Foster v. Sullivan, 2014 Ohio 2909

Foster filed a medical malpractice action against Sullivan in 2012; a prior 2010 suit was dismissed.
The complaint attached an affidavit of merit by Dr. James Apesos supporting the malpractice claim.
Defendants admitted Dr. Sullivan performed procedures but denied malpractice.
Case schedule set discovery cut-off for 10/01/13 and trial assignment for 01/07/14.
Appellees disclosed witnesses on 11/13/12 but did not name Apesos; Foster did not file a witness disclosure.
On 7/16/2013, appellees moved to dismiss for failure to prosecute and for summary judgment, asserting lack of expert deposition and lack of expert testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Appellees could grant summary judgment after excluding Apesos' affidavit	Foster contends cooperation existed; Apesos' affidavit creates a fact dispute	Exclusion under Loc.R. 43 justified; no genuine issue without Apesos' testimony	Yes; exclusion was proper and summary judgment appropriate
Whether the dismissal for failure to prosecute was proper given discovery status	Foster argues discovery not complete; she cooperated	Court acted within discretion due to discovery noncompliance	Yes; dismissal affirmed as proper sanction
Whether Civ.R.56(F) continuation of discovery was appropriate	Discovery should continue to allow deposition opportunities	No need; court may grant summary judgment after limiting evidence	No; court did not err in granting summary judgment

Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary-judgment evidence burden on movant; reciprocal burden on nonmovant)
Fletcher v. Bolz, 35 Ohio App.3d 129 (10th Dist. 1987) (authorities for discovery/assignment procedures in this district)
Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons & Bibbo, 2003-Ohio-1633 (10th Dist. 2003) (relation of Civ.R.56(E) and Loc.R.43 with evidentiary disclosures)
Chase Home Fin., L.L.C. v. Mustafa, 2012-Ohio-3764 (10th Dist. 2012) (preservation of issues not properly raised in trial court on appeal)