The opinion
RITA W. GRUBER, Judge, concurring.
Based upon our standard of review as well as recent decisions of our supreme court, as set forth in the majority opinion, I have finally | ^resolved in my mind that this case must be affirmed. Because this is a summary-judgment case, Cooper Clinic provided the affidavit of its expert Lisa Woodward, RN, to advance its position that there was an absence of genuine issue of material fact regarding the clinic’s procedures. Unfortunately, the Myerses did not meet their shifting burden by providing the deposition testimony and affidavit of their expert, Dr. James Caya, and the deposition testimony of former defendant Dr. Laura Lowther. The trial court noted that nurse Woodward’s affidavit revealed no “point in time” that the contamination might have occurred but provided “strong proof of the propriety of the Cooper Clinic policies and procedures.” On the other hand, Dr. James Caya stated his medical certainty that contamination had occurred but was unable to pinpoint the specific time or place, while Dr. Lowther stated she had “no evidence” to support her accusation that the contamination happened at Cooper Clinic.
There is no question that Ms. Myers’s sample tissue was contaminated with male tissue positive for lymphoma, and that one or more parties were responsible. Because we have affirmed summary judgment as to Cooper Clinic, the Myerses have no chance to fully develop before a jury important issues regarding the time and place that contamination occurred. They were essentially forced to try this on summary-judgment motions alone.