deposition.
At oral argument he said Nayak gave a horrible deposition.
“But what rendered it horrible was that it conflicted with the declaration that counsel drafted for Dr. Nayak’s signature,” Rovner wrote.
She found this left Donaldson with a gaping hole in the evidence.
On secondary causes, Rovner found the record entirely one-sided.
She found Johnson & Johnson presented expert opinions regarding several possible causes and Donaldson didn’t negate any of them.
Attorney Charissa Walker of Cleveland led a defense team with six colleagues including Stefani Wittenauer of Bryan Cave in St. Louis.
Illinois Supreme Court Justices censured Meyer in 2004, finding he cashed a settlement check with no intention of having his client execute a release.