requiring expert testimony as to a nurse's negligence because the claim involved matters outside the common knowledge and experience of jurors on a nurse's professional skill and judgment
How later courts described this case
- requiring expert testimony as to a nurse's negligence because the claim involved matters outside the common knowledge and experience of jurors on a nurse's professional skill and judgment
- a Civ.R. 56(F) continuance motion must be properly supported by the required affidavit
- the plaintiff must have evidence that the defendant was unskillful or negligent and his want of skill or care caused injury to the plaintiff
Written by the judges who cited it.
The opinion
[Cite as Bell v. Ohio Living Communities, 2026-Ohio-848.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
SAUNDRA BELL, AS ADMINISTRATOR OF THE
ESTATE OF KATHLEEN SANDERSON
AND PERSONAL REPRESENTATIVE OF THE
ESTATE OF KATHLEEN SANDERSON,
DECEASED,
Plaintiff-Appellant,
v.
OHIO LIVING COMMUNITIES dba AND aka
OHIO LIVING PARK VISTA, et al.
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 25 MA 0066
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2022 CV 00076
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Louis C. Schneider, Thomas Law Offices, PLLC, for Plaintiff-Appellant and
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Atty. Stephen B. Yurik, Owens & Yurik, LLC, for Defendant-Appellee, Ohio Living
Communities and Atty. Ryan K. Rubin, Atty. Kyle W. Rea, Lewis Brisbois Bisgaard &
Smith LLP, for Defendant-Appellee, Vivian Starr, D.O.
Dated: March 12, 2026
Robb, J.
{¶1} Plaintiff-Appellant Saundra Bell as Administrator of the Estate of Kathleen
Sanderson appeals the decision of the Mahoning County Common Pleas Court granting
summary judgment in favor of Defendant-Appellees Ohio Living Communities dba Ohio
Living Park Vista and Dr. Vivian Starr. Appellant contends the trial court failed to consider
important filings and erred in striking her expert’s report. She argues Appellees failed to
meet their initial summary judgment burden and alternatively concludes she met her
reciprocal burden. For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} The decedent died on December 8, 2018. Just under a year later,
Appellant’s first suit setting forth medical claims was filed against Appellees. In that
action, the trial court entered a dismissal without prejudice due to Appellant’s failure to
file the affidavit of merit required by Civ.R. 10(D), despite being granted a 90-day
extension. Mahoning C.P. No. 2019 CV 2464 (4/17/20 J.E.).
{¶3} Five days later, Appellant refiled the case, accompanied by a nurse’s
affidavit. Appellees moved to dismiss this second action due to the failure to attach an
affidavit of merit from a physician. Instead, the trial court granted Appellant a 60-day
extension, and she filed an affidavit of merit signed on August 13, 2020 by Dr. Perry
Starer. The court then issued an October 15, 2020 scheduling order wherein Appellant
was provided seven months to disclose an expert report. When Appellant did not disclose
an expert report by the deadline, Appellees filed summary judgment motions based on
this failure. Before the trial court could rule on summary judgment, Appellant voluntarily
dismissed the action. Mahoning C.P. No. 2020 CV 776 (8/27/21 Vol.Dis.).
{¶4} Appellant refiled the action, resulting in the final trial court case number.
Mahoning C.P. No. 2022 CV 76 (1/13/22 Complaint). Initially, the trial court granted
Case No. 25 MA 0066
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judgment for Appellees after finding the statute of limitations for a medical claim expired
by the time the third complaint was filed because the saving statute can be used only
once to refile after the expiration of the limitation period. Appellant appealed the decision,
and the case was stayed pending an Ohio Supreme Court decision on the same issue.
Bell v. Ohio Living Communities, 2024-Ohio-4843, ¶ 8, 12 (7th Dist.).1 After the Supreme
Court held the relevant version of the saving statute did not prohibit multiple uses, we
reversed the trial court’s judgment and remanded for further proceedings. Id. at ¶ 26-33,
applying McCullough v. Bennett, 2024-Ohio-2783 (where the Supreme Court ruled on
R.C. 2305.19(A)’s saving statute).
{¶5} After our remand, the trial court held a status hearing and then issued a
scheduling order with deadlines. Appellant was ordered to complete all discovery and
disclose her expert narrative report on or before March 1, 2025. The dispositive motion
deadline was set for April 1, 2025, and Appellees’ deadline for any opposing expert
reports was set for May 1, 2025. (10/31/24 Mag. Order).
{¶6} More than three weeks after Appellant’s deadline expired, each Appellee
filed a timely summary judgment motion based on Appellant’s failure to timely disclose an
expert report. (3/24/25 & 3/25/25 Motions). They urged this failure justified prohibiting
Appellant from presenting testimony from an expert. They emphasized her case was
based on medical claims that were unrecoverable as a matter of law without expert
testimony and concluded there thus was no genuine issue of material fact.
{¶7} It was noted Appellant failed to seek an extension of the deadlines and
never took any depositions. Pointing out this was a refiled action on a medical claim,
Appellees directed the court to the same deficiency in the 2020 lawsuit, which Appellant
dismissed after their summary judgment motions raised this same failure to provide an
expert report before the scheduling order deadline. (They also reminded the court of
dismissing Appellant’s 2019 suit after she failed to file an affidavit of merit).
{¶8} On April 7, 2025, Appellant filed a motion to extend the deadlines for
discovery, expert disclosure, and dispositive motions. She attached an expert report from
Dr. Perry Starer dated two days prior and said she was seeking an extension so the report
1 Various notices of appeal were filed, resulting in 22 MA 106 (dismissed for lack of a final appealable
order), 22 MA 131, and 23 MA 2 (with the latter two appeals consolidated). Bell, 2024-Ohio-4843, at ¶ 10-
11 (7th Dist.).
Case No. 25 MA 0066
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would be considered timely filed. She said Appellees still had time to conduct discovery
or depose her expert. She contended they would not be surprised by her late disclosure
because her expert was the same physician who signed the affidavit of merit attached to
her complaint, and she claimed the opinions in the expert report reflected those in the
one-page affidavit of merit.
{¶9} On the same day of the extension request, Appellant filed her opposition to
Dr. Starr’s motion for summary judgment. The next day, she filed her opposition to Ohio
Living’s motion for summary judgment, noting her opposition was “almost exactly the
same” as the one she filed in response to Dr. Starr’s motion. Although Appellant relied
on the untimely expert report to oppose summary judgment, it was not notarized or
accompanied by an incorporating affidavit.
{¶10} Appellant’s opposition to summary judgment also said the medical records,
policies, and photographs produced in discovery showed a genuine issue of material fact.
She inserted into her argument a photograph of the decedent’s wound, progress notes
from a few dates, and a portion of a nursing policy on repositioning said to be from Ohio
Living, all unauthenticated. She then attached as exhibits the August 13, 2020 affidavit
of merit filed with the complaint, the unauthenticated April 5, 2025 expert report, and an
unauthenticated point of care history on bed mobility and bed movement.
{¶11} Dr. Starr’s April 14, 2025 reply in support of summary judgment objected to
the expert report because it was not authenticated by affidavit and was untimely in any
event. She additionally pointed out the affidavit of merit attached to the complaint did not
satisfy the expert report requirement.
