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Kurlansky v. Blythe2/20/2004
entage of professional time that Dr. Deutsch had devoted to active clinical practice.
. Civ.R. 56(E) requires that all supporting and opposing affidavits "shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit." It has been held that a plaintiff's failure to establish the competency of its medical expert under Evid.R. 610(D) is proper grounds for summary judgment, and that the failure to take timely corrective measures to establish competency under the rule, when that information is available to the plaintiff at the time the response to the motion is prepared, does not constitute "excusable neglect" for the purposes of vacating the judgment. Stuller v. Price, 10th Dist. Nos. 02AP-29 and 2AP-267, 2003-Ohio-583. Here, although Kurlansky attempted to cure the defect in Dr. Deutsch's affidavit, he failed to do so according to the dictates of Civ.R. 56(C), which requires that summary judgment be rendered on the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact." The same rule states that " o evidence or stipulation may be considered except as stated in this rule." Even if Kurlansky had made the statements he did in affidavit form, they would not have been based upon personal knowledge under Civ.R. 56(E). The only way he could have cured the defect in Dr. Deutsch's affidavit was to acquire another affidavit from Dr. Deutsche attesting to the percentage of his practice that he had formerly devoted to active clinical care. This Kurlansky did not do, nor did he ask for a continuance to do so.
. Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
GORMAN, P.J., PAINTER and SUNDERMANN, JJ.
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