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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 31, No. 4, December 2025

December 1, 2025

THOUGHT LEADERSHIP

Dana Gittleman (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) recorded Episodes 2 and 3 of their PLUS podcast, “Insurance Agent E&O – Top Ten Tips for Risk Management.” Episode 2 discusses key strategies for risk management in professional liability litigation—the importance of establishing personal contact with clients, retaining the right liability expert, and understanding the critical nuances of underlying litigation in E&O claims. You can listen here: https://plusweb.org/podcast/insurance-agent-eo-episode-2/. Episode 3 dives into four critical areas for insurance professionals and defense counsel: assessing related litigation, understanding business relationships, staying organized, and getting creative with case strategy. With real-world examples and practical insights, they offer listeners actionable tools to strengthen claims handling and professional liability defense. You can listen to the final episode here: https://plusweb.org/podcast/insurance-agent-eo-episode-3/. 


 

SPEAKING ENGAGEMENTS

Robert Aldrich and Melissa Dziak (both of Scranton, PA) co-presented “Navigating the Digital Shift: Balancing the Benefits and Legal Risks of Patient Portals” at the 2025 ASHRM annual conference. Along with Gina Kittek, System Director, Risk Management & Corporate Compliance at United Health Services, Rob and Melissa discussed mitigation strategies for managing the risks associated with the use of patient portals and how the reliance on patient portals impacts medical malpractice laws.

Christopher Block (Roseland, NJ) served as faculty for the School of Casualty Claims at the CLM Alliance (Claims and Litigation Management Alliance) annual Claims College this past September in Baltimore. He shared strategies and tools that claims professionals can apply to help them better manage their case files.

Ariel Brownstein and Matthew Burdalski (both of Mount Laurel, NJ) and Gary Lesser (Roseland, NJ) co-presented “NJ PIP - A DRPA’s Perspective” at the 34th New Jersey Special Investigators Association’s Seminar & Networking Conference. Ari and Matt also co-presented “Ping! Utilizing Modern Technology to Answer the Who, Where and When” at the NYAct 2025 Annual Education Conference.

Josh J.T. Byrne (Philadelphia, PA) co-presented at the Philadelphia Bar Association’s 2025 Bench-Bar & Annual Conference. Josh joined Marie C. Dooley, member of the Disciplinary Board of the Supreme Court of Pennsylvania, to present “Pennsylvania’s Attorney Disciplinary Process and Our Changing World.” The session reviewed the attorney discipline process in Pennsylvania with a particular emphasis on how it has changed over the last year with significant opinions from the Pennsylvania Supreme Court. The duo also examined potential ethical/disciplinary issues related to changes to the environment for attorneys since the new administration took office. Josh also presented at “Succession Planning for Law Firms and Lawyers 2025,” a Pennsylvania Bar Institute program focused on helping attorneys and firms build continuity, retain key client relationships, and develop the next generation of leaders.

Christopher Conrad (Harrisburg, PA) co-presented “Left Behind? Today’s U.S. Department of Education and the Potential Impact on Special Education and Disability Services” at Pennsylvania Bar Institute’s Exceptional Children Conference.

Jon Cross (Philadelphia, PA) served as a panelist at the International Adventure & Trampoline Parks Association annual conference in Maricopa, Arizona. The panel’s presentation, “Defensibility Strategies – Reduce Liability: Supervision & Documentation,” focused on risk management practices to help park operators and entities minimize liability and strengthen their defense against potential claims and incidents.

Scott Eberle (Pittsburgh, PA) co-presented “Auto Law Update 2025” for the Pennsylvania Bar Institute, an annual update for auto law practitioners.

Heather Carbone and Linda Farrell (both of Jacksonville, FL) were presenters for The Florida Bar’s Workers’ Compensation Section webinar on “Florida’s New Rules of Civil Procedure and Impact on Workers’ Compensation Claims.” Heather and Linda discussed the interplay between the new Florida Rules of Civil Procedure involving discovery and the Rules of Procedure for Workers’ Compensation Adjudications, Chapter 60Q-6. The webinar specifically addressed the updated Rule 1.280 and how it may be applied to workers’ compensation cases and/or civil cases that have an impact on workers’ compensation claims. They also discussed proportionality and what mechanisms should be used to apply the new discovery rule.

Matthew Keris (Scranton, PA) recently co-presented a CLE for the Pennsylvania Coalition for Civil Justice Reform. “Medical Malpractice in Pennsylvania” featured a panel discussion exploring a number of emerging legal issues in medical malpractice, such as the continuing surge of Philadelphia cases; the dilution of plaintiffs’ burden to prove agents’ causation; preserving issues on appeal and waiver rulings of the Superior Court; ethical concerns with double and triple booking; and the rise of punitive damages.

Mark Kozlowski (Scranton, PA) presented on Civil Rights and the 14th Amendment at Marywood University’s “The Courts and Our Community” Lecture Series. The semester-long workshop was presented by Marywood University’s Center for Law, Justice, and Policy. Designed to introduce students to key legal concepts and foster civic awareness, the sessions offered direct engagement with judges, attorneys, and legal scholars. 

