[Cite as Moore v. Mercy Med. Ctr., 2024-Ohio-2610.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CHERI SHEREE MOORE, Individually JUDGES: and in her capacity as Parent, Natural Hon. W. Scott Gwin, P.J. Guardian, and Next Friend of P.C.M., Hon. John W. Wise, J. a minor Hon. Craig R. Baldwin, J.
Plaintiff-Appellant
-vs- Case No. 2023 CA 00145
MERCY MEDICAL CENTER, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2022 CV 00029
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 8, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Dr. Meniru
THOMAS P. RYAN JEANNE M. MULLIN DANIEL J. RYAN MATTHEW J. TURKALJ RYAN, LLP PEREZ & MORRIS 55 Public Square, Suite 2100 1300 East Ninth Street Cleveland, Ohio 44113 Cleveland, Ohio 44114
LOUIS E. GRUBE For Defendant-Appellee Dr. Domingo KENDRA DAVITT FLOWERS & GRUBE KEVIN M. NORCHI Terminal Tower STEVE FORBES 40th Floor FREEMAN MATHIS & GARY, LLP 50 Public Square 23240 Chagrin Boulevard, Suite 210 Cleveland, Ohio 44113 Cleveland, Ohio 44122 Stark County, Case No. 2023 CA 00145 2
Wise, J.
{¶1} This medical malpractice appeal arises out of the labor and delivery of
P.C.M. on May 29, 2015 at Mercy Medical Center. The appeal brought by plaintiff-
appellant Cheri Sheree Moore, individually and on behalf of her child, alleges error in two
judgments of the Stark County Common Pleas Court that granted the motion to strike the
affidavit of Martin Gubernick, M.D. filed by Moore in response to defendant-appellee’s
motion for summary judgment and that granted the motion for summary judgment filed by
defendant-appellee Godwin Meniru, M.D.
MEDICAL BACKGROUND
{¶2} Plaintiff-Appellant Moore challenges the medical care and treatment
rendered to her and P.C.M. by defendant-appellee 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. Moore reported the rupture
occurred on May 26, 2015 around 11:00 pm.
Day One – May 27 2015
{¶3} Moore was admitted to Mercy Medical Center that evening under the care
of Meniru, who was the attending physician on duty that day for clinic obstetric patients.
Her gestational age was determined to be 37 weeks. To induce labor, Meniru instructed
the nursing staff to administer between zero and twenty milliunits per minute of Pitocin.
The instructions were to increase the dosage as needed until contractions were two to
three minutes apart.
{¶4} Meniru’ s shift ended at 7:00 am the next day. Stark County, Case No. 2023 CA 00145 3
Day Two – May 28, 2015
{¶5} Moore continued in labor the next day and her care was transferred to Albert
T. Domingo, M.D. at the 7:00 am shift change. Domingo visited Moore around the
beginning of his 24-hour shift. Domingo ordered the Pitocin increased to thirty milliunits
per minute as needed to induce labor. Domingo spent much of his shift outside the hospital
at his off-site office and at his home. He did not review P.C.M.’s fetal monitor tracings and
relied on the nurse staffing for updates on Moore’s care.
{¶6} Moore continued in labor that morning and the remainder of the afternoon.
{¶7} Around 4:36 pm, Meniru electronically signed an order for Pitocin to be
administered between zero and twenty milliunits per minute. It is not disputed that Meniru
was physically present at the hospital either on the labor and delivery floor or in the medical
records department. In his deposition taken in 2023, he stated he did not remember if he
saw Moore.
{¶8} By 6:00 pm, there were clear signs of fetal intolerance to labor and
excessive urine activity. The nursing staff increased the Pitocin to as high as 28 milliunits
per minutes around 9:00 pm.
{¶9} During the evening, fetal monitoring strips continued to indicate significant
fetal intolerance and excessive urine activity. These stresses progressed to prolonged
decelerations of P.C.M.’s heart rate.
{¶10} The nursing staff continued to monitor Moore and P.C.M., and she was not
seen by Domingo again that day.
{¶11} It is undisputed that Domingo was the attending physician that day. The
nursing staff reported any changes or progressions in Moore’s delivery to Domingo. Stark County, Case No. 2023 CA 00145 4
Day Three – May 29, 2015
{¶12} Moore continued in labor that morning. At 7:00 am, Meniru took over again
as Moore’s attending physician. He ordered by telephone that the Pitocin be stopped and
the last Pitocin Moore received to induce labor was at 7:27 am.