{¶12} At the same time, Dr. Starr filed a response in opposition to Appellant’s April
7 motion to extend the deadlines, pointing out Appellant did not seek the extension until
more than five weeks after her March 1, 2025 expert report deadline. She also waited
until two weeks after the March 24 and 25 summary judgment motions by the defense
and after the April 1 dispositive motion deadline. Dr. Starr’s filing pointed to the same
non-compliance and delay issues in the 2020 lawsuit. It was also noted Appellant took
no depositions during discovery in any case.
{¶13} On April 15, 2025, the trial judge denied Appellant’s motion to extend the
deadlines. The court mentioned Appellant’s voluntary dismissal of the 2020 lawsuit
before the court could rule on pending summary judgment motions, the length of the time
Case No. 25 MA 0066
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the present case had been pending, and the existence of the deadlines since the October
31, 2024 scheduling order entered after a status hearing. The court said it was exercising
its broad discretion in the management of its docket and the efficient administration of
justice to deny the extension and maintain the litigation deadlines.
{¶14} Appellee Ohio Living then filed its reply in support of summary judgment,
raising arguments similar to those in Dr. Starr’s reply on the untimely and unauthenticated
expert report and citing case law allowing summary judgment where the plaintiff fails to
provide an expert report on a medical claim. It was pointed out the affidavit of merit
attached to the complaint contained bare conclusory allegations, which were sufficient for
filing a medical claim but not sufficient to qualify as an expert report.
{¶15} On April 25, 2025, Appellant filed two notices in an attempt to authenticate
documents cited in her opposition to summary judgment (seeking to avoid the arguments
about opposing summary judgment without proper Civ.R. 56 evidence). With the first
notice, she attached answers to her interrogatories and attached her requests for
production of documents (which were electronically provided to her in discovery by Dr.
Starr in May 2021 and by Ohio Living in May 2021 and January 2025). She then attached
documents cited in her opposition to summary judgment: a page of progress notes
(showing some of the notes she cited); the same two-page point of care history; and a
complete nursing policy.
{¶16} With the second notice, she attached the prior unsworn expert report and
her expert’s new affidavit containing the expert report (notarized2 remotely the same day
as the filing). Appellees moved to strike the untimely expert report, citing case law on the
topic. They pointed out the judge already denied Appellant leave to extend the deadlines
and the summary judgment briefing had concluded; thus, Appellant was ignoring (and
asking the magistrate to ignore) the judge’s denial of her extension request (which was
not made until after Appellees’ summary judgment motions).
2 We note: the notary’s name is typed in non-cursive font under a blank signature line; the required
disclosure of the remote notary’s physical location apparently relies on the location disclosed in the
introduction to the physician’s affidavit; the notarial certificate, if acting as an electronic seal, does not
contain the required statements “Electronic Notary Public” and “Commonwealth of Virginia”; and any seal
must be photographically reproducible. Va.Code 47.1-16 (and directing standards to be implemented); A
Handbook for Virginia Notaries Public (Rev. 7/1/24) (Office of the Secretary of the Commonwealth of
Virginia).
Case No. 25 MA 0066
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{¶17} On May 1, 2025, Appellant filed a motion for leave to file an attached
surreply. She argued Appellees presented no summary judgment evidence disputing the
claim in her complaint. She relied on the untimely expert report (now notarized) while
noting the non-oral summary judgment hearing date (set for the next day) had not yet
passed. She also cited to her untimely attempt to authenticate the other documents cited
in her original opposition to summary judgment.
{¶18} At the same time, Appellant filed the affidavit of her attorney, labeled as a
Civ.R. 56(F) affidavit. As for the reasons (for a continuance, which are required to be set
forth under the rule), counsel recited some procedural history and prior arguments,
including the theory Appellees had sufficient notice of Appellant’s expert and the expert’s
opinion due to that expert’s affidavit of merit (attached to the complaint as required by
Civ.R. 10). Counsel indicated he only provided the unauthenticated report (in opposition
to summary judgment on April 7, 2025) and then the authenticated report (on April 25,
2025) in order to appease Appellees upon reading their arguments. He also noted
Appellees knew about the other documents he cited, as Appellees provided them in
discovery.
{¶19} On May 8, 2025, the magistrate issued the decision granting summary
judgment to Appellees. First, the decision granted Appellees’ motion to strike Appellant’s
expert report and denied Appellant’s motion for leave to file a surreply. In doing so, the
magistrate recited how Appellant already asked for an extension of the deadlines for
discovery, expert disclosure, and summary judgment filings in a motion (with an expert
report attached). The magistrate then pointed out the trial judge already denied
Appellant’s motion for such extension while clearly opining an extension would operate
to the great detriment and prejudice to the defense and further delay an old case on the
court’s docket. The magistrate concluded to permit a surreply (which is not called for by
rule) or otherwise allow the submission of additional evidence would be in derogation of
the trial judge’s prior ruling and would be extremely prejudicial and a manifest injustice to
Appellees.
{¶20} Next, the magistrate held Appellant cannot recover as a matter of law on
her medical claims against Appellees under the well-established law requiring expert
testimony for a medical claim because Appellant failed to provide an expert report during
discovery and untimely attempts to file a report were rejected. As she could not recover
Case No. 25 MA 0066
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without an expert, it was thus concluded there was no genuine issue of material fact and
Appellees were entitled to judgment as a matter of law.
{¶21} Appellant filed timely objections. First, she argued Appellees did not
present any evidence to meet their initial summary judgment burden and she presented
evidence showing a genuine issue for trial. Second, she said the magistrate should not
have struck the affidavit of her expert because Appellees were not surprised by it, as the
same expert’s affidavit of merit attached to the complaint opined a breach of the standard
of care caused the decedent’s injuries. Third, she complained the magistrate said she
failed to file an opposition to the Ohio Living’s summary judgment motion when she
actually and timely filed such opposition on April 8, 2023 (14 days after Ohio Living’s
motion) at 7:37 p.m. (on the county’s e-filing system).
{¶22} On June 11, 2025, the court entered summary judgment in favor of
Appellees. In the judgment, the trial court overruled Appellant’s objections, adopted the
magistrate’s decision, announced the decision was made into the court’s judgment, and
then recited the entire magistrate’s decision within the judgment.
{¶23} Appellant filed a timely notice of appeal. On appeal, Appellant raises four
assignments of error, which we shall address out of order in order to address the more
procedural arguments first. We renumbered our headings accordingly.
ASSIGNMENT OF ERROR ONE
{¶24} First, we address Appellant’s third assignment of error, which provides:
“THE TRIAL COURT ERRED WHEN IT HELD THAT APPELLANT DID NOT FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE’S DECISIONS AND FURTHER
ERRED WHEN IT HELD THAT APPELLANT HAD NOT FILED A MEMORANDUM IN
OPPOSITION TO APPELLEE OHIO LIVING’S MOTION FOR SUMMARY JUDGMENT.”
{¶25} On the first topic raised in this assignment of error, Appellant points out she
filed timely objections to the May 8, 2025 magistrate’s decision and claims the trial court
did not consider those objections. However, the first paragraph in the court’s entry made
the following announcement:
This case is before this Court on this 5th day of June, 2025 upon
reviewing the Magistrate’s Decision, Findings of Fact and Conclusions of
Law filed May 8, 2025, Plaintiff’s Objections to the Magistrate’s Decision
filed May 22, 2025, Defendant, Vivian Starr D.O.’s Response to Plaintiff’s
Case No. 25 MA 0066
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Objections to the Magistrate’s Decision filed May 8, 2025 and the applicable
law. Upon consideration thereof, the Objections are overruled and the
Magistrate’s Decision is hereby adopted and made the action, judgment and
order of this Court. Therefore, judgment is hereby entered as follows:
(6/11/25 J.E., ¶ 1). This language identifying the objections by date filed and party filing
makes clear the trial court reviewed Appellant’s objections.
