Following a prolonged labor, Cheri Sheree Moore gave birth to her son, P.C.M., who required intubation because he was in respiratory distress. Moore alleged that the respiratory distress and intubation caused injuries to P.C.M. Moore filed a medical malpractice complaint against the hospital where she delivered the baby and against two physicians who were involved in her labor and delivery.
One of the physicians, Godwin Meniru, M.D., moved for summary judgment after Moore’s expert concluded in his report that the alleged malpractice occurred during a time when Dr. Meniru was not on duty. In opposition, Moore filed an affidavit from the same expert stating that Dr. Meniru committed malpractice by failing to deliver the child within a certain time of his taking over Moore’s care. This opinion was not included in the expert’s original report. Dr. Meniru moved to strike the affidavit, arguing that it contradicted the opinions contained in the expert’s report and was offered solely to create a genuine issue of material fact, in violation of the sham-affidavit rule (“sham affidavit” is used by courts to describe a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment). The trial court agreed and granted both Dr. Meniru’s motion to strike and his motion for summary judgment. The Fifth District Court of Appeals affirmed.
Moore appealed to the Supreme Court of Ohio, contending that the trial court abused its discretion by striking the expert’s affidavit under the sham-affidavit rule, arguing that the rule is inapplicable because the affidavit contradicted only the expert’s earlier unsworn report and thus raises an issue of the affidavit’s credibility or weight, not its admissibility.
The Supreme Court of Ohio stated in its June 23, 2026 Opinion: “We disagree. Because the expert incorporated his report into his affidavit, both documents were properly before the trial court on summary judgment and subject to the sham-affidavit rule. The trial court therefore acted within its discretion by striking the contradictory affidavit. We affirm the judgment of the court of appeals.”
“[A]n affidavit by a retained, nonparty expert that contradicts the expert’s prior deposition testimony does not create a genuine issue of material fact for purposes of opposing a motion for summary judgment, unless the expert sufficiently explains the reason for the contradiction … In his November 2022 report, Dr. Gubernick opined that Dr. Domingo, Dr. Meniru, and the nursing staff had breached the standard of care by not advocating for a C-section on the evening of May 28, 2015. Subsequently, in his April 2023 affidavit, Dr. Gubernick provided a new opinion—that Dr. Meniru had breached the standard of care by failing to begin a C-section within 30 minutes of being notified of fetal distress on the morning of May 29, 2015 … However, Dr. Gubernick initially opined that the standard of care required that the C-section be performed by 7:00 p.m. on May 28, 2015, but his later opinion extended that deadline to the morning of May 29. These two opinions are clearly contradictory.”
A dissenting opinion stated: “It is entirely possible that Dr. Domingo deviated from the accepted standard of care by not ordering a C-section by 7:00 p.m. on May 28 and that Dr. Meniru also deviated from the accepted standard of care by not ordering a C-section within 30 minutes of learning of Moore’s condition on May 29. It is also entirely possible that had a C-section been performed at either of those times, the child’s injuries could have been prevented … Because there is no clear contradiction in this case between Dr. Gubernick’s affidavit and his prior report, I would hold that the trial court abused its discretion by striking Dr. Gubernick’s affidavit under the sham-affidavit rule. Therefore, I would reverse the judgment of the Fifth District Court of Appeals and remand this case to the trial court for further proceedings.”
Source Moore v. Mercy Med. Ctr., Slip Opinion No. 2026-Ohio-2293.
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