Key Takeaways
- The Ohio Supreme Court held that the sham-affidavit rule applies when an expert incorporates a prior expert report into a sworn affidavit. Once incorporated, the report becomes part of the affidavit and may be analyzed for inconsistencies.
- Courts may strike an expert affidavit submitted in opposition to summary judgment when it contradicts opinions contained in an earlier incorporated expert report and the contradiction is not adequately explained.
- The decision expands the practical reach of Ohio’s sham-affidavit doctrine and reinforces the requirement that expert opinions remain consistent throughout litigation.
- Litigants should carefully evaluate expert reports, affidavits, and deposition testimony for consistency before opposing summary judgment motions.
In June 2026, the Ohio Supreme Court issued its decision in Moore v. Mercy Medical Center, Slip Opinion No. 2026-Ohio-2293, clarifying the application of Ohio’s sham-affidavit rule in the context of expert testimony. The Court held that when an expert expressly incorporates a prior expert report into a sworn affidavit, the report becomes part of the affidavit for summary judgment purposes. As a result, courts may compare the opinions contained in both documents and strike an affidavit that contradicts the incorporated report without sufficient explanation.
The decision provides important guidance for litigants relying on expert testimony to oppose summary judgment and may make it more difficult to avoid summary judgment through later-modified expert opinions.
Background of the Dispute
The case arose from a medical malpractice action filed by Cheri Sheree Moore against Mercy Medical Center and several healthcare providers involved in the delivery of her son. Moore alleged that negligent labor and delivery care resulted in injuries to the child.
During discovery, Moore’s expert, Dr. Martin Gubernick, issued a November 2022 expert report concluding that the treating physicians and nursing staff deviated from the standard of care by failing to advocate for a cesarean section on the evening of May 28, 2015. According to the report, the standard of care required a C-section by 7:00 p.m. that evening.
One of the defendant physicians, Dr. Godwin Meniru, moved for summary judgment, arguing that he was not involved in Moore’s care during the time period identified in the expert report. In response, Moore submitted a sworn affidavit from the same expert. The affidavit expressly incorporated the November 2022 report but also offered a new opinion that Dr. Meniru violated the standard of care by failing to initiate a C-section within 30 minutes of receiving reports of fetal distress on the morning of May 29, 2015.
Dr. Meniru moved to strike the affidavit under Ohio’s sham-affidavit rule, arguing that the new opinion contradicted the expert’s earlier report and was offered solely to create a factual dispute sufficient to defeat summary judgment. The trial court agreed, struck the affidavit, and granted summary judgment. The Fifth District Court of Appeals affirmed.
The Ohio Supreme Court’s Decision
The Ohio Supreme Court also affirmed, first reiterating that the sham-affidavit rule prevents litigants from creating a factual dispute through affidavits that contradict prior testimony or statements without adequate explanation. The rule exists to preserve the effectiveness of summary judgment as a tool for eliminating unsupported claims and manufactured factual disputes.
The Court rejected the plaintiff’s argument that the rule applies only to contradictions between sworn statements. While expert reports are generally unsworn, the Court explained that when an expert expressly incorporates an expert report into a properly executed affidavit, the report becomes part of the sworn affidavit for purposes of Civil Rule 56. Once incorporated, the court may evaluate the consistency of the opinions contained in both documents under the sham-affidavit doctrine.
Applying that principle, the Court concluded that the expert’s affidavit contradicted his earlier report. The report stated that the standard of care required a C-section by 7:00 p.m. on May 28, 2015, while the affidavit offered a new opinion that effectively extended the relevant deadline into the morning of May 29. The Court found these positions inconsistent and determined that the plaintiff had not adequately explained the discrepancy.
The Court also rejected the argument that information learned during Dr. Meniru’s deposition justified the new opinion. According to the Court, the operative report already contained substantially similar information before the expert issued his original report, meaning the purportedly “new” information was available earlier.
Because the affidavit contradicted the incorporated report without sufficient explanation, the trial court acted within its discretion in striking the affidavit and granting summary judgment.
Takeaways
The Moore decision has important implications for Ohio litigation, particularly in professional liability and other expert-driven cases.
First, the decision confirms that expert reports incorporated into affidavits may be treated as part of the sworn summary judgment record. Parties should assume that courts will scrutinize expert reports and later affidavits (and even deposition testimony) together for consistency. Second, litigants cannot avoid summary judgment by introducing materially different expert opinions through later affidavits unless they can provide a persuasive explanation for the change. Third, attorneys should carefully vet expert reports before disclosure. Opinions that are later revised or supplemented may create significant risk if the changes can be characterized as contradictory rather than explanatory.
Finally, Moore reinforces the Ohio Supreme Court’s continued commitment to preserving summary judgment as a mechanism for eliminating unsupported claims and preventing parties from creating artificial factual disputes through inconsistent testimony. If you have any questions about this decision, please contact the authors of this article or your Dinsmore attorney.