Paul Krepps (Pittsburgh, PA) presented “Litigating Qualified Immunity” at the County Commissioners Association of Pennsylvania Insurance Programs Defense Counsel meeting in Harrisburg. The program, part of the Pennsylvania Counties Risk Pool, brings together defense counsel who represent counties and related entities throughout the state. 

Megan Nelson (Orlando, FL) presented a CLE on “Incident Reporting from a Lawyer’s Perspective” to the members of the Central Florida Chapter of the American College of Health Care Executives. As an attorney and registered nurse, Megan offered insight into the importance of incident reporting from both a health care and legal point of view. 

Michele Punturi (Philadelphia, PA) joined attorneys from the claimant’s and defense bars, the judiciary, and the Appeal Board for an in-depth CLE program on the past and future of the Workers’ Compensation Adjudicatory System. Hosted by the Philadelphia Bar Association’s Workers’ Compensation Section, panelists examined historical transformations in the practice of workers’ compensation, spanning from in-person hearings at the State Office Building to modern day hearings and virtual practice.

Jeffrey Rapattoni (Mount Laurel, NJ) co-presented “Artificial Intelligence-Legal Considerations” at the joint National Insurance Crime Bureau/National Conference of Insurance Crime Attorneys national conference. Jeff also co-presented “Building a Better Major Case Investigation” with Derek Maki of Liberty Mutual at IASIU - Michigan Chapter’s annual fall seminar. Jeff and Derek discussed the changing face of medical fraud, ring activity and fraud fighting post-Covid. He presented “AI Vendor Management” to the attendees of the New Jersey Special Investigators Association Fraud Summit. Finally, Jeff participated in the webinar “Trends in Insurance Panel Counsel” hosted by AM Best’s Insurance Professional Resources.

Robin Romano (Philadelphia, PA) was a co-presenter at the Pennsylvania Bar Association’s Workers’ Comp Fall Section Meeting in Hershey, PA. During her presentation, “Civility in Practice,” Robin discussed the importance of treating all parties involved in litigation with respect, professionalism and fairness to promote effective communication and foster trust, and ultimately lead to more efficient and just outcomes in the claims process. The discussion explored practical strategies for fostering civility across all roles in the system, challenges to maintaining professionalism under pressure, and tools for improving communication and collaboration.

Suzanne Tighe (Philadelphia, PA/Scranton, PA) joined the Pennsylvania Bar Institute’s Auto Law Update 2025, sharing insights on the latest developments and trends shaping auto law practice across Pennsylvania. The focus of her presentation was “Ridesharing and Computer Rental Issues.”

John Slimm (Mount Laurel, NJ) participated in the New Jersey State Bar Association’s CLE 2025 Trial Bootcamp: Master the Art of Trial Advocacy. Jack and the Honorable Christine P. O’Hearn, U.S.D.J. and Dennis J. Drasco, Esq. co-presented “Selecting the Jury.” 


 

PUBLISHED WORKS

November 17, 2025 – “Your Engagement Agreement as a Defense Against Fee Disputes,” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA) was published in The Legal Intelligencer

November 10, 2025 – Daniel McGannon’s (Harrisburg, PA) article “Redefining Harm: Did SCOTUS Expand Title VII Protections in ‘Muldrow v. City of St. Louis’?” was published in The Legal Intelligencer’s Labor & Employment/Workers’ Compensation Supplement. 

November 10, 2025 – John Paul Abda’s (Scranton, PA) article “PTSI and First Responders: Act 121—A New Era in Pa. Workers’ Compensation” was published in The Legal Intelligencer’s Labor & Employment Law/Workers’ Compensation Supplement. 

October 28, 2025 – “Pennsylvania Supreme Court Strengthens Legal Protections for Home Inspectors,” by Dana Gittleman (Philadelphia, PA) and Danielle Vugrinovich (Pittsburgh, PA), was published on PLUS Blog.

October 22, 2025 – Anthony Natale (King of Prussia, PA) authored the article, “Compensating the Boys of Fall - College Sports May Soon Face the Ultimate Call: Player or Employee?” appeared in CLM Magazine

Fall 2025 – “From Instagram to the Jury: Lessons in Digital Evidence Authentication,” by Brad Haas (Pittsburgh, PA) was published in PAMIC Magazine. 

September 19, 2025 – “Status of ‘Gist of the Action’ in Legal Malpractice Claims Following Swatt v. Nottingham Village,” by Alesia Sulock and Josh J.T. Byrne was published in The Legal Intelligencer


 

RECOGNITION

John Slimm (Mount Laurel, NJ) was among 11 attorneys honored by the New Jersey Judiciary for their pro bono service. Acting Administrative Director Michael J. Blee said, “Pro-bono work is a sacred obligation for all attorneys, and an essential part of being an upstanding member of our legal community. Without the services of attorneys working pro-bono, our justice system could not function.” 


Defense Digest, Vol. 31, No. 4, December 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio 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.