{¶13} At 7:32 am, Meniru was notified by the nursing staff that P.C.M.’s heart was
monitored by the fetal monitoring strips and exhibited prolonged decelerations several
times.
{¶14} He told the nursing staff he would be coming to the hospital immediately.
{¶15} At 8:20 am, a third telephone call was placed by the nursing staff to Meniru
when P.C.M.’s heart rate was charted as “decelerating into the 60’s” and the infant, P.C.M.,
had only progressed partway through the birth canal.
{¶16} Meniru arrived at the hospital and examined Moore at 8:37 am. Moore
recalled Meniru saying “Oh my God, you should have already had this baby.”
{¶17} Meniru ordered an emergency caesarian section at 8:41 am when he
observed a high fetal station, poor prognosis of labor, fetal bradycardia and obstructed
labor. The operative report listed pre-operative conditions of “[p]rolonged rupture of
membranes, prolonged labor, high fetal station, obstructed labor and nonreassuring fetal
condition.”
{¶18} General anesthesia was administered to Moore at 8:48 am and the first
incision was made at 8:56 am. P.C.M., a boy, was delivered around 8:57 am by Meniru.
P.C.M weighed six pounds, one ounce. He was intubated and taken to Akron Children’s
Hospital where he was ultimately diagnosed with multiple medical complications. Stark County, Case No. 2023 CA 00145 5
PROCEDURAL BACKGROUND
{¶19} 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. While Moore named Meniru as a defendant, her complaint alleged no specific
negligent acts by Meniru.
{¶20} After retaining counsel, her complaint was amended on March 18, 2022.
with an affidavit of merit signed by Frederick Gonzalez, M.D., an OB/GYN standard of care
expert.
{¶21} Moore alleged that Drs. Domingo and Meniru were negligent in failing to
order a caesarian section earlier, which resulted in permanent and substantial injuries to
P.C.M.
{¶22} Moore also alleged negligence by the hospital and nursing staff.
{¶23} Discovery commenced and Moore identified her experts including Martin
Gubernick, M.D., a Board-Certified OB/GYN. Moore produced an expert report in
compliance with Civ. Rule 26(B) prepared by Dr. Gubernick. Dr. Gubernick opined, in his
expert report dated November 16, 2022, that Dr. Domingo, Dr. Meniru and the nursing
staff all deviated from good and acceptable practice by not advocating for a c-section in
the evening of 5-28-2015. (Plaintiff’s opposition to Meniru’ s motion for summary judgment,
Exh.2 to Exh. 5 filed April 18, 2023.)
{¶24} The deposition of Meniru was taken on March 6, 2023.
{¶25} On that same day - March 6, 2023 - Meniru filed a motion for summary
judgment alleging he was entitled to summary judgment because Moore’s expert, Dr. Stark County, Case No. 2023 CA 00145 6
Gubernick, failed to state in his report that Meniru failed to breach the standard of care
and cause injury to P.C.M.
{¶26} In support of his motion, Meniru attached, inter alia, 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.
{¶27} Moore requested and received additional time to respond to Meniru’s
motion for summary judgement. As reasons for the request, Moore explained that the
deposition testimony of Meniru was not transcribed until March 17, 2023 and her expert,
Dr. Gubernick, needed additional time to review the deposition testimony. The request
was granted by the trial court.
{¶28} On April 18, 2023, Moore responded to Meniru’s motion for summary
judgment. In response, Moore attached 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.
{¶29} Meniru then filed a motion to strike the April, 2023 affidavit of Dr. Gubernick.
Meniru claimed, inter alia, that Dr. Gubernick’s affidavit of April, 2023 was a “sham
affidavit”.
{¶30} On June 26, 2023, the trial court entered a three-page judgment entry
granting Meniru’ s motion to strike the April, 2023 affidavit of Dr. Gubernick and granting
the motion for summary judgment filed by Meniru on March 6, 2023. Stark County, Case No. 2023 CA 00145 7
{¶31} The trial court characterized the April, 2023 affidavit of Dr. Gubernick as a
“contradictory affidavit” saying “[o]nly now, when it has become an issue before the Court,
has Dr. Gubernick suddenly determined that Dr. Meniru’ s actions fell below the standard
of care.” The trial court characterized Dr. Gubernick’s affidavit as a “sham affidavit”
inconsistent with a prior expert report and/or deposition testimony. (Judgment Entry, June
26, 2023).
