Negligence--partial summary judgment--contradictory affidavit
The trial court erred by granting partial summary judgment for plaintiff on a negligence
claim based solely on defendant's contradictory affidavit, because there was additional evidence
beyond defendant's affidavit which established a genuine issue of material fact as to defendant's
alleged negligence on the date in question including a second affidavit submitted by a human
resources specialist who confirmed defendant's personal affidavit that she was present at work on
the date in question.
John H. Anderson for plaintiff-appellees.
Ellis & Winters, L.L.P., by Richard W. Ellis and Alex J.
Hagan, for defendant-appellants Pamela Davis Fewell and
Laboratory Corporation of America.
HUNTER, Judge.
Pamela Davis Fewell (“defendant”) and Laboratory Corporation
of America (“LabCorp”), also a defendant in this action, appeals
from an order, dated 23 June 2004, granting partial summary
judgment. As an issue of material fact existed as to defendant's
negligence, we find the trial court erred in granting partial
summary judgment.
In 2001, Brooke and Todd Hubbard (“plaintiffs”) sought pre-
conception counseling from Dr. James Tomblin (“Dr. Tomblin”), amember of Physicians for Women of Greensboro (“PWG”). Plaintiffs
were concerned as to whether Mrs. Hubbard was a carrier for
hemophilia because of her family history. Dr. Tomblin ordered a
hemophilia screen, and blood was drawn from Mrs. Hubbard on 17
September 2001 for this purpose. However, the blood work was not
submitted until 18 September 2001 for testing by LabCorp, the
company contracted to perform the analysis. The results of a
Factor VIII test performed on the blood indicated that Mrs. Hubbard
was not a carrier for hemophilia, and this information was relayed
by PWG to plaintiffs. Relying on this knowledge, plaintiffs
subsequently conceived and gave birth to a son who was diagnosed
with hemophilia.
Plaintiffs brought suit against Dr. Tomblin and PWG for
wrongful conception. During the course of that litigation, which
was subsequently settled, plaintiffs obtained an affidavit and
deposition from defendant. Defendant was employed by LabCorp as a
phlebotomist in September 2001, and worked on-site at PWG.
Defendant was not a party to the action brought against Dr.
Tomblin.
In her affidavit, dated 17 April 2003, and later deposition
testimony on 1 July 2003, defendant stated that she was absent from
work on 17 September 2001. Defendant indicated that after
returning to work on 18 September 2001, she was contacted by
LabCorp regarding the missing blood work. Defendant stated she
located the blood samples in the refrigerator, performed the
required preparation of such samples as required by LabCorp'smanual for a Factor VIII test, reprinted the request form, and
placed the sample on dry ice for delivery to LabCorp.
On 2 January 2004, plaintiffs filed an action against
defendant, LabCorp, and Jane Doe, an unknown phlebotomist, for
medical negligence, negligent infliction of severe emotional
distress, intentional infliction of severe emotional distress,
fraudulent misrepresentation, punitive damages, breach of contract,
and unfair and deceptive practices. Plaintiffs moved for partial
summary judgment as to defendant's negligence, based on her prior
affidavit and deposition in the lawsuit against Dr. Tomblin.
Defendant responded by submitting two affidavits in opposition
to the motion for partial summary judgment. In a personal
affidavit dated 18 May 2004, defendant stated that, upon reflection
and investigation prior to the filing of the suit against her, she
had determined that she was not absent from work on 17 September
2001, that she had performed the blood test on Mrs. Hubbard, and,
as was her custom and practice, that she would have centrifuged the
blood and quick frozen it immediately as required by LabCorp's
manual. She further stated that she recalled discovering the next
morning that the courier had not picked up the frozen blood in its
dry ice container, and called LabCorp for it to be picked up after
rewriting the order.
Defendant also presented to the trial court an affidavit,
dated 21 May 2004, from Anjanette Greeson (“Greeson”), a human
resources specialist for LabCorp. Greeson stated that employmentrecords showed defendant was not absent from work on 17 September
2001.
