A Stark County trial court was within its right to reject an expert's sworn statement in a medical malpractice lawsuit because the statement contradicted his previously submitted written report, the Supreme Court of Ohio ruled today.

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 in 2015. 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.

Dr. Godwin Meniru sought to be dismissed from the lawsuit, noting the birth mother’s expert witness, Dr.  Martin Gubernick, stated that an emergency cesarean section was required the night before the mother delivered. Since Meniru was not on duty until the next morning, he could not have committed malpractice.

Writing for the Court majority, Justice Daniel R. Hawkins explained that when Gubernick submitted an affidavit in response to Meniru’s motion, he added that Meniru also committed malpractice by not conducting the C-section within 30 minutes of his shift starting. Gubernick incorporated his report into his affidavit, swearing that all his statements were true.

“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.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Joseph T. Deters, and Megan E. Shanahan joined Justice Hawkins’ opinion.

In a dissenting opinion, Justice Patrick F. Fischer wrote the majority misapplied the sham-affidavit rule. The 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 Meniru, when he arrived the next morning, both committed malpractice.

Because there was no clear contradiction, the trial court should not have struck Gubernick’s affidavit, the dissent stated.

Justice Jennifer Brunner joined Justice Fischer’s opinion.

Mother Sues Hospital for Child’s Injuries
On May 27, 2015, Cheri Moore was admitted to Mercy Medical to deliver her son. Meniru was the physician on duty when she was admitted, and he started Moore on Pitocin to induce her labor.

Meniru’s shift ended at 7 a.m. on May 28, and Moore’s care for the next 24 hours was transferred to Dr. Albert Domingo. Nurses continued to administer Pitocin, but Moore’s labor did not progress. Moore alleged that by 6 p.m. that evening, there were signs of fetal distress. Domingo received updates from the nursing staff regarding Moore’s labor but did not conduct another physical examination.

Meniru resumed Moore’s care the next day, May 29, at 7 a.m. Having received reports of fetal distress from the staff, he stopped the Pitocin and ordered the emergency C-section. Moore’s son was delivered around 9 a.m., and he was transferred to Akron Children’s Hospital. At Akron Children’s, he was diagnosed with respiratory and vocal cord injuries.

In a 2022 deposition, Moore testified that her son required a tracheotomy shortly after his birth. The boy was experiencing seizures, followed by temporary paralysis, and exhibited speech delays, behavioral outbursts, and sensitivity to lights and sounds.

She filed a lawsuit in Stark County Common Pleas Court against Domingo, Meniru, the hospital, and the nurses involved in her labor and delivery, arguing their deviation from acceptable standards of care caused her son’s permanent injuries.

Expert Files Report
The parties engaged in discovery. Moore selected Gubernick as one of her experts, and he prepared a report in November 2022. In his report, Gubernick concluded that Domingo, Meniru, and the nursing staff deviated from acceptable practice by not advocating for a C-section on the evening of May 28, the day before the delivery. His report stated that the “standard of care required a C-section” by 7 p.m. that evening.

Meniru asked the trial court to dismiss him from the case, arguing he had not been involved in Moore’s care that evening. In response to Meniru’s request to be dismissed, Moore submitted a sworn affidavit by Gubernick which incorporated his November 2022 expert report and offered an additional opinion.

In his affidavit, Gubernick wrote that Meniru failed to provide acceptable care by failing to perform a C-section within 30 minutes of receiving reports of fetal distress on May 29. Gubernick wrote the delay in performing the C-section caused and contributed to the child’s respiratory distress.

Meniru asked the court to strike Gubernick’s affidavit and prevent it from being used in the lawsuit. He argued Gubernick was introducing a new opinion that contradicted his report. This violates the sham-affidavit rule, Meniru maintained.

The trial court agreed and granted Meniru summary judgment. Moore appealed the decision to the Fifth District, which affirmed the trial court’s decision. Moore appealed to the Supreme Court.

Supreme Court Analyzed Sham-Affidavit Rule
Justice Hawkins explained that the sham-affidavit rule exists to ensure statements made through affidavits maintain a consistent story. A contradictory statement cannot be offered merely to prevent a court from granting summary judgment and to prolong the litigation.

The rule was developed by federal courts in 1969, the opinion stated, and Ohio adopted the rule in the Court’s 2006 Byrd v. Smith decision. In Byrd, the Court addressed whether a trial court may disregard a statement in an affidavit that is inconsistent or contrary to a party’s prior deposition testimony.

The Court stated in Byrd that the trial court must consider whether a statement contradicts or “merely supplements” the prior statement.  If a statement is inconsistent, the trial court must give the party opposing summary judgment the chance to sufficiently explain the contradiction.

In today’s opinion, the Court noted that through further cases it extended the sham-affidavit rule to cover expert witnesses.

The Court found that Gubernick’s affidavit contradicted his report. In his report, he wrote that the standard of care required a C-section at 7 p.m., the evening before Meniru resumed caring for Moore. His later opinion in the affidavit extended the deadline to the following morning when Meniru was back on duty.

Moore claimed Gubernick could sufficiently explain the difference in his opinions because, at the time he wrote his report, Meniru had not yet testified in a deposition. When he learned Meniru was notified of Moore’s complications around 7:30 a.m., that is when he added that Meniru should have conducted the C-section within 30 minutes of receiving the reports.

The Court rejected the argument. Meniru’s report of the incident, which was presented to Moore’s legal team prior to Gubernick’s report, indicated the times he was alerted and his directions to stop the Pitocin and closely monitor Moore until he arrived. Gubernick, who had access to the information, did not sufficiently explain the contradiction in his affidavit, the opinion stated. The trial court did not abuse its discretion by striking his statement and dismissing the case against Meniru, the Court concluded.

Statements Not Clearly Contradictory, Dissent Maintained
In his dissent, Justice Fischer noted that Gubernick’s report stated that had the C-section been ordered by Domingo by 7 p.m. the night before she delivered, the child most likely would not have been injured. Gubernick’s second statement indicated that because Domingo did not order the C-section, Meniru should have ordered the procedure within 30 minutes of learning the next morning about Moore’s condition. In Gubernick’s opinion, that step more likely than not, would have prevented the injuries.

The statements are not clearly contradictory, the dissent stated. It is entirely possible that performing the C-section at either of those times would have prevented the injuries, the dissent maintained.

Citing Byrd, Justice Fischer wrote the sham-affidavit rule should be applied sparingly and in instances of a clear contradiction, not a possible one. When it is unclear whether the statements are contradictory, the trial court should deny summary judgment and allow a judge or jury to consider the credibility of the evidence, he stated.

2024-1212. Moore v. Mercy Med. Ctr., Slip Opinion No. 2026-Ohio-2293.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.