Sham Affidavit Doctrine
The “sham affidavit” doctrine precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous sworn testimony of the affiant.
Background Facts
On January 11, 2022, Moore filed a pro se complaint individually and on behalf of her son naming Mercy Medical Center and Drs. Domingo and Meniru as defendants, alleging medical negligence in failing to deliver her son (P.C.M.) by Cesarean section earlier, which led to her son suffering permanent injuries. Moore alleged that the medical care and treatment rendered to her and P.C.M. by defendant Godwin Meniru, M.D. beginning on the evening of May 27, 2015 when Moore, in late pregnancy, was brought by ambulance to Mercy Medical Center when her membranes ruptured breached the standard of care (Moore reported the rupture occurred on May 26, 2015 around 11:00 pm.). While Moore named Meniru as a defendant, her complaint alleged no specific negligent acts by Meniru.
After retaining counsel, Moore’s medical malpractice complaint was amended, with an affidavit of merit signed by Frederick Gonzalez, M.D., an OB/GYN standard of care expert.
The deposition of Meniru was taken on March 6, 2023. On that same day, Meniru filed a motion for summary
judgment alleging he was entitled to summary judgment because Moore’s expert, Dr. Gubernick, failed to state in his report that Meniru failed to breach the standard of care and cause injury to P.C.M. In support of his motion, Meniru attached his own affidavit claiming that he was not involved with the management and care of Moore and P.C.M. at
the time Dr. Gubernick opined in his report of November 16, 2022, that a caesarian should have been ordered.
Moore responded to Meniru’s motion for summary judgment, attaching an affidavit signed by Dr. Gubernick that incorporated his expert report of November 16, 2022. He also, for the first time, offered an additional opinion, that a caesarian delivery should have been ordered on May 29, 2015 by Meniru within thirty minutes of being notified of fetal distress.
Meniru then filed a motion to strike the April, 2023 affidavit of Dr. Gubernick, claiming that Dr. Gubernick’s affidavit of April, 2023 was a “sham affidavit”. The trial court granted Meniru’ s motion to strike the April, 2023 affidavit of Dr. Gubernick and granted the motion for summary judgment filed by Meniru. Moore appealed.
The Court of Appeals Stark County, Ohio Fifth Appellate District stated in its July 8, 2024 Opinion: “The trial court found that Dr. Gubernick’s original expert report does not “speak to Dr. Meniru breaching any standard of care by not performing a c-section in a timely fashion, but now in his affidavit, he opined that this delay caused and/or contributed to [PM’s] injuries.” (Judgment Entry, June 26, 2023 at 2). We agree with the trial court that the information contained in the affidavit of Dr. Gubernick offers a new and contradictory opinion as to Meniru’s failure to meet the standard of care … [However,] when an affidavit submitted opposing summary judgment contradicts former testimony, it does not always prevent summary judgment if the nonmoving party can offer a reason for the inconsistency.”
“Nowhere in Dr. Gubernick’s affidavit of April, 2023 does he explain the new evidence he encountered to explain his contradictory theory that Meniru breached the standard of care by not ordering a caesarian section within 30 minutes of being notified of fetal distress on May 29, 2015. He does not explain what he read in Meniru’s deposition or the nurses’ depositions that altered his opinion so drastically to opine that it was Meniru who breached the standard of care on May 29, 2015. Likewise, Moore offers no explanation … Dr. Gubernick’s affidavit explicitly offered a contrary opinion in an effort to avoid summary judgment; namely a caesarian section on May 29, 2015 within thirty minutes of notification of fetal distress … Accordingly, we find that Moore has offered no reasonable explanation for the inconsistent opinion offered by her expert in his April, 2023 affidavit. The trial court did not abuse its discretion in striking the affidavit of Dr. Gubernick attached to appellant’s opposition to Meniru’s motion for summary judgment.”
“Dr. Gubernick’s expert report of November, 2022 is simply a generic, sweeping claim that all medical providers breached their duty of care to Moore and P.C.M. It failed to offer opinion testimony on the specific manner in which Meniru breached the standard of care. Indeed, the report contains most of its criticism to the actions and/or inactions of Domingo. In short, there are no genuine issues of material fact in this case regarding Meniru’ s breach of the standard of care. Accordingly, the trial court did not err in granting summary judgment in favor of Meniru.”
Source Moore v. Mercy Med. Ctr., 2024-Ohio-2610.
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