After a hearing on 24 May 2004 on the motion, the trial court
granted partial summary judgment as to defendant's negligence on
the grounds that her contradictory affidavit could not be used to
defeat a summary judgment motion. Issues of causation and damages
were reserved for trial. Defendant and LabCorp appeal.
We initially note that plaintiff's motion to dismiss the
appeal as interlocutory was denied by this Court on 9 September
2004, and that, as a matter of substantial right, this appeal is
properly before us for review.
Defendant contends the trial court erred in granting partial
summary judgment based solely on defendant's contradictory
affidavit. We agree.
In Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 249
S.E.2d 727 (1978), aff'd per curiam by an equally divided court,
297 N.C. 696, 256 S.E.2d 688 (1979), this Court held that a
nonmovant party may not defeat a motion for summary judgment solely
by filing an affidavit contradicting personal prior sworn
testimony, so that the only material fact is the credibility of the
affiant. Mortgage Co., 39 N.C. App. at 9, 249 S.E.2d at 732.
Although this decision was affirmed by a split decision of our
Supreme Court, and thus has no precedential value, see Mortgage
Co., 297 N.C. at 697, 256 S.E.2d at 689, this Court has
subsequently applied and clarified the rule first set out in
Mortgage Co. In Allstate Ins. Co. v. Lahoud, 167 N.C. App. 205, 605 S.E.2d
180 (2004), this Court again addressed the issue of whether a
contradictory affidavit would create an issue of material fact
sufficient to defeat a motion for summary judgment. In Allstate,
the defendant had previously pled guilty to a criminal act. Id. at
206, 605 S.E.2d at 182. A civil case predicated upon the same
facts was brought against the defendant, and the defendant's
insurer sought a declaratory judgment as to its obligations to the
defendant, and moved for summary judgment. Id. The defendant
contended summary judgment was not proper, as a material issue of
fact existed as to whether his acts were intentionally harmful and
therefore not covered by the policy. Id. In support, the
defendant submitted an affidavit suggesting that the act might have
been unintentional or negligent. Id. at 211, 605 S.E.2d at 184.
The Allstate Court noted that it was well settled that “a nonmovant
may not generate a conflict simply by filing an affidavit
contradicting his own sworn testimony where the only issue raised
is credibility.” Id. at 211, 605 S.E.2d at 185. However, Allstate
further clarified this rule, stating that:
The issue is not whether the underlying facts
as testified to by [the defendant] might have
supported a jury verdict that he was merely
negligent, but whether his affidavit and
deposition contradicting earlier testimony in
court is sufficient to create an issue of
fact. We conclude that although [the
defendant's] account of the underlying fact
situation might, in other circumstances, be
enough to defeat summary judgment, once [the
plaintiff] supported its summary judgment
motion with [the defendant's] sworn testimony,
[the defendant] can only defeat summary
judgment on the issue of his intentional actsby producing evidence other than his own
affidavit or deposition contradicting his own
testimony.
Id.
We note a substantial difference between the circumstances of
Allstate and the case at bar. In Allstate, the defendant's
contradictory affidavit provided the sole evidence of a material
issue of fact. Summary judgment was therefore properly granted, as
only an issue of credibility was created by the contradictory
affidavit.
Here, defendant submitted two affidavits. First, defendant
submitted a personal affidavit which contradicted her prior
affidavit and deposition in stating that she, rather than an
unknown third party, had worked on 17 September 2001 at PWG, and
that she properly followed procedure in processing the sample.
Standing alone, defendant's affidavit would fail to create a
material issue of fact under Allstate, and might only raise an
issue of credibility insufficient to defeat summary judgment.
Defendant's personal affidavit, however, was corroborated by a
second affidavit submitted by Greeson, the LabCorp human resources
specialist, which confirmed defendant's personal affidavit that she
was present at work on 17 September 2001.
Thus, as there was additional evidence beyond defendant's
affidavit which established a genuine issue of material fact as to
defendant's alleged negligence on the date in question, we find the
trial court erred in granting partial summary judgment.
Reversed.
Judges McCULLOUGH and LEVINSON concur.
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