Gabriella represents healthcare entities in civil litigation matters, including medical malpractice and long-term care liability, at both the trial and appellate levels. Drawing on her strong background in healthcare, she effectively represents medical providers, hospitals, and long-term care facilities in complex civil disputes.
Gabriella received her B.S. in Microbiology from The Ohio State University and her J.D. from Case Western Reserve University. She is admitted to practice in the State of Ohio and the Northern and Southern Federal Districts of Ohio.
Thought Leadership
Case Law Alerts
The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports
July 21, 2026
In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “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”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006-Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.
The Quarterly Dose
LEGAL ROUNDUP – Ohio
February 25, 2026
Ohio Appellate Courts Split on Constitutionality of Medical Malpractice Damages Cap: Sixth District Enforces Limit McNalley v. Keiser, 2025-Ohio 5561 Earlier this year, the 10th District and the 8th District in Lyon v. Riverside Methodist Hospital, 2025-Ohio-2991 (10th Dist.) and Paganini v. Cataract Eye Center of Cleveland, 2025-Ohio-275 (8th Dist.), respectively, held that Ohio’s medical malpractice non-economic damages cap is unconstitutional as applied to the plaintiff-appellees. Ohio’s 6th District in its case, McNalley v. Keiser, 2025-Ohio-5561 (6th Dist.), held that the plaintiff did not meet its burden of showing that the non-economic damages cap was unconstitutional as applied. McNalley sued radiologist Dr. Keiser and his employer after Keiser allegedly failed to diagnose a blood clot, resulting in extensive bowel loss and short-gut syndrome. At trial, a jury awarded McNalley approximately $5.15 million, including $4.5 million in non-economic damages. Dr. Keiser moved to apply the statutory cap on non-economic damages for medical claims, which limits recovery to $500,000 for plaintiffs who suffer catastrophic injuries. McNalley opposed the motion, arguing that the statute violated both due process and equal protection as applied to him, although the 6th District noted that the substance of McNalley’s arguments suggested he was arguing that the statute was unconstitutional on its face. The trial court denied the motion, holding the cap unconstitutional as applied to McNalley, but declined to find the statute unconstitutional on its face. On appeal, the 6th District emphasized the critical distinction between facial and as-applied constitutional challenges. In a rational basis analysis, as used here, to show that a statute is unconstitutional on its face, the movant must show beyond a reasonable doubt that there is no set of circumstances under which the statute may be valid. To show a statute as unconstitutional as applied, a movant must show clear and convincing evidence of a presently existing set of facts that makes the statute unconstitutional when those facts are applied. Although McNalley framed his argument as an as-applied due process challenge, the court found that he failed to present clear and convincing, case-specific facts showing that the statute was unreasonable or arbitrary as applied to him. Instead, his arguments—like those relied upon by the trial court—amounted to a broader attack on the statute’s treatment of all catastrophically injured medical malpractice plaintiffs, which constitutes a facial challenge, and he did not meet the heightened standard. The court was not persuaded by the holding in Paganini, going so far as to indicate that they would have agreed with the defendants that the challenge in Paganini was actually a facial challenge and would have held differently. Accordingly, the court held that the holding in Lyon was appropriately found, based upon articulated and specific facts as applied to the plaintiff. In this case, the court noted that both parties’ arguments were nearly devoid of facts, thereby only allowing it to view the challenge as a facial challenge. Because McNalley did not meet the heightened burden required for a facial challenge and the record lacked specific factual findings supporting an as-applied challenge, the 6th District concluded that the statutory cap must be enforced. The 6th District reversed the trial court’s judgment and remanded the case with instructions to apply the noneconomic damages cap under R.C. 2323.43(A)(3), reinstating the statutory limitation on McNalley’s recovery. The Ohio Supreme Court is scheduled to hear oral arguments in Paganini on February 10, 2026. The decision in Lyon has not been appealed to the Ohio Supreme Court.
