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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 30, No. 2, June 2024

June 1, 2024

RECOGNITION

Stephanie Andrade (Fort Lauderdale, FL) has been selected by The Florida Bar Young Lawyers Division (YLD) as one of the Top “36 Under Thirty-Six” lawyers in the state. The professionalism award was bestowed upon 36 honorees, all under the age of 36, who were vetted through a rigorous review and selection process. According to the YLD, recipients display the highest standards of professionalism and ethics, “their character and integrity remain unwavering, and their dedication to raising the bar in the legal profession is unmatched.” Stephanie is a member of the firm’s Casualty Department where she represents local and national clients in a variety of civil litigation matters. 

Melanie Foreman (Philadelphia, PA) has been elected to the Board of Philadelphia Legal Assistance (PLA). PLA is dedicated to enforcing and protecting the rights of individuals and families by providing accessible, creative and high-quality legal assistance, and working collaboratively for systemic change. Melanie is also a board member of its sister organization, Community Legal Services (CLS), and co-chairs the CLS/PLA Development Committee. 

Congratulations to Michael Turner (Philadelphia, PA) on being inducted as a Fellow into the International Academy of Trial Lawyers. The Academy’s purpose is to cultivate the science of jurisprudence, promote reforms in the law, facilitate the administration of justice, and elevate the standards of integrity, honor and courtesy in the legal profession. Membership in the Academy is highly selective and offered only to lawyers who have demonstrated skill and ability in jury trials, trials before the court, and in appellate practice, and to those who have attained the highest level of advocacy.

Congratulations to Kacey Wiedt (Harrisburg, PA) on his selection to the Central Penn Business Journal’s 2024 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. Learn more here
 

PUBLISHED ARTICLES

Kimberly Berman and Gabrielle Wright (both of Fort Lauderdale, FL) authored the article, “Where Are We Now? Punitive Damages Claims in Fla. 2 Years Post-Interlocutory Review Rule Change,” which appeared in the Daily Business Review. Read the article here. 

Dana Gittleman’s and Tim Ventura’s (both of Philadelphia, PA) article “Words Matter: Shielding Against UTPCPL Claims with Subjective Verbiage” was published on March 14, 2024, on PLUSBlog.com. You can read their article here.  

Dana Gittleman also authored the article “Pennsylvania Strengthens Application of One-Year Statute of Repose Under Pennsylvania Home Inspection Law,” appearing in the April 30, 2024, issue of PLUSBlog.com. You can read her article here.

Writing for CLM Magazine, Jessica Wojcik Gordon (Mount Laurel, NJ) and Michelle Leighton, AIC, partner and national claim advocacy and consulting leader at Conner Strong & Buckelew, dive into the rise of artificial intelligence and its impact on workers’ compensation claims handling. Read their article here

Estelle McGrath’s (Pittsburgh, PA) article “Lessons from Accountant’s Age Discrimination Suit” was published in the Spring 2024 issue of the Pennsylvania CPA Journal. You can read her article here.

Jack Slimm’s and Jeremy Zacharias’ (both of Mount Laurel, NJ) article “Strategic Defenses to Appellate Malpractice Claims” was published on PLUSBlog.com on April 19, 2024. Read their article here.

Alesia Sulock and Josh J.T. Byrne (both of Philadelphia) published two articles recently. Their article “Risk Management in the Practice of Law” was published on February 27, 2024, on AttorneyProtective.com, which you can read here. On March 21, 2024, their article “Restricting Restrictions: When Attorney Employment Agreements Run Afoul of the Rules of Professional Conduct,” was published in The Legal Intelligencer. You can read this article here.

Ashley Toth (Mount Laurel, NJ) authored “Best Practices for Service Animals in the Workplace,” which appeared in the New Jersey Law Journal’s Employment Law Supplement. You can read the article here
 

SPEAKING ENGAGEMENTS

Mohamed Bakry (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Mohamed, who also served as a host of the conference, was joined in a panel to discuss trending issues in leadership. 