{¶32} Later, Moore dismissed the remaining defendants and the Ohio Department
of Medicaid filed a motion dismissing its cross claims. This appeal follows arguing two
assignments of error.
ASSIGNMENTS OF ERROR
{¶33} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
DECLARING THE AFFIDAVIT OF DR. MARTIN GUBERNICK, M.D., TO BE A “SHAM”
AND ABUSED ITS DISCRETION BY STRIKING IT.
{¶34} “II. THE TRIAL COURT ERRED BY AWARDING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT DR. GODWIN I. MENIRU.”
LAW AND ANALYSIS
I. Motion to Strike Affidavit was not abuse of discretion
Standard of Review on Motion to Strike
{¶35} A trial court’s ruling concerning the admission of expert testimony of opinion
is within the sound discretion of the trial court and will not be disturbed absent an abuse
of discretion. Beattoe v. McCoy, 2018-Ohio-2535, ¶25 (1st Dist.). Moore’s claim that this
Court should review the trial court’s ruling on the motion to strike de novo because it was
combined with a motion for summary judgment is not our established precedent. Stark County, Case No. 2023 CA 00145 8
Campagne-McGuffin v. Diva Gymnastics Academy, 2022-Ohio-3885, ¶ 20 (5th Dist.)
(“Pursuant to our established precedent, we review the trial court’s striking of the affidavits
under an abuse of discretion standard.”).
{¶36} Abuse of discretion is defined as more than an error of law, but a decision
that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217 (1983). A trial court does not abuse its discretion in striking an affidavit by an expert
that is filed for the first time in response to a motion for summary judgment. Myers v. John
A. Hudec Dental Ctr. Inc, 2022-Ohio-80, at ¶ 33. (8th Dist.).
{¶37} A reviewing court is not free to substitute its judgment for the trial court.
Noko v. Fairview Gen. Hosp., 1996-Ohio-159.
{¶38} With that standard in mind, we review the trial court’s ruling striking the
affidavit of Dr. Gubernick attached to Moore’s response to Meniru’s motion for summary
judgment.
{¶39} Here, the trial court found that Dr. Gubernick’s affidavit directly addressing
Moore’s claims against Meniru was a “sham affidavit” contradictory or inconsistent with his
expert witness report.
The “sham affidavit” doctrine
{¶40} 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.
{¶41} The doctrine is generally thought to have originated in the federal case of
Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 577-78 (C.A.2, 1969).
In Perma, the United States Second District Court of Appeals held that a contradictory Stark County, Case No. 2023 CA 00145 9
affidavit failed to raise a genuine issue of material fact when Perma Research’s president
testified in deposition that he could not recall an instance in which the adverse party’s
employees had behaved fraudulently. Id. at 577-78. Later, in response to summary
judgment, he submitted an affidavit stating that these same employees “never had any
intention of performing their contract with Perma Research.” Id at 577.
{¶42} The Court of Appeals held that the trial court properly granted the summary
judgment dismissing fraud claims saying “[i]f a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an affidavit contradicting his
own prior testimony, this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.” Id. at 577-78.
{¶43} Since Perma, federal district courts of appeals and state courts have
adopted some form of the sham affidavit doctrine.
{¶44} In Byrd v. Smith, 2006-Ohio-3455, ¶ 8, the Ohio Supreme Court addressed
whether a party’s affidavit that conflicted with prior deposition testimony should be
considered in deciding a summary judgment motion. The Court held that “[A]n affidavit of
a party opposing summary judgment that contradicts former deposition testimony of that
party, may not, without sufficient explanation, create a genuine issue of material fact to
defeat the motion for summary judgment.” Id. at paragraph 2 of the syllabus. With respect
to a nonmoving party, the Court explained that the analysis is a bit different:
If an affidavit appears to be inconsistent with a deposition, the court
must look to any explanation for the inconsistency. We do not say that a
nonmoving party’s affidavit should always prevent summary judgment when
it contradicts the affiant’s previous deposition testimony. After all, deponents Stark County, Case No. 2023 CA 00145 10
may review their depositions and correct factual error before the depositions
are signed.” Id. at ¶ 26-27.
{¶45} The issue of contradictory affidavits by expert witnesses was not before the
Byrd Court.
