Dresher v. Burt - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Dresher v. Burt, ___ Ohio St.3d ___, 1996-Ohio-107.]
Dresher et al., Appellees, v. Burt; St. Elizabeth Medical Center, Appellant.
[Cite as Dresher v. Burt (1996), __ Ohio St.3d __.]
Civil procedure -- Standards for granting summary judgment under
Civ.R. 56 when a moving party asserts that a nonmoving party
has no evidence to establish an essential element of the
nonmoving party's case -- Civ.R. 56, construed and applied.

(No. 94-2612 -- Submitted January 10, 1996 -- Decided March 6, 1996.)

CERTIFIED by the Court of Appeals for Montgomery County, No. 13088.

The case at bar is one of many winding its way through Ohio's court
system relating to the infamous surgical practices of Dr. James C. Burt during
his former service at St. Elizabeth Medical Center ("SEMC") in Dayton. We
have previously addressed two similar cases involving Burt's former practice
of performing "Love Surgery" or "vaginal reconstruction surgery" at SEMC.
See Browning v. Burt (1993), 66 Ohio St.3d 544, 613 N.E.2d 993. Many of the
underlying facts in this appeal are strikingly similar to the facts in Browning.
Indeed, our holdings in Browning1 have resolved a number of matters that were
formerly at issue in this case. However, the sole remaining issue in this appeal
involves a question that is unrelated to the matters addressed in Browning. The

question here involves the standards for granting summary judgment under
Civ.R. 56 when a moving party asserts that a nonmoving party has no evidence
to establish an essential element of the nonmoving party's case. The facts and
events giving rise to this appeal are as follows.

On September 8, 1989, Judy K. Dresher ("Dresher") and her husband,
Larry E. Dresher, appellees, filed a complaint in the Court of Common Pleas of
Montgomery County against Dr. Burt and appellant, SEMC. Dresher alleged
that on or about December 17, 1970, following the delivery of her child at
SEMC, Dr. Burt negligently, willfully, wantonly and fraudulently performed
unnecessary and experimental vaginal reconstruction surgery upon her without
her consent, restructuring her genital organs into an abnormal, non-functional
configuration. Dresher claimed that SEMC knew or should have known that
Dr. Burt was performing experimental surgery on female patients at the
hospital, and that SEMC "negligently and fraudulently concealed the * * *
facts known to them, from the plaintiff, which if revealed to plaintiff would
have prevented such surgery and the resulting injuries." She also claimed,
2

among other things, that SEMC negligently permitted Dr. Burt to perform the
unnecessary and experimental surgery at SEMC by failing to provide adequate
peer review of Dr. Burt, by failing to investigate Burt's qualifications and
practices, and by failing to protect Dresher from a known incompetent
physician.

In her complaint, Dresher sought recovery from Dr. Burt for medical
malpractice. She sought recovery from SEMC for, among other things,
negligent credentialing, i.e., for SEMC's alleged negligence in granting and/or
continuing Dr. Burt's staff membership or professional privileges at the
hospital. Larry Dresher sought recovery from Dr. Burt and SEMC for loss of
consortium.

Dr. Burt failed to respond to the complaint and, upon motion, appellees
obtained a default judgment against him. SEMC answered the complaint and
asserted a defense based upon the "applicable statute of limitation." During
discovery, SEMC deposed Dresher to establish its statute-of-limitations
defense. Additionally, in July 1990, SEMC served appellees with a request for
3

admissions and for production of documents. See Civ.R. 36 and 34,
respectively. Specifically, SEMC requested that appellees admit to having no
documents or other evidence to support their claims against SEMC and, in the
event that appellees denied the requests for admissions, SEMC sought
production of all documents supporting such denial(s). In response to these
requests, appellees denied that they had no documents or other evidence
substantiating the claims against SEMC, but objected to the requests for
production of documents as improper and "overbroad."2

In August 1990, SEMC filed a motion for summary judgment on all
claims asserted against SEMC. In a memorandum in support of the motion,
SEMC argued that summary judgment was appropriate for several reasons.
First, SEMC argued that appellees' claims against SEMC were time-barred by
the one-year statute of limitations for "medical claims" set forth in R.C.
2305.11(B)(1) and/or the two-year statute of limitations for bodily injury
actions set forth in R.C. 2305.10. Second, SEMC argued that, pursuant to R.C.
2305.25, it was immune from liability for any acts, omissions and decisions in
4

connection with peer review. Third, SEMC asserted that appellees had no
evidence to substantiate the claim for negligent credentialing, arguing that
"[t]he * * * allegations of negligence * * * are pertinent to this case, if at all,
only if they precede Ms. Dresher's date of delivery and surgery by Dr. Burt on
December 17, 1970. * * * Otherwise, such (alleged) acts or omissions could
not possibly be deemed to have proximately caused Ms. Dresher's injuries.
Plaintiffs lack any proof to support the * * * allegations, none exists, and,
accordingly, SEMC is entitled to summary judgment." (Emphasis sic.) To
support this argument, SEMC relied upon appellees' responses to the request
for admissions and for production of documents which, according to SEMC,
demonstrated that appellees had no proof to substantiate the negligent
credentialing claim. Finally, SEMC argued that it was entitled to summary
judgment on Larry Dresher's loss-of-consortium claim because Judy Dresher's
injuries had occurred prior to appellees' marriage.

Dresher responded to the motion for summary judgment and specifically
addressed SEMC's contentions regarding the statute-of-limitations issue.3
5

However, Dresher never specifically responded to SEMC's argument that there
was no evidence to establish that SEMC knew or should have known of Dr.
Burt's incompetence prior to the date of Dresher's 1970 "Love Surgery" and
that, therefore, Dresher lacked proof of essential elements of her negligent
credentialing claim.

On September 5, 1991, the trial court issued a decision in this case and in
eighteen other consolidated cases granting summary judgment in favor of
SEMC.4 The trial court found, among other things, that the causes of action
against SEMC in each of the consolidated cases were time-barred and/or that
SEMC was immune from liability for negligent peer review pursuant to R.C.
2305.25. The trial court did not address SEMC's contentions in Dresher's case
that SEMC was entitled to summary judgment due to Dresher's lack of proof
on essential elements of the negligent credentialing claim.

Appellees appealed to the court of appeals. On March 2, 1992, the court
of appeals ordered the appeal to be held in abeyance pending this court's
decision in Browning, supra, 66 Ohio St.3d 544, 613 N.E.2d 993. After the
6

release of our decision in Browning, the court of appeals vacated the stay and
ordered the appeal to proceed to determination. Thereafter, the court of
appeals, applying Browning, reversed that portion of the trial court's judgment
that had granted summary judgment in favor of SEMC on the claim for
negligent credentialing. Specifically, the court of appeals held that SEMC was
not immune from liability for negligent peer review, and that Dresher's claim
had been timely filed.

