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Ewers v. Hospice of Dayton12/2/2005
o reasons:
the motion was filed early in the discovery process, and Clark's affidavit was conclusory and self-serving. Ewers also points out that she had identified an expert who would testify to Clark's negligence.
{ } Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, 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. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 1997-Ohio-221, 677 N.E.2d 343; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46. The moving party "bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If the moving party satisfies its initial burden, "the nonmoving party then has a reciprocal burden * to set forth specific facts showing that there is a genuine issue for trial and, if the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Id.; see Civ.R. 56(E).
{ } Clark moved for summary judgment one year after the complaint was filed. Ewers certainly had the opportunity to conduct a significant amount of discovery during this period, although it is not apparent that she had done so. The trial court could have reasonably concluded that Ewers had had an ample opportunity to obtain the opinion of an expert. Civ.R. 56(C) imposes a burden on non-moving parties which they ignore at their peril. A non-moving party who fails to create a genuine issue of material fact risks a judgment in favor of the movant, and general contentions that some form or forms of discovery will be undertaken to obtain the necessary evidence are insufficient, especially when none have been undertaken since an action was filed months earlier. See Doriott v. MVHE, Inc., Montgomery App. No. 20040, 2004-Ohio-867, -51. If Ewers had, for some sufficient reason, been unable to secure the affidavit or deposition of an expert to counter Clark's affidavit, the proper course for her to have taken was to have sought relief pursuant to Civ.R. 56(F). This she did not do.
{ } Ewers also asserts that Clark's affidavit was an insufficient basis for summary judgment because it was conclusory and self-serving. Ewers points out that conclusory assertions that the non-movant has no evidence to prove its case are insufficient; the movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations which affirmatively demonstrate that the non-movant has no evidence to support his claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264; Civ.R. 56(C). She also points out that the burden is on the movant to show that no genuine issue of material fact exists. Civ.R. 56(C).
{ } Clark's affidavit stated the following with respect to his substantive treatment of Dorothy:
{ } "6. Ms. Ewers suffered from chronic back and chronic abdominal pain and therefore I continued to prescribe her Celebrex, a medication she was taking prior to her admission to the nursing home.
{ } "7. I also prescribed Coumadin to Ms. Ewers because she s
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