Mohamed Bakry and Christina Gonzales (both of Philadelphia) spoke at the 2024 DRI Life, Health, Disability, and ERISA Seminar in Philadelphia. Their panel delved into the intricacies of modern law firms and their clients in a thought-provoking dialogue, unveiling the art of integrating innovative methodologies with well-established practices in order to cultivate diverse, high-performing teams. 

Heather Byrer Carbone and Linda Wagner Farrell (both of Jacksonville, FL) presented the webcast, “Motions to Dismiss and Motions for Summary Final Order,” for the Florida Bar Workers’ Compensation Section.

Buck Buchanan, Jessica Wachstein, Jeremy Zacharias and Zac Ottoson hosted the Rutgers Law Minority Student Program (MSP) for an interviewing skills workshop held in our Philadelphia office. The program featured a panel presentation regarding strategies for maximizing summer clerkship interviews, as well as how to succeed during a summer clerkship program. The event was the second in a series of events the firm is hosting in collaboration with the Rutgers MSP program.

Josh J.T. Byrne (Philadelphia, PA) co-presented at the Montgomery Bar Association Women in the Law Committee’s seminar “The Importance of Civility in the Law.” This program provided attendees with the tools and information they need to ensure they are practicing with civility, responsibility, and professionalism while also avoiding ethical issues as they navigate cases with challenging opposing counsel, parties, and others.

Our Securities and Investments Professional Liability Practice Group took center stage at the Independent Broker Dealer Consortium, LLC 2024 Annual Risk Management Conference. Samuel Cohen (Philadelphia, PA), chair of the practice group, joined a panel to discuss protecting customers; Gerard Kowalski (Philadelphia, PA) explained the new expungement rule; and Ryan Friel (Philadelphia, PA) explored the differences between advisors and registered representatives, and the types of claims each face. 

James Cole (Philadelphia, PA) co-presented “This Is Jeopardy!!! Unfair Claims Practices” at the Property & Liability Resource Bureau’s 2024 Claims Conference in Boston. He also presented “Untying Tangle Titles – How Property Insurance Drives Fraud” at the 2024 Pennsylvania Insurance Fraud Conference. This annual conference is hosted by the International Association of Special Investigation Units’ Delaware Valley and Greater Pittsburgh Chapters and the Commonwealth of Pennsylvania’s Insurance Fraud Prevention Authority.

Jack Delany (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Jack and fellow speakers addressed how challenges, problems, and even disasters at trial can be transformed into opportunities and, ultimately, successful outcomes for clients. 

Elizabeth Ferguson (Jacksonville, FL) co-presented “The Ethics Escape Room: Finding the Way Out of Insurance Dilemmas” at CLM’s Annual Conference in San Francisco. Elizabeth also moderated a panel entitled “Views from the Bench: Complex Construction Litigation – Trials and the Run-Up” at The Florida Bar Real Property, Probate and Trust Law Section’s Construction Law Institute in Orlando. She also spoke on “Design Liability” at the Construction Review Course that runs alongside the CLI. 

Robert Fitzgerald (Mount Laurel, NJ) was a panelist for a presentation at the New Jersey Self Insurers’ Association Annual Conference in Atlantic City. Bob joined a group of industry professionals to discuss hot topics in workers’ compensation.

Ray Freudiger (Cincinnati, OH) gave a presentation to members of the Housing and Development Law Institute (HDLI) General Counsel Forum on “The Challenges in Administering Section 8 Project Based Vouchers.” Joining Ray in the presentation was the CEO and General Counsel for Dayton Metropolitan Housing Authority. They discussed the jury defense verdict we won in federal court which was upheld by the 6th Circuit Court of Appeals. 

John Hare (Philadelphia, PA) presented the annual Appellate Review seminar for the Pennsylvania Coalition for Civil Justice Reform.

Kevin Hexstall (Philadelphia, PA) was a featured speaker at the Perrin Conferences asbestos conference. Kevin was part of a panel that presented “The Top Emerging Trends in Asbestos Litigation.” Kevin and panelists addressed filing trends, hot and emerging jurisdictions, and defense-plaintiff coordination. 