In the court of appeals, SEMC argued that there was an independent
basis for the court of appeals to affirm the trial court's decision granting
summary judgment in favor of SEMC on the claim for negligent credentialing.
Specifically, SEMC, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265, and Wing v. Anchor Media, Ltd. of Texas (1991),
59 Ohio St.3d 108, 570 N.E.2d 1095, argued that it was entitled to summary
judgment on the claim for negligent credentialing because appellees, in
response to SEMC's motion for summary judgment, never produced any
evidence that SEMC knew or should have known prior to Dresher's surgery
7

that Dr. Burt was an incompetent physician. The court of appeals rejected
SEMC's arguments, holding that summary judgment would not have been
proper even on this basis under the circumstances of this case since neither
party had presented evidentiary materials demonstrating that there were no
material facts in dispute concerning SEMC's alleged liability for negligence.

Thereafter, the court of appeals, finding its judgment on this issue to be
in conflict with the decision of the Court of Appeals for the Ninth District in
Miller v. Summit Cty. Bd. of Edn. (Sept. 21, 1994), Summit App. No. 16493,
unreported, 1994 WL 511043, entered an order certifying a conflict. This
cause is now before this court upon our determination that a conflict exists.

Sambol & Associates and Marylee Gill Sambol, for appellees.

Dinsmore & Shohl, K.C. Green, Deborah R. Lydon and Sara Sinrall
Rorer, for appellant.

Dale E. Creech, Jr., urging reversal for amicus curiae, Ohio Association
of Civil Trial Attorneys.
8

Bricker & Eckler, James J. Hughes, Jr., and Catherine M. Ballard,
urging reversal for amicus curiae, Ohio Hospital Association.

DOUGLAS, J. The sole issue in this appeal involves the standards for
granting summary judgment when the moving party asserts that the nonmoving
party has no evidence to establish an essential element of the nonmoving
party's case. In particular, the issue certified to this court by the Court of
Appeals for Montgomery County is, "[m]ay a court grant summary judgment
when neither the movant nor the non-movant provides evidentiary materials
demonstrating that there are no material facts in dispute and the movant is
entitled to judgment as a matter of law?" (Emphasis sic.) Resolution of this
issue requires an interpretation of Civ.R. 56, a detailed review of Celotex,
supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, and an examination of
our holding in paragraph three of the syllabus in Wing, supra, 59 Ohio St.3d
108, 570 N.E.2d 1095.
In
Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, Myrtle
Catrett ("Catrett"), administrator of the estate of her deceased husband, Louis
9

H. Catrett, filed a wrongful death action in the United States District Court for
the District of Columbia against fifteen named corporations. In the complaint,
Catrett alleged that her husband's death had been caused by exposure to
products containing asbestos that had been manufactured or distributed by the
defendants. Several of the defendants, including the Celotex Corporation
("Celotex"), filed motions for summary judgment. In support of its motion,
Celotex argued that summary judgment was proper because Catrett had "`failed
to produce evidence that any [Celotex] product * * * was the proximate cause
of the injuries alleged within the jurisdictional limits of [the District] Court.'"
Id. at 319-320, 106 S.Ct. at 2551, 91 L.Ed.2d at 272. In particular, Celotex
noted that Catrett had failed to identify, in answering interrogatories
specifically requesting such information, any witnesses who could testify about
the decedent's exposure to Celotex's asbestos products. Catrett responded to
the motion for summary judgment and produced three documents to counter
Celotex's assertions. The three documents included a transcript of a
deposition, a letter from an official of one of the decedent's former employers
10

whom Catrett planned to call as a witness at trial, and a letter from an insurance
company to Catrett's attorney. These documents tended to establish that the
decedent had been exposed to Celotex's asbestos products in Chicago in 1970
and 1971. Catrett claimed that the three documents demonstrated that there
was a genuine and material factual dispute concerning the decedent's exposure
to Celotex's asbestos products. With respect to this evidence, Celotex asserted
that the three documents were inadmissible hearsay and thus could not be
considered in opposition to Celotex's motion for summary judgment.

The district court in Celotex granted the motion for summary judgment,
finding that there was "`no showing that the plaintiff was exposed to the
defendant Celotex's product in the District of Columbia or elsewhere within
the statutory period.'" Id., 477 U.S. at 320, 106 S.Ct. at 2551, 91 L.Ed.2d at
272. On appeal, the United States Court of Appeals for the District of
Columbia, in a split decision, reversed the judgment of the district court.
Catrett v. Johns-Manville Sales Corp. (C.A.D.C.1985), 756 F.2d 181. The
court of appeals' majority stated, in part:
11

"We need not, however, reach the evidentiary issue [raised by Celotex
that none of the evidence produced by Catrett in response to the motion for
summary judgment would have been admissible at trial], inasmuch as
defendant's [Celotex's] moving papers were patently defective on their face,
rendering inappropriate the grant of summary judgment on the record as it
stood before the District Court. Celotex offered no affidavits, declarations or
evidence of any sort whatever in support of its summary judgment motion. To
the contrary, Celotex's motion was based solely on the plaintiff's purported
failure to produce credible evidence to support her claim. While Celotex may
have faced difficulty, to be sure, in `proving the negative' that plaintiff's
decedent had not been exposed to its products, * * * [Celotex] made no effort
to adduce any evidence, in the form of affidavits or otherwise, to support its
motion. * * * [T]hat undisputed failure renders its motion fatally defective."
(Emphasis sic and footnotes omitted.) Catrett, supra, 756 F.2d at 184.
In
Celotex, supra (477 U.S. 317), the United States Supreme Court
reversed the judgment of the court of appeals. Justice (now Chief Justice)
12

Rehnquist authored the lead opinion in Celotex, which mustered the full
support of Justices Marshall, Powell and O'Conner. Justice White concurred
separately. Id. at 328-329, 106 S.Ct. at 2555, 91 L.Ed.2d at 277 (White, J.,
concurring). Justice Brennan, joined by then Chief Justice Burger and Justice
Blackmun, dissented. Id. at 329-337, 106 S.Ct. at 2555-2560, 91 L.Ed.2d at
277-282 (Brennan, J., dissenting). Justice Stevens also filed a separate
dissenting opinion. Id. at 337-339, 106 S.Ct. at 2560-2561, 91 L.Ed.2d at 283-
284 (Stevens, J., dissenting). Virtually all of the Justices agreed that the court
of appeals had erred in concluding that Fed.R.Civ.P. 56 requires a defendant
seeking summary judgment to produce affirmative evidence disproving
("negating") the plaintiff's case. We quote, at length, from the lead opinion in
Celotex because, with all due respect to the United States Supreme Court, its
opinion in Celotex is somewhat confusing as to the appropriate standard for
granting summary judgment in cases where the moving party asserts that the
nonmoving party has no evidence to establish a material element of the
13

nonmoving party's case. In the lead opinion in Celotex, Justice Rehnquist
offered the following analysis of Fed.R.Civ.P. 56:5