{¶46} In Pettiford v. Aggarwal, 2010-Ohio-3237, the Ohio Supreme Court
extended the Byrd holding to nonparty expert witnesses. It held that “[a]n affidavit of a
retained, nonparty expert contradicting the former deposition testimony of that expert and
submitted in opposition to a pending motion for summary judgment does not create a
genuine issue of material fact to prevent summary judgment unless the expert sufficiently
explains the reason for the contradiction”. Id. at syllabus.
{¶47} In response to the argument that counsel cannot prevent a nonparty expert
from deliberately or inadvertently misstating facts during a deposition, the Pettiford Court
explained the various differences between lay witnesses and non-party expert witnesses.
Id. at ¶ 29-32. Among these differences were: (1) party experts are retained and
compensated by parties and their attorneys; (2) these experts are hired to review cases
and offer opinions on essential material elements and are subject to more restrictive
discovery and evidentiary rules than fact witnesses; (3) a party’s attorney directs the expert
as to the subject matter upon which an opinion is needed, helps to determine what
evidence the expert reviews, and works closely with the expert throughout the litigation to
prove or defend against the causes of action; (4) while attorneys do not represent experts,
they often act as if they do, by objecting and rehabilitating the expert if needed, or if
dissatisfied, clarifying depositions on the record; and (5) experts have the right under Stark County, Case No. 2023 CA 00145 11
Civ.R. 30(E) to correct errors in form or substances, and give reasons for corrections, and
a party’s attorney often assists with this process. Id. at ¶¶ 31-32.
{¶48} The Court stressed that “[i]f a retained, nonparty expert is permitted to
defeat summary judgment at the eleventh hour by changing his or her opinions without a
sufficient explanation, summary judgment will be rendered meaningless” Id. at ¶ 34. See
also Frost v. Evenflo Company, Inc., 2023-Ohio-4561, ¶ 111 (2nd Dist.).
{¶49} The sham affidavit doctrine is not limited to changes in deposition testimony.
It applies to conflicts between affidavits and interrogatory responses as well as deposition
testimony. School Dist. No. 1J Multnomah County Oregon v. AGands, Inc., 5 F.3d 1255,
1254 (9th Cir., 1993); Intimate Bookshop v. Barnes & Noble, Inc., 2003 WL 22251312 at
*9 (S.D.N.Y. Sept. 30, 2003) (disregarding declarations that inexplicably contradicted
statements plaintiff made in its complaint and answers to defendant’s interrogatories,
through its expert’s reports and no deposition testimony).
{¶50} A “sham affidavit” is a term of art that does not imply an actual sham. It
simply implies a contradictory affidavit offered for the purposes of defeating summary
judgment. Without weighing the evidence or credibility, the trial court can disregard the
affidavit as not genuine in ruling on a motion for summary judgment. Lujan v. Navistar,
Inc., 555 S.W.3d 79 (Tex. 2018), reh’g denied (Sept. 28, 2018).
{¶51} Without using the term “sham affidavit”, this Court has recognized the
doctrine of a contradictory affidavit being used to defeat a motion for summary judgment.
In Zanesville Truck Ctr. V. Burech & Crow, 2004-Ohio-6278, ¶ 60 (5th Dist), the issue in
the context of a legal malpractice claim was whether or not a contradiction existed between
an expert’s deposition testimony and subsequent affidavit where the expert added Stark County, Case No. 2023 CA 00145 12
opinions on the issue of standard of care. This Court held that the affidavit attached to the
summary judgment contradicted rather than supplemented or clarified the deposition
testimony. See also Thornsley v. Lafferty’s Coin Op. Laundry L.L.C., 2022-Ohio-3907, ¶
36 (5th Dist.) (holding that the trial court did not abuse its discretion in striking an affidavit
that contradicted deposition testimony of a party when the party offered no explanation for
the contradiction).
Application of “Sham Affidavit” Doctrine to Dr. Gubernick’s affidavit
{¶52} In responding to Meniru’ s motion for summary judgment, Moore was
required to show that genuine issues of material fact existed concerning Meniru’s
treatment of Moore during labor and birth of P.C.M. In short, Moore needed to demonstrate
that there was a genuine issue of material fact that there was a causal link between the
delayed caesarian delivery and P.C.M.’s respiratory distress requiring intubation and
resulting injuries.