Rachel Insalaco (Scranton, PA) presented at the National Business Institute’s CLE, “Pennsylvania Police Liability Claims: A Primer.” Rachel’s presentation addressed qualified, absolute, and state tort immunity implications in cases concerning police departments.

Matthew Keris (Scranton, PA) participated in the following presentations: 

  • At the National Medical Professional Liability Association’s Dental Workshop in Savannah, Georgia, Matt presented “The New Liability Target: Forensic Patient Record Interactions.” 
  • At the American Legal Connections webinar, he presented “Voir Dire of an EMR/Audit Trail Expert.” 
  • At the DRI IRT Meeting in Chicago, IL, he was co-moderator of a roundtable on Social Inflation. 
  • At the Hospital Insurance Forum Annual Meeting in Scottsdale, AZ, he co-presented “Advice for the Efficient Integration of AI Into Medicine.” 
  • At the AALNC (American Association of Legal Nurse Consultants) Annual Forum, he presented “Artificial Intelligence in Healthcare.” 
  • At the American Association of Legal Nurse Consultants annual Forum, held this year in Pittsburgh, PA, he presented “Artificial Intelligence in Healthcare: An Introduction.”

Michael Packer (Fort Lauderdale, FL) was a featured speaker at the ALM/Property Casualty 360 Complex Claims & Litigation Forum in Las Vegas. In “Under Oath: What Claims Professionals Need to Know to Conduct an Effective EUO,” Mike focused on the most effective ways to prepare for and efficiently conduct Examinations Under Oath in both the personal lines and commercial lines context. 

Jeffrey Rapattoni (Philadelphia, PA) presented an Ethics session at the Rocky Mountain Association of Special Investigators Annual Insurance Fraud Conference.

Bradley Remick (Philadelphia, PA) and his son, Griffin Remick, presented a product liability update at the Dispute Resolution Institute’s annual Personal Injury Potpourri CLE.

Andrea Rock (Philadelphia, PA) was a panelist for a webinar hosted by the Workers’ Compensation Section of the Philadelphia Bar Association. In “Got Pain? How to Recognize and Assess Pain Including the Identification of Pain Generators in Work Injuries and Novel Treatment Options,” the panelists discussed the issues with pain generators, treatment options and their interaction in workers’ compensation litigation. 

In Season 2 of his podcast with the Professional Liability Underwriting Society, David Shannon (Philadelphia, PA) chatted with guest Stephen Ramey about the cybersecurity landscape for 2024. David and Stephen reflected on the persisting threat of ransomware and citing prevalent groups like LockBit, ALPHV/BlackCat, and Akira. Listen now! https://lnkd.in/eCwUwQdN 

Anthony Williott and Paul Krepps (both of Pittsburgh, PA) participated in a Mock Trial as a part of the American Association of Legal Nurse Consultants annual Forum. Paul participated in an exercise that demonstrated to Legal Nurse Consultants how an expert witness is prepared for deposition and trial by an attorney. Additionally, he served as the “judge” for the mock trial. In the trial, Tony defended the interests of “Hometown Hospital” in a case that involved the failure to timely diagnose sepsis in a patient. The case was designed to highlight the role of the Legal Nurse Consultant in medical malpractice cases.

Jeremy Zacharias (Mount Laurel, PA) participated in a panel discussion for Drexel University’s LeBow College of Business to prospective students joining the legal profession. Jeremy spoke about factors to consider in applying to law school, private practice, as well as strategies to effectively maximize law school performance. Jeremy is a recurring speaker at both Rutgers Law and Drexel University on professionals and topics, including ethics, the Rules of Professional Conduct, and the business of law.

Lary Zucker, Sara Mazzolla (both of Mount Laurel, NJ) and Alicia Caridi (Tampa, FL) presented a legal roundtable at the Roller Skating Association International’s annual convention. 


 

Defense Digest, Vol. 30, No. 2, June 2024, 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. © 2024 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. 

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

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.

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.