"The majority of the Court of Appeals held that petitioner's [Celotex's]
summary judgment motion was rendered `fatally defective' by the fact that
petitioner `made no effort to adduce any evidence, in the form of affidavits or
otherwise, to support its motion.' * * * [Catrett, supra, 756 F.2d at 184]
(emphasis in original). According to the majority, Rule 56(e) of the Federal
Rules of Civil Procedure, and this Court's decision in * * * [Adickes v. S.H.
Kress & Co. (1970), 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142,
155], establish that `the party opposing the motion for summary judgment bears
the burden of responding only after the moving party has met its burden of
coming forward with proof of the absence of any genuine issues of material
fact.' * * * [Catrett, supra, 756 F.2d at 184] (emphasis in original; footnote
omitted). The majority therefore declined to consider petitioner's argument
that none of the evidence produced by respondent [Catrett] in opposition to the
motion for summary judgment would have been admissible at trial. * * *
14

"We think that the position taken by the majority of the Court of Appeals
is inconsistent with the standard for summary judgment set forth in Rule 56(c)
of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment
is proper `if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.' In our view, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be `no
genuine issue as to any material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party is `entitled to a judgment
as a matter of law' because the nonmoving party has failed to make a sufficient
15

showing on an essential element of her case with respect to which she has the
burden of proof. * * *

"Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,'
which it believes demonstrate the absence of a genuine issue of material fact.
But unlike the Court of Appeals, we find no express or implied requirement in
Rule 56 that the moving party support its motion with affidavits or other
similar materials negating the opponent's claim. On the contrary, Rule 56(c),
which refers to `the affidavits, if any' (emphasis added), suggests the absence
of such a requirement. And if there were any doubt about the meaning of Rule
56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b),
which provide that claimants and defendants, respectively, may move for
summary judgment `with or without supporting affidavits' (emphasis added).
The import of these subsections is that, regardless of whether the moving party
16

accompanies its summary judgment motion with affidavits, the motion may,
and should, be granted so long as whatever is before the district court
demonstrates that the standard for the entry of summary judgment, as set forth
in Rule 56(c), is satisfied. One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually unsupported claims or
defenses, and we think it should be interpreted in a way that allows it to
accomplish this purpose.

"Respondent [Catrett] argues, however, that Rule 56(e), by its terms,
places on the nonmoving party the burden of coming forward with rebuttal
affidavits, or other specified kinds of materials, only in response to a motion
for summary judgment `made and supported as provided in this rule.'
According to respondent's argument, since petitioner [Celotex] did not
`support' its motion with affidavits, summary judgment was improper in this
case. But as we have already explained, a motion for summary judgment may
be made pursuant to Rule 56 `with or without supporting affidavits.' In cases
like the instant one, where the nonmoving party will bear the burden of proof
17

at trial on a dispositive issue, a summary judgment motion may properly be
made in reliance solely on the `pleadings, depositions, answers to
interrogatories, and admissions on file.' Such a motion, whether or not
accompanied by affidavits, will be `made and supported as provided in this
rule,' and Rule 56(e) therefore requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific facts showing that
there is a genuine issue for trial.'

"We do not mean that the nonmoving party must produce evidence in a
form that would be admissible at trial in order to avoid summary judgment.
Obviously, Rule 56 does not require the nonmoving party to depose her own
witnesses. Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves, and it is from this list that one would
normally expect the nonmoving party to make the showing to which we have
referred.
18

"The Court of Appeals in this case felt itself constrained, however, by
language in our decision in Adickes * * * [, supra, 398 U.S. 144, 90 S.Ct. 1598,
26 L.Ed.2d 142]. There we held that summary judgment had been improperly
entered in favor of the defendant restaurant in an action brought under 42
U.S.C. § 1983. In the course of its opinion, the Adickes Court said that `both
the commentary on and the background of the 1963 amendment conclusively
show that it was not intended to modify the burden of the moving party * * * to
show initially the absence of a genuine issue concerning any material fact.' Id.,
at 159 [, 90 S.Ct. at 1609, 26 L.Ed.2d at 155]. We think that this statement is
accurate in a literal sense, since we fully agree with the Adickes Court that the
1963 amendment to Rule 56(e) was not designed to modify the burden of
making the showing generally required by Rule 56(c). It also appears to us
that, on the basis of the showing before the Court in Adickes, the motion for
summary judgment in that case should have been denied. But we do not think
the Adickes language quoted above should be construed to mean that the
burden is on the party moving for summary judgment to produce evidence
19

showing the absence of a genuine issue of material fact, even with respect to an
issue on which the nonmoving party bears the burden of proof. Instead, as we
have explained, the burden on the moving party may be discharged by
`showing'-- that is, pointing out to the district court -- that there is an absence
of evidence to support the nonmoving party's case.

"* * *

"In this Court, respondent's [Catrett's] brief and oral argument have been
devoted as much to the proposition that an adequate showing of exposure to
petitioner's asbestos products was made as to the proposition that no such
showing should have been required. But the Court of Appeals declined to
address either the adequacy of the showing made by respondent in opposition
to petitioner's motion for summary judgment, or the question whether such a
showing, if reduced to admissible evidence, would be sufficient to carry
respondent's burden of proof at trial. We think the Court of Appeals with its
superior knowledge of local law is better suited than we are to make these
determinations in the first instance.
20

"* * *

"The judgment of the Court of Appeals is accordingly reversed, and the
case is remanded for further proceedings consistent with this opinion."
(Emphasis added in part and footnotes omitted.) Celotex, supra, 477 U.S. 317,
321-328, 106 S.Ct. 2548, 2551-2555, 91 L.Ed.2d 265, 272-277.

Justice White, who provided the fifth and deciding vote in Celotex,
stated, in a separate concurring opinion:

"I agree that the Court of Appeals was wrong in holding that the moving
defendant must always support his motion with evidence or affidavits showing
the absence of a genuine dispute about a material fact. I also agree that the
movant may rely on depositions, answers to interrogatories, and the like, to
demonstrate that the plaintiff has no evidence to prove his case and hence that
there can be no factual dispute. But the movant must discharge the burden the
Rules place upon him: It is not enough to move for summary judgment without
supporting the motion in any way or with a conclusory assertion that the
plaintiff has no evidence to prove his case.
21

"A plaintiff need not initiate any discovery or reveal his witnesses or
evidence unless required to do so under the discovery Rules or by court order.
Of course, he must respond if required to do so; but he need not also depose his
witnesses or obtain their affidavits to defeat a summary judgment motion
asserting only that he has failed to produce any support for his case. It is the
defendant's task to negate, if he can, the claimed basis for the suit.