{¶26} Moving past these remarks, Appellant’s brief focuses on what appears to
be a stray paragraph in the judgment. Before fully quoting the magistrate’s decision as
the court indicated it would, the second paragraph of the judgment said: “This matter was
considered on the Magistrate’s Decision filed May 8, 2025. After review pursuant to
Civ.R. 53(D)(4), the Court finds that no written objections have been filed and that no
error of law or other defect appears on the face of the Magistrate’s Decision. Therefore,
the Magistrate’s Decision is hereby adopted and made the action, judgment and order of
this Court.” Id. at ¶ 2.
{¶27} The third paragraph then repeated (for the third time), “Therefore, Judgment
is hereby entered as follows:” after which the court recited the three-plus-page decision
of the magistrate in its entirety and thereby entered summary judgment in favor of
Appellees. Id. at ¶ 2. The entirety of the court’s language including the repeated phrase
(“Therefore, the judgment is hereby entered as follows”) suggest the second paragraph’s
recitation that “no written objections have been filed” was an accidental remnant or
miscutting from a template.
{¶28} Most notably, the first paragraph was extremely specific; it did not merely
contradict the second paragraph by declaring that the objections were considered and
were overruled. That is, the first paragraph not only said the objections were reviewed
and overruled but also explicitly identifying the objections by designating the party who
filed them (“Plaintiff”) and the date that party filed them. Likewise, the court pointed to a
“Response to Plaintiff’s Objection to the Magistrate’s Decision” by specifying the date the
response to the objection was filed and by identifing not only the party who filed the
response to objections (“Defendant”) but also expressly naming the person (“Vivian Starr,
D.O.”) who filed that response. Read as a whole, it is apparent the court in fact considered
Appellant’s objections to the magistrate’s decision. Hence, Appellant’s first argument is
overruled.
Case No. 25 MA 0066
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{¶29} The other argument Appellant presents within this assignment of error
concerns the court’s failure to consider her opposition to one of the similar summary
judgment motions. Dr. Starr filed the first summary judgment motion on March 24, 2025.
Ohio Living filed its summary judgment motion the next day. Appellant responded in
opposition to Dr. Starr’s motion on April 7 and waited until the next day to respond to Ohio
Living’s motion. Both of Appellant’s oppositions were timely.
{¶30} Although the trial court reviewed Appellant’s response in opposition to Dr.
Starr’s summary judgment motion and recognized Ohio Living filed a reply in support of
summary judgment, the court believed Appellant filed only one response in opposition,
the one referring solely to Dr. Starr’s motion. This mistaken belief was first expressed by
the magistrate’s decision and then repeated in the trial court’s judgment.
{¶31} Although the court’s observation was incorrect, it was harmless and was not
the basis for the summary judgment in any event. On this topic, the court merely
observed, “It is interesting to note that Plaintiff never filed a memorandum in opposition
to the motion for summary judgment of Defendant, Ohio Living Communities.”
Regardless, the court then concluded Appellant’s failure to timely disclose an expert
report justified the granting of summary judgment to Appellees after striking the untimely
affidavit containing the expert report (issues analyzed under other assignments of error).
{¶32} As Dr. Starr points out, Appellant’s argument about the court’s misstatement
is irrelevant to the summary judgment granted to her; the court expressly recognized
Appellant’s opposition to Dr. Starr’s summary judgment motion. Notably, in Appellant’s
opposition to Ohio Living’s summary judgment motion, she acknowledged the filing was
“almost exactly the same” as the one she filed to oppose Dr. Starr’s motion. Our review
confirms Appellant made the same arguments and presented the same unauthenticated
information in both oppositions. Moreover, both summary judgment motions revolved
solely on the same legal argument concerning the effect of a plaintiff’s failure to timely
disclose an expert report. It is undisputed the court reviewed Appellant’s opposition to
Dr. Starr’s summary judgment motion.
{¶33} By considering her opposition to Dr. Starr’s motion, the trial court effectively
considered the contents of Appellant’s opposition to Ohio Living’s motion and essentially
considered the opposition itself. Due to the admittedly replicated arguments in her two
oppositions and the fact that the trial court entered judgment based on those arguments
Case No. 25 MA 0066
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and not based on the perceived lack of a separate opposition to one of the motions,
Appellant’s argument is not dispositive. Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
{¶34} Appellant’s fourth assignment of error, which we are addressing second,
alleges:
“THE TRIAL COURT ERRED WHEN IT STRUCK THE AFFIDAVIT OF PERRY
STARER, M.D.”
{¶35} A pretrial conference is used to generate a scheduling order, which assists
in fulfilling various purposes, including: to expedite disposition; to establish early and
continuing control so the case will not be protracted because of lack of management; to
discourage wasteful pretrial activities; to improve the quality of the trial through more
thorough preparation; and to facilitate settlement. Civ.R. 16(A)(1)-(5). A trial court’s
scheduling order properly limits the time by establishing timetables with deadlines for
completing discovery, disclosing expert witnesses and their reports, and filing motions
while otherwise facilitating the just, speedy, and inexpensive disposition of the action.
Civ.R. 16(B)(3)(a), (C)(2)(o)-(p); Mahoning C.P. Civ.Loc.R. 2(D)(2).
{¶36} “The party with the burden of proof as to a particular issue shall be required
to first submit expert reports as to that issue.” Civ.R. 26(B)(7)(b); see also Civ.R.
26(B)(7)(e) (the discovery deposition cannot be taken until the expert report is received,
and after receiving a plaintiff’s expert report, the defendant can depose and use the
plaintiff’s own expert instead of hiring an opposing expert). The expert report “must
disclose a complete statement of all opinions and the basis and reasons for them as to
each matter on which the expert will testify. It must also state the compensation for the
expert's study or testimony.” Id. The disclosure of the expert’s identity must include the
expert’s professional address and office telephone number and must be accompanied by
the expert’s report on every material issue. Mahoning C.P. Civ.Loc.R. 3(A)(2)-(3).
{¶37} In general, reports and supplemental reports cannot be filed if there are less
than thirty days before trial unless good cause is shown. Civ.R. 26(B)(7)(c). Yet, in this
action bringing medical claims, the court set Appellant’s expert report deadline for thirty
days before the deadline for dispositive motions (which have function as a substitute for
trial when warranted by Civ.R. 56). It is undisputed the scheduling order was standard
and appropriate.
Case No. 25 MA 0066
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{¶38} The scheduling order controls the course of the action unless the court
modifies it. Civ.R. 16(D). The scheduling order may be modified only upon a showing of
good cause and with the court’s consent. Civ.R. 16(B)(4); Mahoning C.P. Civ.Loc.R.
2(E)(2) (“Such application for extension of time shall set forth the reasons why the
discovery cannot be completed within the time assigned and will also provide the Court
with a time schedule for the completion of the additional discovery.”).
{¶39} “The parties shall submit expert reports and curricula vitae in accordance
with the time schedule established by the Court.” Civ.R. 26(B)(7)(b). If a party is unable
to procure the expert report, the party must inform the court of good faith efforts and
provide a detailed statement on various items related to the expert and anticipated
testimony. Mahoning C.P. Civ.Loc.R. 3(A)(4). We also point to the general rule that if an
extension is not requested until after the expiration of an order’s deadline, then the party
requesting a retroactive extension must show excusable neglect (instead of the mere
good cause for an extension requested prior to the expiration of the deadline). Civ.R.