April 4, 2023 Affidavit of Dr. Gubernick
{¶53} Moore produced the affidavit of Dr. Gubernick signed in front of a notary
public on April 4, 2023. In his four-page affidavit, Dr. Gubernick addressed the methods
in which he believed Meniru fell below the standard of care in the labor of Moore and
delivery of P.C.M.:
21. Dr. Meniru took over the care of the patient at around 7:00 on 5-
29-15.
.... Stark County, Case No. 2023 CA 00145 13
28. The standard of care of an attending OBGYN requires the ability
to respond and perform a caesarian delivery within 30 minutes of being
notified of fetal distress.
29. Dr. Meniru was notified at 7:27 AM and again at 7:32 AM of fetal
distress. He ordered the Pitocin to be stopped, but he did not arrive until 8:37
AM.
30. At a minimum, Dr. Meniru fell below the standard of care by
failing to begin a caesarian delivery within 30 minutes of receiving reports of
fetal distress.
31. It is my opinion, based upon the available information, records,
and the review summarized above, it is more likely than not that that [sic] the
standard of care was not met and/or had been breached by Dr. Godwin
Meniru and these deviations caused and contributed to [P.C.M.]’s injuries.
32. At a minimum, Dr. Meniru fell below the standard of care by failing
to begin a caesarian delivery within 30 minutes of receiving reports of fetal
distress.1
33. The delay in performing a caesarian delivery caused and
contributed to the respiratory distress of the child.
34. Timely response and caesarian delivery by Dr. Meniru would
have prevented the need for intubation and subsequent injuries.
1 According to the medical records, the emergency caesarian was ordered at 8:41 am. Stark County, Case No. 2023 CA 00145 14
35. Had the appropriate standard of care been followed by Dr.
Meniru, it is more likely than not that the respiratory distress at birth would
have been avoided and the intubation would not have occurred.
36. I retain the right to modify these opinions based upon any
additional information provided to me.
November 16, 2022 Expert Report
{¶54} On November 16, 2022, in response to Civ.R. 26, Moore submitted the
expert report of Dr. Gubernick.
{¶55} Dr. Gubernick opined:
By 1800 of 5-28-2015, there was clear signs of fetal intolerance to
labor and excessive urine activity. Commented [DMG1]:
Dr. Domingo was notified multiple times concerning the protraction
of labor as well as a non-reassuring tracing. Despite the updates, Dr.
Domingo failed to personally evaluate the fetal tracing and labor progress.
By midnight, prolonged decelerations occurred. Although the Pitocin was
reduced to 14mu (it had been as high as 28 mu) there remained evidence
of excessive uterine activity as well as fetal intolerance to labor. The
prolonged deceleration reoccurred several times during the am hours of 5-
29-2015. Transfer of care returned to Dr. Meniru in the morning of 5-29-
2015 at about 0700. Ultimately, Dr. Meniru made the decision to perform a
c-section at 0841. At 0859 a male weighing 6lbs 1oz. was born with apgars
of 5.7. The indication documented for the c-section was obstructed labor, Stark County, Case No. 2023 CA 00145 15
high station, poor labor and fetal bradycardia. The child required intubation
and was ultimately diagnosed with multiple medical complications.
It is my opinion that the care Ms. Moore received at the Mercy
Hospital during her 2015 admission was below standard of good and
acceptable practice. By 1800 of 5-28-201[sic], the fetal tracing required
Pitocin to be turned off, additional fetal resuscitation performed and if the
fetal tracing as well as the contractions pattern not improved, a c-section
was required. Dr. Domingo, Dr. Meniru, the nursing staff all deviated from
good and acceptable practice by not advocating for a c-section in the
evening of 5-28-2015. The standard of care required a c-section by 1900 if
the tracing did not return to reassuring. Had the c-sections been performed
by 1900 on 5-28-2015, more likely than not, the child would not have
required intubation, and all injuries that occurred as a result of his intubation
would have been avoided. At this point, pending further information, I
reserve my option as to whether this child sustained an intrapartum
neurologic injury as a result of the delay in performing the c-section.
Comparison of report and affidavit of Dr. Gubernick
{¶56} Dr. Gubernick opined in his expert report of November, 2022, that the
standard of care required a c-section by 1900 on May 28, 2015 “if the tracing did not return
to reassuring.” Moore does not argue that the tracing ever returned to acceptable
parameters. So, too, Dr. Gubernick’s expert report contains no specific opinion on what
Meniru should have done other than a broad conclusory statement that the nursing staff,
Dr. Domingo and Dr. Meniru did not meet the standard of care. “Dr. Domingo, Dr. Meniru, Stark County, Case No. 2023 CA 00145 16
the nursing staff all deviated from good and acceptable practice by not advocating for a c
section in the evening of 5-28-2015.”