"Petitioner Celotex does not dispute that if respondent [Catrett] has
named a witness to support her claim, summary judgment should not be
granted without Celotex somehow showing that the named witness' possible
testimony raises no genuine issue of material fact. * * * It asserts, however,
that respondent has failed on request to produce any basis for her case.
Respondent, on the other hand, does not contend that she was not obligated to
reveal her witnesses and evidence but insists that she has revealed enough to
defeat the motion for summary judgment. Because the Court of Appeals found
it unnecessary to address this aspect of the case, I agree that the case should be
22

remanded for further proceedings." (Emphasis added.) Celotex, supra, 477
U.S. at 328-329, 106 S.Ct. at 2555, 91 L.Ed.2d at 277 (White, J., concurring).

Again, with the utmost respect to the United States Supreme Court, we
find the court's decision in Celotex to be perplexing. As Justice Brennan so
ably recognized in his dissenting opinion in Celotex, "[t]he Court clearly rejects
the ruling of the Court of Appeals that the defendant [Celotex] must provide
affirmative evidence disproving the plaintiff's case. Beyond this, however, the
Court has not clearly explained what is required of a moving party seeking
summary judgment on the ground that the nonmoving party cannot prove its
case." (Footnote omitted.) Celotex, supra, 477 U.S. at 329, 106 S.Ct. at 2556,
91 L.Ed.2d at 277 (Brennan, J., dissenting). Justice Brennan went on to suggest
that Celotex had failed to meet its burden of establishing that there were no
genuine issues of material fact concerning the essential elements of Catrett's
claims and that, therefore, summary judgment was improper. Id., 477 U.S. at
329-337, 106 S.Ct. at 2555-2560, 91 L.Ed.2d at 277-282 (Brennan, J.,
dissenting). He also questioned what the court of appeals was supposed to do
23

on remand, given that Justice White, who provided the court's fifth vote in
Celotex, "plainly believes that the Court of Appeals should reevaluate whether
the defendant met its initial burden of production." Id. at 329, 106 S.Ct. at
2556, 91 L.Ed.2d at 277, fn. 1.6

Our reading of Celotex and of Civ.R. 567 is that there is simply no
requirement that a party who moves for summary judgment must support the
motion with affidavits negating the opponent's claims. Accord Mitseff v.
Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798, 800-801. See, also,
Civ.R. 56(A) and (B), and Celotex, supra, 477 U.S. at 323-324, 106 S.Ct. at
2553, 91 L.Ed.2d at 274. Indeed, there is no requirement in Civ.R. 56 that the
moving party support its motion for summary judgment with any affirmative
evidence, i.e., affidavits or similar materials produced by the movant.
However, even Celotex makes clear that the moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and
identifying those portions of the record before the trial court which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving
24

party's claim. Accord Mitseff, supra, 38 Ohio St.3d at 114-115, 526 N.E.2d at
801. That is, the moving party bears the initial burden of demonstrating that
there are no genuine issues of material fact concerning an essential element of
the opponent's case. To accomplish this, the movant must be able to point to
evidentiary materials of the type listed in Civ.R. 56(C) that a court is to
consider in rendering summary judgment. The evidentiary materials listed in
Civ.R. 56(C) include "the pleading, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence in the pending case, and
written stipulations of fact, if any." These evidentiary materials must 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. While the movant is not necessarily
obligated to place any of these evidentiary materials in the record, the evidence
must be in the record or the motion cannot succeed. In this regard, Celotex
makes clear, especially in light of Justice White's concurring opinion in that
case, that 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
25

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. If the moving party fails
to satisfy its initial burden, the motion for summary judgment must be denied.
If the moving party has satisfied its initial burden, the nonmoving party has a
reciprocal burden outlined in the last sentence of Civ.R. 56(E), which provides
that:

"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 his pleadings, but his response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him." (Emphasis added.)

Accordingly, we hold that a party seeking summary judgment, on the
ground that the nonmoving party cannot prove its case, bears the initial burden
of informing the trial court of the basis for the motion, and identifying those
26

portions of the record which demonstrate the absence of a genuine issue of
material fact on the essential element(s) of the nonmoving party's claims. The
moving party cannot 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. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence to support the
nonmoving party's claims. If the moving party fails to satisfy its initial burden,
the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal
burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is
a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.

The foregoing principles have been firmly established in Ohio
jurisprudence for some time. In Mitseff, supra, 38 Ohio St.3d 112, 114-115,
526 N.E.2d 798, 800-801, we recognized that:
27

"While
Celotex [, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265,]
says that a moving party does not have to support its motion with affidavits
negating the opponent's claims, Celotex also plainly states that `a party seeking
summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of "the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," which it believes demonstrate the absence
of a genuine issue of material fact.' Celotex, supra, at 323 [, 106 S.Ct. at 2553,
91 L.Ed.2d at 274].
"Accordingly,
even
Celotex makes clear that a party moving for
summary judgment has certain obligations that must be met. These obligations
are set forth in Massaro v. Vernitron Corp. (D.Mass. 1983), 559 F. Supp. 1068.
Massaro held that the party seeking summary judgment `* * * bears the burden
of affirmatively demonstrating that, with respect to every essential issue of
each count in the complaint, there is no genuine issue of fact.' Massaro, supra,
at 1073 (citing Mack v. Cape Elizabeth School Board [C.A.1, 1977], 533 [sic
28

553] F.2d 720, 722). The moving party bears this burden `* * * even with
regard to issues on which plaintiffs * * * would have the burden of proof
should the case go to trial.' Massaro, supra, at 1073, citing Ramsey [sic
Ramsay] v. Cooper (C.A.1, 1977), 553 F.2d 237, 240-241, fn. 8; Adickes v.
S.H. Kress & Co. (1970), 398 U.S. 144, 159-161. See, also, Bird v.
Zimmerman Fur Institute, Inc. (S.D.Ohio 1968), 294 F. Supp. 202.

"The requirement that a party seeking summary judgment disclose the
basis for the motion and support the motion with evidence is well founded in
Ohio law. `The burden of showing that no genuine issue exists as to any
material fact falls upon the moving party in requesting a summary judgment.'
Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d
73, 74, 375 N.E.2d 46, 47, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St.
517, 519-520, 26 O.O.2d 206, 207, 196 N.E.2d 781, 783-784. Reading the
requirement of Harless, supra, in conjunction with Civ.R. 56 and 7(B)(1), it
can readily be seen that the moving party must state specifically which areas of
29

the opponent's claim raise no genuine issue of material fact and such assertion
may be supported by affidavits or otherwise as allowed by Civ.R. 56(C).