6(B).
{¶40} “[A] party may not call an expert witness to testify unless a written report
has been procured from the witness and provided to opposing counsel.” Civ.R.
26(B)(7)(c) (with an exception for a treating provider whose records were provided); see
also Civ.R. 37(B)(1) (if a party fails to obey an order to provide discovery, the court may
issue a further order), (b) (prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence), (c)
(striking pleadings), (e) (dismissing the action).
{¶41} Where a rule provides the trial court can establish deadlines and exclude
experts for violations, “the trial court ha[s] discretion to set a deadline by which expert
reports had to be filed, and to enforce its order by excluding all testimony relating to
reports filed past the deadline.” Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged,
15 Ohio St.3d 44, 45-46 (1984). In Paugh, the Supreme Court found no abuse of
discretion in excluding the appellant’s expert from testifying at trial where: the expert
report was not provided by the scheduling order’s deadline; the trial date was continued
after the deadlines expired; the appellant’s subsequent request for a deadline extension
was not addressed by the trial court; and the appellant provided an expert report one
week prior to trial. Id. at 44-46.
Case No. 25 MA 0066
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{¶42} In accordance, a decision to grant or deny a request to extend deadlines or
a motion to strike for filing a document after the expiration of a deadline will not be
reversed absent an abuse of discretion. Id.; Adkins v. Women's Welsh Club of America
Found., 2021-Ohio-1084, ¶ 11 (8th Dist.). An abuse of discretion is more than an error in
judgment but requires a finding that the trial court's attitude was unreasonable, arbitrary,
or unconscionable. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990). “[W]hen applying
this standard, an appellate court is not free to substitute its judgment for that of the trial
judge.” Id.
{¶43} Appellant says a trial court should strive to hear cases on their merits, noting
the rule is to be construed to effect just results. See Civ.R. 1(B) (“These rules shall be
construed and applied to effect just results by eliminating delay, unnecessary expense
and all other impediments to the expeditious administration of justice.”). Appellant
disputes the trial court’s finding that Appellees would be prejudiced by accepting the
untimely affidavit with the expert report. She insists the fact that she used the same
expert who filed the affidavit of merit attached to the complaint meant Appellees were
sufficiently aware this expert would be testifying to the general opinion in the affidavit of
merit that Appellees breached the standard of care regarding the decedent’s treatment.
Elsewhere, Appellant presents an argument about her attorney’s affidavit purportedly filed
under Civ.R. 56(F), which she suggests should have persuaded the court to reopen the
deadlines or otherwise prompted the court to consider her evidence. Despite the various
deadlines passing, she notes the trial date was still months away.
{¶44} In Adkins, a plaintiff bringing a medical claim sought an extension of the
expert report deadline in response to summary judgment motions filed due to the failure
to disclose a report, but the trial court denied the extension finding no reasons were
sufficiently provided. Id. at ¶ 7. When the plaintiff submitted the report anyway, the court
struck it. Id. at ¶ 8, 10. The Eighth District found no abuse of discretion. Id. at ¶ 17, 25.
{¶45} In another cited Eighth District case, the plaintiff responded to summary
judgment by filing a previously-undisclosed expert report four weeks after his deadline.
Wallace v. Halder, 2009-Ohio-3738, ¶ 17 (8th Dist.). Considering the history of the case,
including prior extensions, the reviewing court found the trial court did not abuse its
discretion by excluding the late report from the case and thus from consideration at
summary judgment. Id. at ¶ 21-22.
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{¶46} Likewise, the Sixth District held: “An expert report that is disclosed for the
first time in response to a motion for summary judgment—beyond the expert-report and
discovery deadlines—may be excluded.” Nuckols v. Consol. Rail Corp., 2024-Ohio-1070,
¶ 18 (6th Dist.), citing Roush v. Butera, 2012-Ohio-2506, ¶ 37 (8th Dist.). The court
accordingly concluded: “It was within the discretion of the trial court to strike his untimely
filings and disregard expert reports that were not timely-disclosed.” Id. at ¶ 19. The
Nuckols court also pointed out even if the trial court would have overlooked the initial
untimeliness, the court had no discretion to consider an unauthenticated expert report if
the movant objected to the admissibility of evidence under Civ.R. 56. Id. at ¶ 23-24.
{¶47} The Ninth District, after finding the court did not abuse its discretion in
denying a plaintiff leave to file expert reports, concluded: “Therefore, any expert reports
that [the plaintiff] attempted to submit after the trial court's denial of a continuance were
not properly before the court. Accordingly, the trial court was correct in disregarding the
reports as attached to [the plaintiff’s] response to [the physician’s] summary judgment
motion.” Braden v. Sinar, 2008-Ohio-4330, ¶ 20 (9th Dist.).
{¶48} Here, the stricken affidavit of Appellant’s expert was filed on April 25, 2025,
along with the unauthenticated expert report (which was previously filed late without leave
on April 7, 2025). This was after the passing of her March 1, 2025 deadline for filing an
expert report, after the March 24 and 25 summary judgment motions based on the lack
of expert report, and after the April 1, 2025 dispositive motion deadline. (10/31/24 Sched.
Order). Appellant did not seek an extension before her deadline passed, which would
have required showing of good cause. Civ.R. 6(B)(1); Civ.R. 16(B)(4). Instead, two
weeks after each Appellee filed a summary judgment motion, Appellant opposed the
motions with an unauthenticated expert report and other unauthenticated documents and
filed a motion to extend the already-passed deadlines.
{¶49} This expert report and request for a retroactive extension was five weeks
after the deadline for her expert report. And, this extension request was made
simultaneous with the summary judgment opposition but was not brought under Civ.R.
56(F) and contained no affidavit. See CitiMortgage, Inc. v. Beam, 2014-Ohio-3809, ¶ 19-
22 (7th Dist.) (finding no abuse of discretion in denying motion for extension to oppose
summary judgment motion while pointing out the motion for an extension was facially
deficient due to the absence of the supporting affidavit required by rule); Ramos v. Khawli,
Case No. 25 MA 0066
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2009-Ohio-798, ¶ 38 (7th Dist.) (the motion for additional time must be supported by the
non-movant’s affidavit); see also Carbone v. Austintown Surgery Ctr., L.L.C., 2010-Ohio-
1314, ¶ 28, 31-33 (7th Dist.) (“no error by ruling on the summary judgment motion without
ruling on Carbone's motion to extend discovery. The court's ruling on the summary
judgment motion was not premature, because Carbone failed to avail himself of the
procedures contained in Civ.R. 56(F) . . . an appellant who failed to seek relief under
Civ.R. 56(F) in the trial court has not preserved his rights thereto for purposes of appeal”).
{¶50} As Dr. Starr’s response to the extension request pointed out, Appellant
engaged in similar non-complying and delaying conduct in the 2020 lawsuit (and this case
was a refiling of that suit). Excusable neglect for requesting an extension of expired
deadlines was not alleged or established. See Civ.R. 6(B)(2). In any event, good cause
was not established either. In fact, the reasons expressed or alluded to could reasonably
be classified as willful noncompliance.
{¶51} “Trial judges are entitled to exercise considerable discretion in the
management of the cases on their dockets . . .” In re Disqualification of Sutula, 2004-
Ohio-7351, ¶ 4; see also Paugh, 15 Ohio St.3d at 45-46. The trial judge’s April 15, 2025
decision denying the April 7, 2025 motion for extension was not unreasonable, arbitrary,
or unconscionable, and this decision is not specifically assigned as error on appeal.