{¶57} (Report, Nov. 16, 2022 at 2, Exh. 2 to Exh. 5 of Plaintiff’s Opposition to
Motion for Summary Judgment, April 18, 2023.)
{¶58} In contrast, Dr. Gubernick opined in his Affidavit of April 4, 2023
attached to plaintiff’s opposition to Meniru’s summary judgment motion that Meniru
fell below the standard of care by failing to begin a caesarian delivery within 30
minutes of receiving reports of fetal distress on May 29, 2015. “Timely response
and caesarian delivery by Dr. Meniru would have prevented the need for intubation
and subsequent injuries.” (Affidavit, April 4, 3023 at ¶ 34-35).
{¶59} Meniru took over the care of Moore at 7:00 am on May 29, 2015 and ordered
an emergency caesarian at 8:41 am. In the same affidavit, Dr. Gubernick stood by his
opinions of November 16, 2022 with further specificity and additional opinions.
{¶60} (Affidavit, April 4, 2023 at 2, Exh. 5 to Plaintiff’s Opposition to Motion for
Summary Judgment, April 18, 2023.
{¶61} 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).
{¶62} 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. Stark County, Case No. 2023 CA 00145 17
{¶63} But our analysis does not stop there. Under the Ohio Supreme Court
holdings in Byrd and Pettiford, 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. “A nonmoving party’s
contradictory affidavit must sufficiently explain the contradiction before a genuine issue of
material fact is created.” Byrd, at ¶ 29, 2006-Ohio-3455.
{¶64} As set forth above, the trial court did not err in finding that Dr. Gubernick’s
expert report and affidavit are contradictory. We now review Moore’s reasons for the
inconsistency.
Meniru signed an order for Pitocin on May 28, 2022
{¶65} Moore argues that Meniru was physically located in the hospital the
afternoon of May 28, 2015 and signed an order for Pitocin at 4:36 pm. Therefore, according
to Moore, there is a question of fact as to whether Meniru was involved in Moore’s care on
May 28, 2015 when Dr. Gubernick first opined a caesarian should have been performed
by 7:00 pm.
{¶66} But Moore cannot dispute that Domingo was the attending physician that
day and responsible for Moore’s care. Since Moore was a “clinic” patient, Domingo was
the only one covering on May 28, 2015 for the “clinic patients”. (Domingo Dep. at 45). And
no nurse, at any point in time between 7:00 am May 28 and 7:00 am May 29, ever told
Moore they were trying to reach Meniru or that he was involved in her care in any way.
(Moore Dep. at 133-134). So, too, the medical records do not show that the nursing staff
communicated by telephone or otherwise with Meniru on May 28, 2015. And Meniru states
in his deposition and affidavit that he was not involved in Moore’s care and treatment Stark County, Case No. 2023 CA 00145 18
during the critical period Dr. Gubernick first opined that the standard of care required a
caesarian section on May 28, 2015. (Meniru Dep. at 97). So, too, Dr. Gubernick, in both
his expert report and his affidavit, concedes that Moore’s care was transferred to Domingo
on the morning of May 28, 2015 at 7:00 am.
{¶67} Meniru offered an explanation as to why the medical records showed his e-
signature for Pitocin on 5/28/2015:
[Meniru]: When the patient came in and I assessed her. I gave
orders for Pitocin...
That would have been a verbal order.
But with that verbal order, the nurses will start giving her Pitocin ...
on the patient ...
They could enter the order as a verbal order and then I would sign it
later ...
To keep up with my records, I will sign records any time I was around
and had access to the record. (Meniru Dep. at 95-96).2
{¶68} In short, the medical records that show that Meniru e-signed an order for
Pitocin on May 28, 2015 at 4:36 pm does not demonstrate that he was Moore’s attending
physician or responsible for her care and treatment during the critical period Dr. Gubernick
first opined a caesarian section was required.