"It should be noted that placing the above-mentioned requirements on
the moving party does not mean the nonmoving party bears no burden.
Requiring that the moving party provide specific reasons and evidence gives
rise to a reciprocal burden of specificity for the non-moving party [outlined in
Civ.R. 56(E)]." (Footnote omitted.)
However,
in
Wing, supra, 59 Ohio St.3d 108, 570 N.E.2d 1095,
paragraph three of the syllabus, a majority of this court held that, "A motion for
summary judgment forces the nonmoving party to produce evidence on any
issue for which that party bears the burden of production at trial. (Celotex v.
Catrett [1986], 477 U.S. 317 [, 106 S.Ct. 2548, 91 L.Ed.2d 265,] approved and
followed.)" We now believe that this holding in Wing is too broad.
Specifically, paragraph three of the syllabus in Wing fails to account for,
among other things, the burden Civ.R. 56 places upon a moving party. We
therefore limit paragraph three of the syllabus in Wing to bring it into
30

conformity with Mitseff, supra, 38 Ohio St.3d 112, 526 N.E.2d 798, Celotex,
supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, the requirements of
Civ.R. 56, and our discussion and holdings supra.

In the case at bar, SEMC served appellees with a request for admissions
and for production of documents. Specifically, SEMC sought admissions from
appellees that they possessed no documents or other evidence to support the
negligent credentialing claim. In the event that appellees denied the requests
for admissions, SEMC sought production of all documents supporting the
denials. Appellees denied that they possessed no documents or other evidence
to substantiate the negligent credentialing claim, and entered specific
objections to the requests for production of documents. SEMC never moved to
compel production of the requested documents. Rather, SEMC moved for
summary judgment, urging that appellees had no evidence to establish essential
elements of the negligence cause of action. To support the motion, SEMC
relied on appellees' responses to the request for admissions and for production
31

of documents as proof that appellees had no evidence to substantiate the
negligence claims.

The trial court granted summary judgment in favor of SEMC on other
(unrelated) grounds. However, on appeal, the court of appeals addressed and
rejected SEMC's arguments that SEMC was entitled to summary judgment on
the basis that appellees lacked evidence to prove the negligent credentialing
claim. The court of appeals found that summary judgment on this issue was
not warranted since neither SEMC nor appellees had submitted any evidence
demonstrating the lack of a genuine issue of material fact concerning the
essential elements of the negligence credentialing cause of action. We agree
with the court of appeals' conclusion in this regard.8

We find that appellees' responses to the request for admissions and for
production of documents fail to demonstrate that appellees had no evidence to
prove the essential elements of the negligent credentialing cause of action.
Indeed, we find that appellees' responses to the request for admissions and for
production of documents indicate that appellees were in possession of evidence
32

necessary to prove the negligence claim, but that they were unwilling to
divulge the evidence unless presented with a proper discovery request.
Therefore, SEMC's motion for summary judgment on the ground that appellees
lacked evidence to prove the essential elements of a negligent credentialing
cause of action was supported by nothing more than SEMC's own conclusory
assertions in its memorandum in support of the motion. Since the motion was
not properly supported by evidence in the record, appellees had no duty under
Civ.R. 56(E) to respond to SEMC's allegations that they lacked proof on
essential elements of the negligent credentialing cause of action. See
discussion, supra.

The question certified by the court of appeals in this case is, "[m]ay a
court grant summary judgment when neither the movant nor the non-movant
provides evidentiary materials demonstrating that there are no material facts in
dispute and the movant is entitled to judgment as a matter of law?" (Emphasis
sic.) We answer that question in the negative. As stated in our discussion
supra, the moving party bears the initial responsibility of informing the trial
33

court of the basis for the motion, and identifying those portions of the record
which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim. The "portions of the record" to which we refer
are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings,
depositions, answers to interrogatories, etc., that have been filed in the case.
Here, SEMC could point to no such evidence clearly demonstrating that
appellees lacked proof of the negligence claim. Where, as here, the moving
party does not satisfy its initial burden under Civ.R. 56, the motion for
summary judgment must be denied.

We also agree, in part, with the ultimate conclusion reached by the Court
of Appeals for the Ninth District in Miller, supra, Summit App. No. 16493,
unreported, 1994 WL 511043. In Miller, the plaintiff, Dorothy Miller, was a
school bus driver who applied for re-certification for the 1990-1991 school
year. As part of the certification process, Miller submitted to a medical
examination, the results of which revealed that Miller suffered from high blood
pressure and heart problems. Miller was denied re-certification. She then
34

submitted to a second medical examination (a medical re-examination) and was
found unfit to be a school bus driver. Accordingly, Miller was not re-hired for
the 1990-1991 school year.

Miller sued the Summit County Board of Education, the Manchester
Local School District Board of Education, and others, alleging that the
defendants had breached Miller's contract of employment by not re-hiring her.
In the complaint, Miller conceded that she had received two separate medical
examinations and that both doctors had concluded she did not meet the
physical requirements for driving a school bus. Miller did not allege that either
or both of the physicians who had examined her were not proper medical
authorities. Eventually, defendants moved for summary judgment. To support
their motion, the defendants apparently directed the trial court's attention to (1)
Miller's pleadings, and (2) relevant portions of the Ohio Administrative Code
that defeated Miller's claims. The defendants also apparently relied on certain
affidavits. The trial court granted the motion for summary judgment.
35

In
Miller, the court of appeals affirmed the judgment of the trial court.
The Miller court observed that Ohio Adm.Code 3301-83-07 establishes the
physical qualifications for school bus drivers and the procedures for
ascertaining medical fitness. The court specifically cited Ohio Adm.Code
3301-83-07(F)(4), which provides that the results of a medical re-examination
"shall be final." Judge (now Justice) Cook, writing for the court in Miller,
stated, in part:

"We find that the trial court acted appropriately in granting Appellees'
motion for summary judgment. In her complaint, Miller conceded that she
received two separate medical examinations and that both doctors concluded
that she did not meet the physical requirements for driving a school bus. Miller
claims that the two medical examinations she received were substandard.
However, she produced no evidence cognizable under Civ.R. 56 showing that
she was entitled to a third medical examination and that the results of this
examination could be used to contradict the results of the prior examinations.
Ohio Adm.Code 3301-83-07(A) states that the physical qualifications must be
36

certified by `a proper medical authority.' Ohio Adm.Code 3301-83-07(B)
further requires each county board of education to appoint `[o]ne or more
licensed doctors of medicine or osteopathy' annually. These sections ensure
that prospective bus drivers will be examined by competent medical personnel.
Miller does not argue that either of the two doctors who examined her were not
proper medical authorities. Accordingly, we find that the trial court was
correct in granting Appellees' [the defendants'] motion for summary judgment
as to Miller's declaratory judgment, concluding that she had no right to submit
results from a third medical examination in order to advance her breach of
contract claim.

