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An Expert Affidavit Based on Material Factual Information that is Inconsistent with Plaintiff’s Prior Sworn Statement is Insufficient to Avoid Summary Judgment for the Defendants

February 4, 2015

Smith v. Lakeview Center, Inc., 2015 WL 7432214 (Fla. 1st Cir. Feb. 4, 2015); aff’d, Case No. 1D15-1058 (Fla. 1st DCA Sept. 18, 2015) (unpublished), reh’g denied (Nov. 2, 2015); petition for discretionary review dismissed, Case No. SC15-2241 (Fla. Dec. 4, 2015).


This case is a twist on an old rule, that a party may not avoid summary judgment by submitting an affidavit that conflicts with its own prior testimony. In this case, the trial court ruled that an expert opinion based on medical history that was inconsistent with the Plaintiff’s own prior sworn testimony was insufficient to create a question of material fact to avoid summary judgment.


The Plaintiff, in this case, filed suit against her medical providers, claiming that they negligently prescribed a medication that caused her a particular gastrointestinal disorder. In a deposition, the Plaintiff specified her maladies, admitting that she had experienced other gastrointestinal issues throughout her life and was being treated with medication by other providers for other maladies. 

The medical providers moved for summary judgment, attaching affidavits from medical experts opining the medication they prescribed did not cause the Plaintiff’s gastrointestinal order. The experts stated it was more likely that the medications Plaintiff was taking for her other maladies were causing her alleged problems.

Plaintiff filed an affidavit from a medical expert who opined that the medical providers were negligent and that negligence caused Plaintiff’s maladies. However, his affidavit was based in part on his assumption that Plaintiff “had no pre-exi[s]ting gastrointestinal symptoms prior to taking [the medication]”—directly conflicting with Plaintiff’s prior admission about having life-long gastrointestinal 


Is an expert affidavit based on information that conflicts with a party’s prior sworn testimony a valid opinion that can create a question of material fact to avoid summary judgment?


The trial court granted summary judgment, ruling that the expert affidavit did not create a contested issue of material fact because it did not address the Plaintiff’s previous sworn testimony containing conflicting background information. This issue and others were raised on appeal, and the appellate court affirmed the summary judgment without an opinion.

The rulings are consistent with several decades of established Florida law prohibiting a party from contradicting her own prior testimony with her own affidavit, “or the affidavit of another,” in an effort to create a disputed issue of material fact to avoid summary judgment. See Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954); see also Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687 (Fla. 1st DCA 2008); McKean v. Kloeppel Hotels, Inc., 171 So. 2d 552 (Fla. 1st DCA 1965). A logical extension of this line of cases is that a party may not avoid summary judgment by providing an affidavit from a medical expert who bases his opinion on a medical history different than that previously sworn to by the party.

While the appellate court’s decision without an opinion does not have any precedential value, it demonstrates the court’s confirmation that parties may not change the facts without good reason simply to avoid summary judgment, regardless of the form in which those facts are presented.