Ohio Supreme Court Affirms “Sham Affidavit” Rule

The Supreme Court of Ohio reinforced the "Sham-Affidavit" Rule and affirmed a judge’s rejection of an expert affidavit that contradicted the expert's previous report. In Moore v. Mercy Medical Center, the court held that a "sham affidavit," even if authored by an expert, cannot create genuine issues of fact.

In a 5-2 decision, the Supreme Court affirmed a Fifth District Court of Appeals decision that dismissed a lawsuit accusing doctors at Mercy Medical Center of committing malpractice during the birth of a child. The Court’s decision addressed the “sham-affidavit” rule, which is designed to help a trial court determine whether a case can be resolved on summary judgment without proceeding to trial.

The case involved an alleged failure to initiate an emergency C-section. The defendant, Dr. Godwin Meniru, moved for summary judgment, arguing that the birth mother’s expert witness, Dr. Martin Gubernick, opined that an emergency cesarean section was required the night before the mother delivered. Because Dr. Meniru was not on duty until the next morning, he could not have committed malpractice. The trial court agreed, and dismissed Dr. Meniru from the case. The trial court rejected an affidavit authored by Dr. Gubernick that the plaintiff submitted in opposition to summary judgment—an affidavit that attempted to shift the timeline and opine that Dr. Meniru was negligent for not conducting an emergency C-section when he started his shift the morning of the mother's delivery. The affidavit was a "sham" and contradicted the expert's prior opinions: that a C-section was required the night before Dr. Meniru was on duty.

The Supreme Court agreed. The Court explained that when Dr. Gubernick submitted an affidavit in response to Dr. Meniru’s motion, he added a key opinion: that Dr. Meniru committed malpractice by not conducting the C-section within 30 minutes of his shift starting. This was a new opinion not contained in the expert's previous report. “The trial court did not act in an unreasonable, arbitrary, or unconscionable manner when it struck Dr. Gubernick’s contradictory affidavit under the sham-affidavit rule,” Justice Hawkins wrote.

In a dissenting opinion, Justice Patrick F. Fischer wrote that the sham-affidavit rule applies only when there is a clear contradiction between the expert’s affidavit and the prior statement in the expert report. Gubernick’s two statements indicated that it was possible that the staff on duty the previous night and Dr. Meniru, when he arrived the next morning, both committed malpractice.

Impact of the Decision

Setting up a sham affidavit challenge. Expert depositions present a good opportunity to anticipate and set up a potential sham affidavit challenge. This is accomplished by asking experts to confirm, at their depositions, that their reports and deposition testimony contain all their opinions and that they do not plan to modify or supplement their opinions absent additional facts. Experts should be asked to confirm that, at the time of their deposition, they have received all documents and information they wish to review. Such deposition testimony can be helpful if and when the expert later authors an affidavit specifically drafted to defeat summary judgment.

Challenging affidavits at the summary judgment level. The "sham affidavit" rule is properly evoked in response to a plaintiff's opposition to summary judgment. Failure to challenge an affidavit that a plaintiff submits in support of summary judgment risks waiving any "sham affidavit" challenge. The "belt-and suspenders" approach is twofold: (1) argue the sham affidavit rule in the reply in support of summary judgment and (2) file a separate motion to strike the sham affidavit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.