"Although Miller contests two issues pertaining to Appellees' affidavits,
these arguments do not warrant reversing summary judgment for Appellees.
Even if Appellees' affidavits were defective or non-existent, a party who
moves for summary judgment need not support its motion with affidavits,
provided that the party does not bear the burden of proof on the issues
contained in the motion. Appellees, therefore, are still entitled to summary
37

judgment because they would not bear the burden of proof at trial." Id. at 4-5,
1994 WL 511043 at 2.
We
read
Miller as standing for the proposition that summary judgment
may be rendered where the pleadings and the arguments of the party seeking
summary judgment clearly establish that the nonmoving party has no legally
cognizable cause of action.9 Thus, in Miller, the defendants were entitled to
summary judgment merely by pointing out to the trial judge the applicable
provisions of the Ohio Administrative Code which, when read in conjunction
with Miller's complaint, defeated Miller's claims. In other words, by pointing
out the requirements of Ohio Adm.Code 3301-83-07, and those portions of the
plaintiff's pleadings that showed plaintiff was entitled to no relief, the
defendants succeeded in demonstrating, by evidence permitted under Civ.R.
56(C) (the pleadings), that defendants were entitled to judgment as a matter of
law. However, we take issue with the statement in Miller that "* * * a party
who moves for summary judgment need not support its motion with affidavits,
provided that the party does not bear the burden of proof on the issues
38

contained in the motion." (Emphasis added.) Again, we note that there is no
requirement in Civ.R. 56 that any party submit affidavits to support a motion
for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a
requirement, however, that a moving party, in support of a summary judgment
motion, specifically point to something in the record that comports with the
evidentiary materials set forth in Civ.R. 56(C).

For the foregoing reasons, we affirm the judgment (but not necessarily
the reasoning) of the Court of Appeals for Montgomery County on the matter
certified for our review.

Judgment affirmed.

RESNICK and F.E. SWEENEY, JJ., concur.

PFEIFER, J., concurs in judgment only.

MOYER, C.J., WRIGHT and COOK, JJ., dissent.
Pfeifer, J., concurring in judgment only. I concur in the judgment of the
majority, but share some of the same concerns raised in Justice Cook's dissent
regarding the future use of Civ.R. 56. In most cases, Civ.R. 56 serves the
39

interests of the parties and our system of justice well. This was not one of
those cases.

When a summary judgment motion was first filed in this case, the
overriding question in the case was the statute of limitations issue. Could
Dresher even bring a claim this long after her injuries? While summary
judgment was well suited for the resolution of that issue, the remainder of the
case was undeveloped. Extensive discovery on the factual issues had not yet
begun. In short, the case was immature but for the statute of limitations
question -- the issue of whether Dresher had a meritorious case was not yet in
full bloom. I believe that summary judgment was improperly granted on that
issue -- the time and circumstances were not right. Also, Dresher's responses
and objections to SEMC's discovery requests could be viewed as creating a
general issue as to material facts.

Since this case does not present us with a good example of how Civ.R.
56 works or should work, I respectfully decline to join an opinion which may
reshape the way the rule is used in Ohio. I do, however, agree with the lead
40

opinion's limiting of the third syllabus in Wing v. Anchor Media, Ltd. of Texas
(1991), 59 Ohio St.3d 108, 570 N.E.2d 1095.
Cook, J., dissenting. Dr. Burt's conduct in grossly injuring Judy Dresher
is reprehensible and Dresher's suffering great. Neither event, however, should
be the basis for curtailing the usefulness of summary judgment, the most
important tool Ohio courts have for disposing of issues without a trial. When
properly used, the rule embodies all the laudatory goals of tort reform -- early
assessment of the merits of cases, pretrial judgments, and dismissal of frivolous
claims. It benefits both plaintiffs and defendants and best serves our system of
civil justice.

In the present clime of cynicism about the effectiveness of our courts, it
is absolutely critical that judges retain the full measure of this procedure to
accomplish its purpose -- isolating and disposing of factually unsupported
claims or defenses. Today's majority decision not only severely limits the
utility of summary judgment, but also reaches its decision by employing an
analysis that the United States Supreme Court considered and rejected ten years
41

ago in the Celotex case. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265.

Notwithstanding the sympathy Judy Dresher's case evokes, she never
produced any evidence that could render the hospital liable. I, therefore,
respectfully dissent.

The new standard for summary judgment announced by today's majority
erroneously requires the defendant to produce affirmative evidence that the
plaintiff has no evidence to support her claim. This is the precise concept that
the United States Supreme Court rejected when it reversed the decision of the
circuit court of appeals in Celotex.

In the lower court opinion to Celotex, Catrett v. Johns-Mansville Sales
Corp. (C.A.D.C.1985), 756 F.2d 181, the District of Columbia Court of
Appeals leveled the same critique as the majority herein at the moving party --
that "Celotex proffered nothing. It advanced only the naked allegation that the
plaintiff had not come forward in discovery with evidence to support her
allegations of decedent's exposure* * *." Id. at 185. Because Celotex made
42

"no effort to adduce any evidence, in the form of affidavits or otherwise, to
support its motion" (emphasis sic), the court of appeals concluded that this
"undisputed failure" rendered the motion "fatally defective." Id. at 184.
According to the appellate court, this "barebones approach" was insufficient to
meet Celotex's burden. Id. at 185.

In his dissent to the D.C. Circuit's decision, Judge Bork argued that
"[t]he majority errs in supposing that a party seeking summary judgment must
always make an affirmative evidentiary showing, even in cases where there is
not a triable, factual dispute." Id. at 188. The dissent pointed to the problem
that the majority approach required the defendant "to prove a negative -- that
the plaintiff can never find evidence * * * [which] means that the plaintiff need
never proffer evidence until she faces a motion for a directed verdict at trial."
Id. at 187. Instead of requiring the movant to prove "in effect the negative of
plaintiff's case, even though the plaintiff has no evidence on an essential
element of her claim[,] * * * [t]he majority should have required the defendant
43

only to persuade the trial judge that there is no triable, factual dispute on
causation." Id. at 190.

In adopting this view, the United States Supreme Court concluded that
there is "no express or implied requirement in Rule 56 that the moving party
must support its motion with affidavits or other similar materials negating the
opponent's claim." Celotex at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 274.

Altogether contrary to the analysis of the Supreme Court, this court with
today's opinion requires a movant to "specifically point to some evidence of
the type listed in Civ.R. 56(C) which affirmatively demonstrates that the
nonmoving party has no evidence to support the nonmoving party's claims." In
effect, this burden would require SEMC, as the movant, to affirmatively
disprove non-existent facts. As acknowledged by the court of appeals, the
record contains no evidence from which a jury could infer that SEMC had
known or should have known of Dr. Burt's surgeries. Yet, in order to entitle
SEMC to summary judgment, this court requires SEMC, whose basis for
44

seeking summary judgment is that the plaintiff has no basis for her claim, to
affirmatively demonstrate the absence of these facts.