2 Similarly, the medical records show an e-signature for Domingo on May 30, 2015, the
date after P.C.M. was delivered. There is no evidence that Domingo ever saw Moore after the delivery of P.C.M. (Domingo Dep. at 86-87.) Stark County, Case No. 2023 CA 00145 19
Affidavit of Dr. Gubernick based on newly discovered evidence
{¶69} Moore argues that Dr. Gubernick based his affidavit of April, 2023 on new
evidence. Dr. Gubernick stated in his affidavit that after writing his expert report, he
reviewed the depositions of Meniru, Nurse Allen and Nurse Pettay. He also reviewed the
curriculum vitae and reports from Meniru’s expert Michael Cackovic and the affidavit of
Meniru attached to Moore’s motion for summary judgment.
{¶70} Moore points to the leave granted by the trial court at her suggestion for
additional time to oppose Meniru’ s motion for summary judgment. (Moore’s brief at 20).
{¶71} Yet Moore points to no “additional evidence” in Meniru’ s deposition or other
new materials that led Dr. Gubernick to conclude that Meniru violated his duty of care to
Moore by not performing a caesarian on May 29, 2015 within 30 minutes of being notified
of fetal distress. 3
{¶72} The medical records showing the e-signature of Meniru on May 28, 2015
were available to Dr. Gubernick for review before he wrote his expert report in November,
2022. And he concluded that Domingo was Moore’s attending physician responsible for
her treatment and care. Indeed, he spent a paragraph outlining that Domingo was notified
multiple times during the day of Moore’s protracted labor and non-reassuring tracing.
{¶73} 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
3 Meniru ordered a caesarian 69 minutes after the nurse alerted him to fetal distress. Stark County, Case No. 2023 CA 00145 20
who breached the standard of care on May 29, 2015. Likewise, Moore offers no
explanation.
Sham affidavit rule does not apply to differences between an expert report and an affidavit
{¶74} Moore argues that the trial court’s ruling striking Dr. Gubernick’s affidavit
under the sham affidavit doctrine does not apply to inconsistencies and/or contradictions
between an expert report submitted under Civ.R. 26(B) and a later affidavit. According to
Moore, the first sworn submission Dr. Gubernick made in this case was his affidavit. Moore
characterizes the expert report submitted under Civ.R. 26(B) as an “unsworn report”.
(Moore’s brief at 16).
{¶75} This argument is misplaced. First, Dr. Gubernick incorporated his expert
report opinions into his sworn affidavit. “13. Based upon the above, I stand by my opinions
listed in my November 16, 2022 report. Further specificity and additional opinions are as
follows.” (Plaintiff’s Exh. 5 to Plaintiff’s Opposition to Meniru motion for summary judgment,
April 18, 2023.)
{¶76} Second, the purpose of exchanging expert witness reports under Civ.R.
26(B) is to prohibit an expert from testifying to any opinions that are not disclosed in their
report. “An expert will not be permitted to testify or provide opinions on matters not
disclosed in his or her report.” Civ.R. 26(B)(7)(c).
{¶77} As noted by appellee, the Staff Notes to Civ.R. 26(B)(7) set forth the
rationale for requiring expert reports to learn the opinions of opposing party’s expert to
lessen the time and significant expense associated with expert discovery including
depositions. Stark County, Case No. 2023 CA 00145 21
{¶78} In short, at minimum, Dr. Gubernick incorporated his expert report in his
sworn affidavit attached to Moore’s response to Meniru’s motion for summary judgment.
Accordingly, it is not an “unsworn report” as alleged by Moore.
Expert Report of Dr. Gubernick and Affidavit in Response to Summary Judgment are not inconsistent
{¶79} Moore argues that the expert report of Dr. Gubernick is not inconsistent with
his affidavit because he opines in the expert report that Meniru “deviated from good and
acceptable practice by not advocating for a c-section in the evening of 5-28-2015.” But a
reading of the expert report does not fault Meniru alone, but is a blanket and sweeping
conclusion that all health care providers breached the standard of care. “Dr. Domingo, Dr.
Meniru, the nursing staff all deviated from good and acceptable practice by not advocating
for a c section in the evening of 5-28-2015.” (Exh. 2 to Plaintiff’s Exh. 5, Plaintiff’s
Opposition to Meniru motion for summary judgment, April 18, 2023.) The expert report
does not definitively fault Meniru alone for any breach of standard of care on May 28, 2015.
There is no testimony or evidence that Meniru was even around the evening of May 28,
2015. By all accounts, he was not the attending physician of Moore on May 28, 2015.
{¶80} Instead, 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.