{¶52} Although the trial judge denied Appellant’s motion, Appellant filed the expert
affidavit (with report) ten days later without leave of court, prompting Appellees’ motions
to strike. Almost a week later, Appellant’s attorney filed what he characterized as a Civ.R.
56(F) affidavit (a topic relocated here from another section of Appellant’s brief). This
division of the summary judgment rule provides:
Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party's opposition, the court
may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or discovery to be had or may make such
other order as is just.
Civ.R. 56(F). As in other discovery matters, the standard of review of a trial court's
decision on a Civ.R. 56(F) request is whether the court abused its discretion. State ex
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rel. Denton v. Bedinghaus, 2003-Ohio-861, ¶ 31 (where the Ohio Supreme Court found
no abuse of discretion in denying the Civ.R. 56(F) continuance).
{¶53} A court ordinarily considers timing in conjunction with reasons in making
discretionary decisions. Here, the affidavit of counsel was filed after the court denied the
motion for extension of the deadlines. By this time, Appellees had already filed replies to
Appellant’s opposition to their summary judgment motions, and Dr. Starr had filed the
motion to strike Appellant’s untimely expert affidavit with report. Counsel’s affidavit was
essentially filed in response to a motion to strike.
{¶54} Furthermore, the purported Civ.R. 56(F) did not set forth explanations
justifying the delay in obtaining the expert report or in authenticating it or the other
unauthenticated items cited in Appellant’s opposition. See Civ.R. 56(F); see also Ramos
2009-Ohio-798, at ¶ 39 (7th Dist.); Theisler v. DiDomenico, 140 Ohio App.3d 379, 383
(7th Dist. 2000) (a Civ.R. 56(F) continuance motion must be properly supported by the
required affidavit). Instead, it was once again implied the failure to provide an expert
report earlier was a chosen risk taken by Appellant (likely to avoid spending money on an
expert report in hopes of settling instead of proceeding to trial).
{¶55} Rather than attesting to sufficient reasons for the delay, counsel’s affidavit
recited the procedural history and his prior arguments. For instance, he reiterated his
theory that Appellees had sufficient notice of Appellant’s expert from the affidavit of merit
attached to the complaint (as required by Civ.R. 10). He also said Appellees knew about
the other unauthenticated items cited in Appellant’s opposition as those items were
received from Appellees in discovery (which Appellant previously pointed out in her notice
of filing of Appellees’ answers to interrogatory answers and requests for production of
documents). Counsel’s affidavit additionally indicated he only decided to provide an
unauthenticated report and then an authenticated report to appease Appellees upon
reading their arguments (such as the argument against the sufficiency of an affidavit of
merit as a substitute for an expert report). Again, this issue arose in the 2020 suit as well
(before Appellant dismissed that suit and then refiled this suit in 2022).
{¶56} After the filing of the late expert affidavit with report and subsequent Civ.R.
56(F) affidavit, the court granted the request by the defense to strike the expert affidavit.
In doing so, the magistrate pointed out the trial judge already denied Appellant’s motion
for an extension of the deadlines in the April 15, 2025 judgment entry containing the
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judge’s explanation that an extension would operate to the great detriment and prejudice
to the defense and further delay an old case on the court’s docket. The magistrate also
opined a failure to strike the late affidavit would be extremely prejudicial and of manifest
injustice to Appellees. The trial court agreed in overruling Appellant’s objections and
adopted the magistrate’s decision. (6/11/25 J.E.).
{¶57} We point out Appellant’s contention about the court failing to consider the
Civ.R. 56(F) affidavit of counsel was not specified or even mentioned in the objections to
the magistrate’s decision. “An objection to a magistrate's decision shall be specific and
state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). Moreover, the
final order’s failure to specifically voice consideration of counsel’s affidavit (used in an
attempt to justify the untimely provision of an expert affidavit with report) does not equate
to a failure to consider counsel’s affidavit, especially where the same final order also
granted Appellant’s motion to strike the expert’s affidavit with report.
{¶58} Considering the history of this case and the order of the filings after the
motions for summary judgment, it was not unreasonable, arbitrary, or unconscionable to
strike the expert affidavit filed after Appellant was previously denied an extension of the
expert report deadline where that prior extension request was lacking in reasons
establishing excusable neglect or even good cause. See Civ.R. 6(B). Appellant’s
explanations show she chose not to disclose the expert report by the deadline due to a
desire to rely solely on a basic affidavit of merit (with the affidavit of merit being discussed
in the next section). Contrary to the argument presented in this assignment of error, the
trial court did not abuse its discretion in striking the untimely expert’s affidavit with report.
In accordance, this assignment of error is overruled.
ASSIGNMENTS OF ERROR THREE & FOUR
{¶59} Next, we analyze Appellant’s arguments on the summary judgment
burdens. In her first and second assignments of error, which we are addressing last,
Appellant contends:
“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN
FAVOR OF APPELLEES WITHOUT ANY EVIDENCE TO SUPPORT THEIR MOTIONS
FOR SUMMARY JUDGMENT.”
“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN
FAVOR OF APPELLEES WITHOUT CONSIDERING THE AFFIDAVITS AND
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EVIDENCE PRESENTED BY APPELLANT, INCLUDING APPELLANT’S CIV.R. 56(F)
AFFIDAVIT.”
{¶60} Pursuant to Civ.R. 56(B), a party against whom a claim is asserted may
move with or without supporting affidavits for a summary judgment in the party's favor as
to the claim. The next division provides in part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party's favor.
Civ.R. 56(C).
{¶61} This rule then explains, “When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial.” Civ.R. 56(E). “If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.” Id.
{¶62} Accordingly, the summary judgment movant has the initial burden of stating
why the movant is entitled to judgment as a matter of law and pointing to evidence
showing there is no genuine issue of material fact. Byrd v. Smith, 2006-Ohio-3455, ¶ 10,
citing Dresher v. Burt, 75 Ohio St.3d 280, 294 (1996) (plurality). The non-movant then
has a reciprocal burden. Id. The non-moving party’s response must set forth specific
facts showing there is a genuine issue for trial by using Civ.R. 56 evidence and may not
rest upon mere allegations in the pleadings. Id.
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{¶63} Although the court is to consider the evidence in the light most favorable to
the non-movant, summary judgment is not to be discouraged where the non-movant fails
to respond with evidence supporting the essentials of his argument. Leibreich v. A.J.
Refrigeration, Inc., 67 Ohio St.3d 266, 269 (1993). If the non-movant cannot so respond
with such evidence in the time for her opposition to summary judgment, an affidavit
seeking a continuance can be timely filed under Civ.R. 56(F), as discussed in the prior
assignment of error.
{¶64} The material issues of each case depend on the substantive law, and only
outcome-determinative and properly disputed facts will preclude summary judgment.
Byrd at ¶ 12. We consider the propriety of granting summary judgment de novo. Comer
v. Risko, 2005-Ohio-4559, ¶ 8 (where the Ohio Supreme Court reversed the appellate
court and reinstated the trial court's grant of summary judgment).