What would the majority have SEMC put forth to demonstrate that the
hospital did not have notice of Dr. Burt's mistreatment prior to Dresher's
surgery? The majority concedes that "there is simply no requirement that a
party who moves for summary judgment must support the motion with
affidavits negating the opponent's claims." If an affidavit from an SEMC
source is not required, what affirmative evidence could SEMC produce to
demonstrate the absence of facts supporting Dresher's claim?

While the majority may find Celotex perplexing, the Celotex court made
clear that the moving party's burden cannot be enhanced to require proof of a
negative in this fashion. 477 U.S. at 325-326, 106 S.Ct. at 2554 , 91 L.Ed.2d at
275. I agree that much of the time, defendants will only be able to establish the
absence of a factual dispute by producing positive evidence. So long as
plaintiffs have some inferential evidence, the defendants will have the burden
of attacking it to prove that there is no factual dispute fit for trial. In a case
45

such as this, where the nonmoving party has produced no evidence, the
"barebones" delimiting of the absence of proof on an essential element suffices.
See Catrett, 756 F.2d at 190-191 (Bork. J, dissenting). See, also, Celotex, at
325, 106 S.Ct. at 2554 , 91 L.Ed.2d at 275. ("[T]he burden on the moving party
may be discharged by `showing' -- that is, pointing out to the district court -
that there is an absence of evidence to support the nonmoving party's case.");
Cray Communications, Inc. v. Novatel Computer Sys., Inc. (C.A.4, 1994), 33
F.3d 390, 393 (The moving party who does not bear the burden of proof at trial
is not required to produce evidence but can simply argue that there is an
absence of evidence by which the nonmoving party can prove his case.); Street
v. J.C. Bradford & Co. (C.A.6, 1989), 886 F.2d 1472, 1478 ("[T]he movant
could challenge the opposing party to `put up or shut up' on a critical issue.").

There seems little reason why Dresher should not have been required to
establish the existence of potential evidence to support her factual allegations,
when properly challenged by the motion for summary judgment.

Approximately one year after Dresher filed her complaint, SEMC "pointed out"
46

to the trial court the specific basis entitling it to summary judgment --Dresher
had no evidence that SEMC had knowledge of Dr. Burt's now infamous
surgeries prior to December 17, 1970, and thus, no evidence of causation.
SEMC was not required to support its motion with evidence, since that would
require SEMC to negate Dresher's claims. To the contrary, SEMC's arguments
were specific enough to provide Dresher a meaningful opportunity to respond
and shifted the burden upon the nonmovant to show a genuine issue of material
fact.

On five separate occasions, Dresher had the opportunity to produce some
evidence of her claim or at least address SEMC's argument that she had none.
On two occasions, SEMC requested Dresher produce documents to support her
claim. Dresher objected to these requests on the ground that they were
"overbroad." As was done in Celotex, SEMC moved for summary judgment,
rather than moving to compel responses to the discovery requests. See Catrett,
756 F.2d at 184, fn. 8. Dresher altogether failed to address SEMC's argument
that she had no evidence to support her negligent credentialing claim. If
47

Dresher needed more time for discovery in order to respond to this part of the
motion, Civ.R. 56(F) provided her such an option. On appeal, Dresher did not
even address SEMC's argument on this point. In fact, Dresher's brief to this
court is the first time she has addressed this aspect of SEMC's motion for
summary judgment.

The majority focuses on Dresher's objections to SEMC's discovery
requests as an indication that she was in possession of some evidence but was
unwilling to divulge it. Objections to discovery requests certainly ought not
obviate the requirement that a party come forward with evidence in response to
a targeted motion for summary judgment. Moreover, the analysis of the
majority encourages objections to discovery, a tactic far too regularly used for
evasion and delay.

The Supreme Court expressly endorsed summary judgment practice in
Celotex. The court stated, "[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather * * * designed `to
secure the just, speedy and inexpensive determination of every action.' * * *
48

Rule 56 must be construed with due regard not only for the rights of persons
asserting claims and defenses that are adequately based in fact to have those
claims and defenses tried to a jury, but also for the rights of persons opposing
such claims and defenses to demonstrate in the manner provided by the Rule,
prior to trial, that the claims and defenses have no factual basis." Celotex, 477
U.S. at 327, 106 S.Ct. at 2555, 91 L.Ed.2d at 276. And so it should be in Ohio.

I would reverse the court of appeals on the negligent credentialing claim
and reinstate the summary judgment granted by the trial court to SEMC.

MOYER, C.J., and WRIGHT, J., concur in the foregoing dissenting opinion.

49

FOOTNOTES:
1 In
Browning v. Burt (1993), 66 Ohio St.3d 544, 613 N.E.2d 993,
paragraphs one through five of the syllabus, this court held that:

"1. Hospital negligence arising out of the `care' of a patient is a `medical
claim' within the meaning of R.C. 2305.11(D)(3) and is subject to the period of
limitations set forth in R.C. 2305.11(B)(1). `Care' as used in R.C.
2305.11(D)(3) is the prevention or alleviation of a physical or mental defect or
illness.

"2. Negligent credentialing of a physician by a hospital is not `medical
diagnosis, care, or treatment' within the meaning of R.C. 2305.11.

"3. An action against a hospital for bodily injury arising out of the
negligent credentialing of a physician is subject to the two-year limitations
period set forth in R.C. 2305.10.

"4. The period of limitations set forth in R.C. 2305.10 commences to run
when the victim knows or should have discovered that he or she was injured as
a result of the hospital's negligent credentialing procedures or practices.
50

"5. R.C. 2305.25 does not provide a hospital with immunity from
liability for the hospital's negligence in granting and/or continuing the staff
privileges of an incompetent physician."
2
Several of SEMC's requests for admissions and for production of
documents, and appellees' corresponding responses, were as follows:

"[Request for Admission:] 1. Admit that Plaintiffs possess no
documents, statements, or other proof supporting their allegation that * * *
[SEMC] negligently and fraudulently concealed facts from Plaintiff Judy
Dresher.

"[Response:] Plaintiff refuses to admit such fact because plaintiff
certainly does have such records which include plaintiff's hospital record from
SEMC, Dr. Burt's office records and Houston letter, Book `Surgery of Love',
testimony of Dr's [sic Drs.] Hilty and Reiling, Nancy Goodman, and others.
Plaintiff is in the early discovery of this case and may be able to obtain such
documents from the SEMC Board of Trustees * * *, and other substantiating
documents and information.
51

"[Request for Production:] 2. If Plaintiffs' response to No. 1 above is
anything other than an unqualified admission, produce each and every
document which supports Plaintiffs' complete or partial denial of No. 1.

"[Response:] Plaintiff has executed a medical release relating to medical
records. * * * Discovery is in process. OBJECTION -- overbroad -- not a
proper request, Fails to sufficiently identify requested documents.