{¶81} In short, Moore argues the standard of care was breached on the evening
of May 28, 2015 or alternatively on the morning of May 29, 2015. It is not reasonable, as
Moore claims, for jurors to conclude that the standard of care “at either moment would
have prevented an injury that had not yet occurred.” (Moore’s brief at 19). Stark County, Case No. 2023 CA 00145 22
{¶82} 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. The first assignment of error is
overruled.
II. Granting of Summary Judgment to Meniru was not error
Standard for Summary Judgment
{¶83} After the trial court struck the affidavit of Dr. Gubernick attached to Moore’s
response, the trial court found that “no expert testimony exists to show that Dr. Meniru
breached the standard of care that caused or contributed to [P.C.M.’s] injuries. It granted
Meniru’ s motion for summary judgment finding no material issue of fact remains as to the
claims against Defendant Meniru ...” (Judgment Entry, June 25, 2023 at 3).
{¶84} In her second assignment of error, Moore contends that the trial court erred
in granting Meniru’ s motion for summary judgment because even without Dr. Gubernick’s
affidavit, she presented sufficient evidence demonstrating that there were issues of fact
regarding Meniru’ s role in the labor and delivery of P.C.M.
{¶85} To illustrate that genuine issues of facts remain, Moore points to Dr.
Gubernick’s expert report that Dr. Domingo, Dr. Meniru and the nursing staff all breached
the standard of care by not “advocating” for a caesarian by 7:00 pm on May 28, 2015.
{¶86} Moore also points to Meniru’s deposition testimony pp. 92-93 and the
medical records that demonstrate Meniru’s presence at the hospital at 4:46 pm on May
28, 2015. Moore claims that the presence of Meniru at 4:36 created issues of fact that Stark County, Case No. 2023 CA 00145 23
Meniru violated the standard of care for “jurors to sort out.” (Moore’s brief at 24). We
disagree.
{¶87} Appellate courts conduct a de novo review of trial court summary judgment
decisions. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); Lowrey v. Fairfield
Med. Ctr., 2009-Ohio-4470, ¶ 44 (5th Dist.) (“Summary judgment proceedings present the
appellate court with the unique opportunity of reviewing the evidence in the same manner
as the trial court” citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987).
The Pettiford Court explained the purpose of summary judgment:
In answering the certified question, we were mindful of the purpose
of summary judgment. We recognized that the procedure set forth in Ohio
Civ.R. 56 is modeled after the corresponding federal rule and observed that
the federal rules are ‘designed to secure the just, speedy and inexpensive
determination of every action.
....
Rule 56 must be construed with due regard not only for the rights of
persons asserting claims and defenses that are adequately based in fact to
have those claims and defenses tried to a jury, but also for the rights of
persons opposing such claims and defenses to demonstrate in the manner
provided by the Rule, prior to trial, that the claims and defenses have no
factual basis. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 327, 106 S.Ct.
2548, 91 L.Ed.2d 265.’ Pettiford, 2010-Ohio-3237, at ¶ 21.
{¶88} Mere speculation and unsupported conclusory assertions are not sufficient
to meet the nonmovant’s reciprocal burden to set forth specific facts to show that a genuine Stark County, Case No. 2023 CA 00145 24
issue exists. Knab v. Washington County Board of Commissioners, 2024-Ohio-1569, ¶
38 (4th Dist.) (citations omitted).
Elements of medical malpractice
{¶89} It is well settled under Ohio law that in order to meet the burden of proof in
a medical negligence claim, a plaintiff must show by a preponderance of the evidence (1)
the standard of care recognized by the medical community; (2) the failure of the defendant-
physician to meet that standard of care; and (3) a causal link between the negligent act
and the injury sustained. Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976). To establish these
three elements, a plaintiff must provide competent medical expert opinion.
{¶90} Having reviewed the pleadings, the record and the filed deposition
transcripts, and reading the evidence most favorably for the nonmoving party, we find no
genuine material issues of fact that would require the denial of the motion for summary
{¶91} 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.
{¶92} 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. The second assignment of error is overruled. Stark County, Case No. 2023 CA 00145 25
CONCLUSION
{¶93} Accordingly, we overrule appellant’s assignments of error and affirm the
judgment of the trial court.
By: Wise, J.
Gwin, P.J., and
Baldwin, J., concur.
JWW/kt 0624