Article by Holly Olarczuk-Smith, Esq.
On June 23, 2026, the Ohio Supreme Court, in Moore v. Mercy Med. Ctr., extended the “sham-affidavit” rule to cover expert witnesses.
In a 5-2 decision, the Ohio Supreme Court determined that the Fifth District Court of Appeals correctly dismissed a medical malpractice lawsuit against a physician at Mercy Medical Center involving the birth of a child. Moore at ¶1-2. The defendant-physician moved for summary judgment after the expert for the plaintiff-mother concluded in his written report that the alleged malpractice occurred during a time when the doctor was not on duty. Id. at ¶11. In opposition, plaintiff filed an affidavit from the same expert stating that the physician committed malpractice by failing to deliver the child within a certain time of his taking over plaintiff’s care. Id. at ¶12. This new opinion was not contained in the expert’s original report. Id. at ¶26. The defendant-physician moved to strike the affidavit because it contradicted the opinions contained in the expert’s original report without sufficient explanation and was offered solely to create a genuine issue of material fact, in violation of the sham-affidavit rule. Id. at ¶13, 36. The trial court granted defendant-physician’s motion to strike and his motion for summary judgment, which was affirmed by the Fifth District. Id. at ¶14-16.
In upholding the decision of the Court of appeals, the Supreme Court explained that “[t]he term 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.” Id. at ¶19 (internal quotation marks omitted). “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.” Id. at ¶4. “A trial court acts within its discretion when it strikes a contradictory affidavit rather than treating the inconsistency as an issue of credibility or weight.” Id. at ¶39. Thus, “the trial court acted within its discretion by striking the affidavit under the sham-affidavit rule.” Id. at ¶36.
The opinion can be found here.