"* * *

"[Request for Admission:] 9. Admit that Plaintiffs possess no
documents, communications, statements, or other evidence pre-dating
December 17, 1970 to support their claim in Paragraph 14 of the Complaint
that `St. Elizabeth Medical Center was aware or should have been aware that
Defendant James Burt, M.D. was performing non-scientific, non-acceptable
and experimental surgery on female patient's sexual organs, without such
patient's knowledge or consent.'

"[Response:] Denied
52

"[Request for Production:] 10. If Plaintiffs' response to No. 9 above is
anything other than an unqualified admission, produce all documents which
support Plaintiffs' complete or partial denial of No. 9.

"[Response:] Objection -- improper request `All Documents' fails to
request designated documents. Overbroad * * * [-- Civ.R. 34(A) and (B) -- the
request fails to describe the documents with reasonable particularity].

"[Request for Admission:] 11. Admit that Plaintiffs possess no
documents, communications, statements, or other evidence pre-dating
December 17, 1970 to support their allegation in Paragraph 20(b) of the
Complaint that * * * [SEMC] failed to `investigate the abilities, qualifications
and practices of James Burt, M.D.'

"[Response:] Deny

"[Request for Production:] 12. If Plaintiffs' response to No. 11 above is
anything other than an unqualified admission, produce all documents which
support Plaintiffs' complete or partial denial of No. 11.
53

"[Response:] Objection -- `All Documents' is not a proper request --
overbroad and fails to sufficiently designate any documents with reasonable
particularity.

"[Request for Admission:] 13. Admit that Plaintiffs possess no
documents, communications, statements, or other evidence pre-dating
December 17, 1970 which support Plaintiffs' allegations in Paragraph 20(d) of
the Complaint that * * * [SEMC] failed to provide proper and adequate peer
review and quality control.

"[Response:] Deny

"[Request for Production:] 14. If Plaintiffs' response to No. 13 above is
anything other than an unqualified admission, produce all documents which
support Plaintiffs' complete or partial denial of No. 13.

"[Response:] Objection -- `All Documents' is not a proper request --
overbroad and fails to sufficiently designate any request[ed] documents * * *
[Civ.R. 34 (A) and (B)] with reasonable particularity.
54

"[Request for Admission:] 15. Admit that Plaintiffs possess no
documents, communications, statements, or other evidence pre-dating
December 17, 1970 which support Plaintiffs' allegations in Paragraph 20(e) of
the Complaint that * * * [SEMC] was negligent in failing to remove James
Burt, M.D. from the hospital's medical staff.

"[Response:] Deny

"[Request for Production:] 16. If Plaintiffs' response to No. 15 above is
anything other than an unqualified admission, produce all documents which
support Plaintiffs' complete or partial denial of No. 15.

"[Response:] Objection -- `All documents' is an improper request --
overbroad and fails to designate any requested documents with reasonable
particularity * * * [Civ.R. 34(A) and (B)]."
3
In response to SEMC's argument that it was entitled to summary
judgment on the basis of the applicable statute of limitations, Dresher pointed
to portions of her deposition testimony and offered two supporting affidavits.
The deposition and affidavits indicated that Dresher did not know until October
55

30, 1988, that she may have been the victim of Dr. Burt's experimental surgery.
On that date, Dresher had viewed a "West 57th Street" television program
concerning Dr. Burt's surgical practices, and realized that her symptoms were
the same as those discussed by Burt's ex-patients appearing on the show. In
1989, Dresher was examined by a physician who informed her that she had
been the victim of Dr. Burt's "Love Surgery."
4
On December 8, 1989, the case at bar had been consolidated with
numerous other cases involving similar claims and allegations against Dr. Burt
and SEMC.
5
Fed.R.Civ.P. 56, which is similar to Ohio Civ.R.56, provides, in part:
"(a)

For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment may, at any
time after the expiration of 20 days from the commencement of the action or
after service of a motion for summary judgment by the adverse party, move
with or without supporting affidavits for a summary judgment in the party's
favor upon all or any part thereof.
56

"(b)
For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory judgment is sought
may, at any time, move with or without supporting affidavits for a summary
judgment in the party's favor as to all or any part thereof.
"(c)

Motion and Proceedings Thereon. The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse party prior to
the day of hearing may serve opposing affidavits. The judgment sought shall
be rendered forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone although there is a genuine issue
as to the amount of damages.

"* * *
"(e)

Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge, shall
57

set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. 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 adverse party's pleading, but the adverse
party's response, by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if appropriate, shall be entered
against the adverse party."
6
Ultimately, on remand from the United States Supreme Court's decision
in Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265, the United States Court of Appeals for the District of Columbia once again
held that the district court had erred in granting summary judgment in favor of
58

Celotex. See Catrett v. Johns-Manville Sales Corp. (C.A.D.C.1987), 826 F.2d
33. The United States Supreme Court denied further review. Celotex Corp. v.
Catrett (1988), 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992.
7
Civ.R. 56 provides, in part:
"(A)

For party seeking affirmative relief. A party seeking to recover
upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the expiration of the time permitted under these rules for
a responsive motion or pleading by the adverse party, or after service of a
motion for summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in his favor upon all or any part
thereof. If the action has been set for pretrial or trial, a motion for summary
judgment may be made only with leave of court.
"(B)

For defending party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory judgment is sought
may at any time, move with or without supporting affidavits for a summary
judgment in his favor as to all or any part thereof. If the action has been set for
59

pretrial or trial, a motion for summary judgment may be made only with leave
of court.
"(C)

Motion and proceedings thereon. The motion shall be served at
least fourteen days before the time fixed for hearing. The adverse party prior to
the day of hearing may serve and file opposing affidavits. Summary judgment
shall be rendered forthwith if the pleading, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the
pending case, 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 such evidence or stipulation and only
therefrom, 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, such party being entitled to have the evidence or stipulation
construed most strongly in his favor. A summary judgment, interlocutory in
60

character, may be rendered on the issue of liability alone although there is a
genuine issue as to the amount of damages.

"* * *
"(E)

Form of affidavits; further testimony; defense required.
Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions or by further
affidavits. 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 his pleadings, but his response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if appropriate, shall be
entered against him.
61

"(F)

When affidavits unavailable. Should it appear from the affidavits
of a party opposing the motion for summary judgment that he cannot for
sufficient reasons stated present by affidavit facts essential to justify his
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."
8
However, we note, in passing, that we do not agree with the court of
appeals' legal analysis in this case insofar as certain portions of the court of
appeals' opinion imply that SEMC was obligated under Civ.R. 56 to set forth
evidence that it was not negligent.
9
Where there are no evidentiary materials other than the pleadings, and
the pleadings themselves demonstrate that the claimant has no cause of action,
a motion may be made for judgment on the pleadings. See Civ.R. 12(C).

62