{¶65} Appellant contends Appellees failed to meet their initial summary judgment
burden and thus her reciprocal burden never arose. She says Appellees were not
permitted to discharge their burden with the conclusory statement that she had no
evidence to support her medical claim and alleges they failed to point to portions of the
record showing a lack of genuine issues for trial. Pointing out the summary judgment
evidence relevant to a movant includes the pleadings, she emphasizes the expert’s
affidavit of merit attached to her complaint. She concludes Appellees were required to
present some Civ.R 56 evidentiary material, such as an expert affidavit denying their
negligence, in order to shift the burden to her as the non-movant.
{¶66} Appellant highlights the following observation by the Dresher plurality: “a
moving party does not discharge its initial burden under Civ.R. 56 simply by making a
conclusory assertion that the nonmoving party has no evidence to prove its case. The
assertion must be backed by some evidence of the type listed in Civ.R. 56(C) which
affirmatively shows that the nonmoving party has no evidence to support that party's
claims.” Dresher, 75 Ohio St.3d at 293. We note her oppositions to summary judgment
did not specifically argue Appellees failed to meet their initial burden.
{¶67} Furthermore, the Dresher Court additionally stressed: “[T]here is simply no
requirement that a party who moves for summary judgment must support the motion with
affidavits negating the opponent's claims . . . Indeed, there is no requirement in Civ.R. 56
that the moving party support its motion for summary judgment with any affirmative
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evidence, i.e., affidavits or similar materials produced by the movant.” (Emphasis
original.) Id. at 292. This is because the movant can inform the trial court of its legal
argument and point to portions of the record already before the court, including the non-
movant’s pleading (and the non-movant’s failures). See id. at 292-293.
{¶68} Accordingly, Appellees argue their summary judgment motions pointed to
the medical claims in Appellant’s pleading, to the deadlines in a court order, and to the
law requiring a medical claim to be established by expert testimony. Moreover, their
motions specifically asked the trial court to bar any future attempt by Appellant to present
expert testimony due to her failure to provide an expert report by the deadline imposed
by court order. From this, they conclude the court properly barred untimely attempts to
add an expert report, which justified summary judgment as a matter of law because a
medical claim cannot legally proceed to trial without expert testimony.
{¶69} In a medical claim case, “[t]he issue as to whether [the defendant] has
proceeded in the treatment of a patient with the requisite standard of care and skill must
ordinarily be determined from the testimony of medical experts.” Bruni v. Tatsumi, 46
Ohio St.2d 127, 130 (1976) (the plaintiff must have evidence that the defendant was
unskillful or negligent and his want of skill or care caused injury to the plaintiff); see also
Ramage v. Central Ohio Emergency Serv. Inc., 64 Ohio St.3d 97, 103-104 (1992)
(requiring expert testimony as to a nurse's negligence because the claim involved matters
outside the common knowledge and experience of jurors on a nurse's professional skill
and judgment); R.C. 2305.113(E)(3) (medical claim includes various actions against a
nursing home and its employees).3
{¶70} Without an expert, “any allegation of negligence remains unspecified . . .
[and] [w]here the plaintiff fails to present expert testimony that a physician breached the
applicable standard of care and that the breach constituted the direct and proximate
cause of the plaintiff's injury, a court may enter summary judgment in favor of the
defendant-physician.” Armeni v. Aromatorio, 2012-Ohio-1500, ¶ 32-34 (7th Dist.).
3 A medical claim includes: claims arising out of the medical diagnosis, care, or treatment or claims arising
out of the plan of care prepared for a resident of a home and either the claim results from acts or omissions
in providing medical care or the claim results from the hiring, training, supervision, retention, or termination
of caregivers providing medical diagnosis, care, or treatment. R.C. 2305.113(E)(3),(c). It also includes
claims arising out of skilled nursing care or personal care services provided in a home pursuant to the plan
of care, medical diagnosis, or treatment. R.C. 2305.113(E)(3)(e).
Case No. 25 MA 0066
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{¶71} An affidavit of merit attached to a complaint containing a medical claim is
simply required to say the affiant reviewed all medical records available to the plaintiff on
the allegations and based on the affiant’s familiarity with the applicable standard of care,
the standard was breached by the defendants, which caused injury to the plaintiff. Civ.R.
10(D)(2)(a). Consistent with this rule, the one-page affidavit of merit attached to
Appellant’s complaint contained only these basic components by stating the affiant knew
the standard of care, reviewed the medical records, and came to an opinion to a
reasonable degree of medical probability that Appellees breached the standard of care in
failing to prevent the infection and wounds that caused the decedent’s injuries and
contributed to her death.
{¶72} This rule specifically warns: “An affidavit of merit is required to establish the
adequacy of the complaint and shall not otherwise be admissible as evidence or used for
purposes of impeachment.” (Emphasis added.) Civ.R. 10(D)(2)(d). Moreover, multiple
courts have decreed the basic affidavit of merit required for asserting a medical claim
does not constitute evidence under Civ.R. 56(C) and thus does not create a genuine issue
of material fact to defeat a motion for summary judgment. Schumacher v. Patel, 2023-
Ohio-4623, ¶ 22-26, 32 (10th Dist.); Kinasz v. Diplomat Healthcare, 2016-Ohio-2949, ¶
10-11 (8th Dist.); Babcock v. Albrecht, 2012-Ohio-1129, ¶ 29-44 (11th Dist.), Nye v. Ellis,
2010-Ohio-1462, ¶ 36 (5th Dist.); White v. Summa Health Sys., 2008-Ohio-6790, ¶ 19-22
(9th Dist.); Braden, 2008-Ohio-4330, at ¶ 20 (9th Dist.). “The affidavit of merit merely
establishes the adequacy of the complaint. It does not constitute evidence in support of
a plaintiff's claim, nor would the assertions therein ever be adequate to prove the merits
of a medical liability claim.” White at ¶ 22.
{¶73} Likewise, we have explained, “the affidavit of merit is for the purposes of
filing a medical malpractice only and is not otherwise to be used as admissible evidence.
Thus, it cannot be used as summary-judgment evidence.” Ramos, 2009-Ohio-798, at ¶
86 (7th Dist.), citing Civ.R. 56(E) (requiring the summary judgment affidavit to set forth
facts that are admissible in evidence). Further, “an affidavit used for purposes of avoiding
summary judgment is required to list the facts and not merely state final conclusory
opinions on liability.” Id. at ¶ 87 (where the physician added his own affidavit and a
request for deemed admissions in moving for summary judgment), comparing Civ.R.
56(E) to Civ.R. 10(D)(2)(a)(i) through (iii). “When the affidavit of merit contains only the
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bare allegations required by Civ.R. 10(D)(2), it is insufficient to oppose summary
judgment.” McHugh v. Fraser, 2019-Ohio-3733, ¶ 45 (7th Dist.).
{¶74} As stressed by Appellees, the affidavit of merit relied on by Appellant
contained the bare assertions required by Civ.R. 10(D)(2), was not an export report, and
was insufficient to oppose summary judgment. As for other evidence submitted by
Appellant, where an objection to unauthenticated summary judgment evidence is made,
a court cannot consider the evidence presented in opposition to summary judgment. See,
e.g., Civ.R.56(C); State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 2009-Ohio-2871, ¶
10, 17 (where the Supreme Court noted a trial court can consider evidence that does not
qualify under Civ.R. 56 if there is no specific objection). Here, Appellant’s opposition to
summary judgment relied on unauthenticated documents including an unauthenticated
expert report (disclosed for the first time after the deadline closed), and Appellees
objected to the evidence. See prior sections above. Thus, Appellant’s second
assignment of error about her reciprocal burden being met fails.
{¶75} Nonetheless, the threshold issue is whether a plaintiff’s failure to disclose
an expert report in discovery justifies the granting of summary judgment to a defendant-
movant whose motion relies on the pleadings (the complaint raising a medical claim) and
the plaintiff’s failure to provide the expert report before the disclosure deadline or before
the deadline for dispositive motions (as established by the record, including Appellant’s
acknowledgement in opposition) where the trial court denied the plaintiff’s late extension
request and struck the untimely expert report.
{¶76} Unlike a nonbinding and nonmedical case cited by Appellant, the case at
bar is not about a plaintiff’s failure to comply with a document production request in
discovery where it was observed the defense should have filed a motion to compel before
seeking summary judgment on the failure. Bohl v. Travelers Ins. Group, 2005-Ohio-963,
¶ 18 (4th Dist.) Here, the court already set an order with a deadline specifically requiring
Appellant’s expert report, and this was a medical case requiring expert testimony to justify
proceeding to trial.
{¶77} We have generally held: “When the plaintiff fails to present expert testimony
that the defendant physician/dentist breached the applicable standard of care and that
the breach constituted the direct and proximate cause of the plaintiff's injury, summary
judgment in favor of the defendant-physician is appropriate.” McHugh, 2019-Ohio-3733
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at ¶ 26 (7th Dist.) (where there was an expert deposition and report, but they were
insufficient on the elements), citing Armeni, 2012-Ohio-1500 at ¶ 34 (7th Dist.) (where the
movant-physician attached his own affidavit); see also Click v. Georgopoulos, 2009-Ohio-
6245, ¶ 7, 20-22 (7th Dist.) (finding the plaintiff failed to produce an expert opinion as
required for a medical claim where she failed to provide an expert report by the deadline
and where the physician moved for summary judgment on this basis while also providing
his own affidavit and an autopsy report).
{¶78} In a case cited by Appellees, the defendants moved for summary judgment
on the basis that the plaintiff failed to produce an expert report and thus could not
establish a prima facie claim for medical negligence while the plaintiff’s appeal relied on
the previously-filed affidavit of merit in arguing summary judgment was improper. Kinasz,
2016-Ohio-2949 at ¶ 5 (8th Dist.). In setting forth the law, the appellate court explained,
“A party seeking summary judgment bears the initial burden of demonstrating an absence
of genuine issues of material fact concerning an essential element of an opponent's case.
Id. at ¶ 13, citing Dresher 75 Ohio St.3d at 292. “A moving party may satisfy this burden
by showing an absence of evidence to support the nonmoving party's case.” Id. The
appellate court then found the trial court’s summary judgment decision implicitly excluded
any expert testimony due to the failure to timely disclose an expert report. Id. at ¶ 18-22.
{¶79} The Kinasz court concluded the movants met their initial summary judgment
burden to show no genuine issues of material fact exist on essential elements of the
plaintiff’s medical claim because the movants pointed to the lack of a timely report and
legally argued that without any expert testimony, the plaintiff would be unable to establish
a prima facie case of medical negligence at trial (standard of care, breach, and how it
proximately caused the injury). Id. at ¶ 21-22 (and then found the plaintiff failed to meet
the non-movant’s reciprocal burden by responding with evidence in opposition to the
summary judgment motion).
{¶80} In the main case cited by Appellees, the defendants (physicians and a
nursing home) moved for summary judgment on the plaintiff’s medical claim by citing the
expiration of the plaintiff’s deadline for filing an expert report without an expert report
being produced. Adkins v. Women's Welsh Club of America Found., 2021-Ohio-1084, ¶
7 (8th Dist.). The plaintiff immediately moved for an extension of time to submit her expert
report in order to oppose summary judgment, citing Civ.R. 56(F) and 6(B). Although the
Case No. 25 MA 0066
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trial court denied the extension request finding insufficient reasons, the plaintiff
disregarded the judgment and filed the expert report, prompting a motion to strike. Id. at
¶ 8. The trial court struck the report and granted judgment as a matter of law because
the Civ.R. 56 record contained no expert testimony specifying the standard of care, the
failure to meet the standard of care, or the causal link between the negligence act and
the injuries. Id. at ¶ 9 (also pointing out the stricken report was not properly submitted
through an affidavit in order to properly oppose to summary judgment).
{¶81} After affirming the exercise of discretion to strike the untimely report, the
Adkins court affirmed the entry of summary judgment as follows:
Without an expert report, which was properly excluded by the trial court, and
no argument that the medical malpractice claims fall under the exception to
the medical expert requirement, appellant failed to satisfy her reciprocal
burden of presenting evidence to demonstrate that a genuine issue of
material fact exists, or that an exception to the general rule requiring expert
testimony exists in this case..
Id. at ¶ 25, quoting Kinasz, 2016-Ohio-2949, at ¶ 22 (8th Dist.). This is a consistent
position taken by the Eighth District. Id.; see also Myers v. John A. Hudec Cleveland
Dental Ctr. Inc., 2022-Ohio-80, ¶ 14 (8th Dist.) (finding the movant meets the initial
summary judgment burden by pointing to the lack of an expert report by the deadline in a
medical claim case). These principles have been adopted by other districts as well.
{¶82} In a cited Tenth District case, the movants argued the non-movant failed to
sufficiently support her medical claims with appropriate expert evidence and was not
permitted to rely on a mere affidavit of merit. Schumacher, 2023-Ohio-4623, at ¶ 10 (10th
Dist.). Because a medical claim requires expert testimony and because Civ.R. 26
precludes expert testimony without a timely report, the Tenth District concluded: “a
plaintiff's failure to produce adequate expert reports to support the elements of the
asserted medical claim may serve as a basis for summary judgment in favor of the
defendant.” Id. at ¶ 21, 35 (and then finding the plaintiff failed to meet her reciprocal
burden). These principles were already well established in the Tenth District. See, e.g.,
Gibson v. Ohio Dept. of Rehab. & Correction, 2019-Ohio-4955, ¶ 5, 12-13 (10th Dist.)
(where the defense moved for summary judgment on a medical claim on the sole basis
that the plaintiff failed to provide an expert report in discovery, the court held: “Because
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expert medical testimony is required to support a medical negligence claim, summary
judgment in favor of the defendant is proper where the plaintiff both fails to produce an
expert report and does not move for and receive a continuance under Civ.R. 56(F).”).
{¶83} Likewise, in a Second District case, the defendant’s summary judgment
motion argued, “because [the plaintiff] had not filed his expert disclosure and reports by
the deadline, he was precluded from using experts at trial, therefore making it impossible
to prove his case.” Haworth v. Roman, 2023-Ohio-3816, ¶ 9 (2d Dist.) (the plaintiff then
disclosed his experts, and the defendant moved to strike as the disclosure was four weeks
after the deadline). After upholding the trial court’s discretion to exclude the expert report
and finding the affidavit of merit attached to the complaint was not an expert report, the
Second District concluded: “because [the plaintiff] was left without an expert witness to
prove his medical malpractice claim, we conclude that the trial court did not err by granting
summary judgment to any of the appellees.” Id. at ¶ 15, 20, 32.
{¶84} Similarly, the Twelfth District upheld summary judgment where the movants
cited to the plaintiff’s failure to submit expert reports by the deadline (after holding the
affidavit of merit attached to the complaint on a medical claim was not an expert report)
Potter v. South, 2025-Ohio-2812, ¶ 9, 34-35 (12th Dist.). The court held: “Because the
failure to produce an expert report bars a party from calling that expert as a witness, see
Civ.R. 26(B)(7)(c), and because the absence of expert testimony bars the [Plaintiffs] from
establishing the elements of medical malpractice, the trial court correctly granted
summary judgment to the Defendants.” Id. at ¶ 31. Disposing of an argument that
summary judgment was too harsh for a discovery sanction, the Twelfth District opined the
entry of summary judgment was “a legal conclusion the trial court was obliged to reach
because the [Plaintiffs’] own conduct (that is, failing to produce an expert report) left them
incapable, as a matter of law, of proving all of the elements of their medical malpractice
claims.” Id. at ¶ 34.
{¶85} We also note an alternative path was mentioned by the Eleventh District,
instead of addressing a plaintiff’s argument that the defendant’s motion for summary
judgment was not supported by Civ.R. 56 evidence (where it merely pointed to the
deadlines in the record, the absence of compliance with the deadlines, and the law on the
requirement of expert testimony for a medical claim). Babcock, 2012-Ohio-1129, at ¶ 8,
13 (11th Dist.). The appellate court pointed out an affidavit of merit is not an expert report
Case No. 25 MA 0066
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and the trial court was permitted to dismiss the case with prejudice due to the dilatory
conduct of failing to file an expert report by the deadline (after considering the entire case
history), regardless of the arguments on summary judgment. Id. at ¶ 18-28, 45 (where
the plaintiff’s motion to vacate argued the defense committed fraud upon the court by
saying there was no expert report where an affidavit of merit was filed).
{¶86} For the first time in Appellant’s reply brief, a case is cited for her argument
that the moving medical defendants cannot rely on the lack of an expert report without
pointing to other summary judgment evidence. In the cited case, the plaintiff missed her
deadline for filing an expert report, the court denied her request for an extension, the
defense moved for summary judgment, and the plaintiff responded by merely filing the
affidavit of merit, which she characterized as an expert report. Eschen v. Suico, 2008-
Ohio-4294, ¶ 4-6, 11-13 (9th Dist.).
{¶87} Initially, the Ninth District upheld the trial court’s discretionary decision to
strike the plaintiff’s filing. Id. at ¶ 11-13. Although the Ninth District specifically agreed
with the trial court’s conclusion that the plaintiff “failed to provide an expert report to
establish her prima facie claim of malpractice,” the appellate court nevertheless
concluded the movants failed to meet their initial burden because they did not provide or
point to Civ.R. 56 evidence. Id. at ¶ 18-21 (rejecting an argument about the pleadings
and opining the hospital and doctor should have filed the doctor’s own affidavit with the
summary judgment motions to provide an expert opinion on the standard of care and the
lack of breach).
{¶88} However, later that year, the Ninth District upheld summary judgment where
the defense-movant did not produce expert testimony in moving for summary judgment
and simply relied on the legal ramifications of the plaintiff’s failure to provide an expert
report in a medical claim case. White, 2008-Ohio-6790, at ¶ 5, 17-25 (9th Dist.) (the
plaintiff also brought an ordinary (non-medical) negligence claim and the motion cited
from the plaintiff’s deposition while noting he could not specify the negligence). As we
pointed out in addressing a prior assignment of error above, the Ninth District first held
the affidavit of merit was not a substitute for an expert report and did not create a genuine
issue of material fact. Id. at ¶ 19-22. Pertinent to this assignment of error, the Ninth
District also made the following legal conclusion: “[The hospital] met its initial Dresher
Case No. 25 MA 0066
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burden by demonstrating [the plaintiff’s] failure to provide such expert testimony.” Id. at
¶ 19.
{¶89} Moreover, in a subsequent case, the Ninth District again rejected a plaintiff’s
argument that the defendant-movant failed to meet the initial summary judgment burden
by merely citing to the failure to provide an expert report. Yates v. Brown, 2010-Ohio-35,
¶ 13-17, 26-27 (9th Dist.) (in a legal malpractice action, which similarly required an expert
report to show the plaintiff possessed expert testimony). The appellate court explained,
“[the defendant’s] sole argument in support of his motion for summary judgment is that
[the plaintiffs’] failure to submit an expert report rendered them unable to make a prima
facie case of legal malpractice.” Id. at ¶ 10.
{¶90} On this contention, the Yates court concluded: “in the absence of expert
testimony in support of [the plaintiffs’] claim for legal malpractice, the trial court did not err
by granting summary judgment in favor of [the defendant who] met his initial burden by
presenting evidence that the plaintiffs had not submitted an expert report in support of
their claim. Id. at ¶ 20 (then finding the plaintiffs “failed to meet their reciprocal burden to
show that they could in fact substantiate their claim with expert testimony”). The Ninth
District specifically pointed out the ruling on the movant’s initial burden was not based on
the defendant-attorney’s own affidavit, which he did not provide until his reply in support
of summary judgment; instead, the ruling on the defendant’s initial burden was based on
the plaintiff’s “failure to present expert testimony under circumstances in which such
evidence was necessary to maintain their action for legal malpractice.” Id. at ¶ 26.
{¶91} Here, Appellees’ summary judgment motion pointed to summary judgment
evidence by pointing to the pleadings. Civ.R. 56 (C) (including the pleadings as summary
judgment evidence). That is, Appellant’s complaint showed her claims were medical
claims. The summary judgment motion also pointed to the record of the case and the
trial court’s own order requiring disclosure of expert reports by a certain date and the
subsequent failure to provide the expert report as ordered. Moreover, Appellant’s
responses acknowledged her failure to previously provide any expert document (besides
the affidavit of merit with the complaint). In addition, the trial court denied Appellant’s
deadline extension request and later struck a subsequent filing, in which Appellant
attempted to file an amended report by authenticating the information in the prior report
Case No. 25 MA 0066
– 27 –
that was also filed late and without leave in any event. The court’s own orders therefore
established on the record that an expert report was not timely disclosed.
{¶92} We also note Appellees’ dispositive motions were combined requests for
summary judgment and for exclusion of testimony from any expert obtained by Appellant
due to her failure to obtain and produce an expert report after all those years. Had the
court granted an extension of the expert report deadline or otherwise allowed the expert’s
report to be filed, then Appellees’ precise summary judgment position would have fallen
through; however, the court denied Appellant’s request for a deadline extension and
thereafter struck the attempt to file an amendment of a report that was already deemed
untimely. As analyzed in the prior section, this was within the court’s discretion. The
summary judgment motion sought an application of the court’s discretion on deadlines
and then the law on expert testimony, the latter being a legal question that did not require
a presentation of defensive facts on negligence. See, e.g., State ex rel. Sawyer v.
Cuyahoga Cty. Dept. of Children & Family Servs., 2006-Ohio-4574, ¶ 10 (where the Ohio
Supreme Court found a non-movant’s Civ.R. 56(F) continuance for additional discovery
unnecessary because the motion for summary judgment permissibly raised purely legal
arguments with no affidavits).
{¶93} Appellees met their initial burden in moving for summary judgment. Without
expert evidence on the elements of her medical claims, Appellant could not meet her
reciprocal burden (and would not have met her burden with unauthenticated items in any
event). Consequently, we overrule the two assignments of error related to the summary
judgment burden (assignments of error one and two, which we addressed together last).
{¶94} For the foregoing reasons, Appellant’s four assignments of error are
overruled, and the trial court’s judgment is affirmed.
Waite, P.J., concurs.
Hanni, J., concurs.
Case No. 25 MA 0066
[Cite as Bell v. Ohio Living Communities, 2026-Ohio-848.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.