Dresher v. Burt

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 280.]




   DRESHER ET AL., APPELLEES, v. BURT; ST. ELIZABETH MEDICAL CENTER,
                                           APPELLANT.
                        [Cite as Dresher v. Burt, 1996-Ohio-107.]
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.
                                     __________________
         {¶ 1} 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




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.
                                  SUPREME COURT OF OHIO




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.
         {¶ 2} 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, 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.
         {¶ 3} In her complaint, Dresher sought recovery from Dr. Burt for medical
malpractice. She sought recovery from SEMC for, among other things, negligent


         “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.
         “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.”




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                                      January Term, 1996




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.
         {¶ 4} 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 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


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.
          “[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




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         {¶ 5} 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



experimental surgery on female patient’s sexual organs, without such patient’s knowledge or
consent.’
          “[Response:] Denied
          “[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.
          “[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.
          “[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)].”




                                                  4
                                      January Term, 1996




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 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.
         {¶ 6} Dresher responded to the motion for summary judgment and
specifically addressed SEMC’s contentions regarding the statute-of-limitations
issue.3 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,


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 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.”




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therefore, Dresher lacked proof of essential elements of her negligent credentialing
claim.
         {¶ 7} 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.
         {¶ 8} 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 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.
         {¶ 9} 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

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.




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                               January Term, 1996




summary judgment, never produced any evidence that SEMC knew or should have
known prior to Dresher’s surgery 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.
       {¶ 10} 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.
       Bricker & Eckler, James J. Hughes, Jr., and Catherine M. Ballard, urging
reversal for amicus curiae, Ohio Hospital Association.
                              __________________
       DOUGLAS, J.
       {¶ 11} 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




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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.
       {¶ 12} 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 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 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




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                                  January Term, 1996




the three documents were inadmissible hearsay and thus could not be considered in
opposition to Celotex’s motion for summary judgment.
           {¶ 13} 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:
           “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.
           {¶ 14} In Celotex, supra (477 U.S. 317), the United States Supreme Court
reversed the judgment of the court of appeals.          Justice (now Chief Justice)
Rehnquist authored the lead opinion in Celotex, which mustered the full support of
Justices Marshall, Powell and O’Conner. Justice White concurred separately. Id.




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


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.
           “(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 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




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                                      January Term, 1996




         “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. * * *
         “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.


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.”




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                             SUPREME COURT OF OHIO




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 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 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




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                               January Term, 1996




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 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.
        “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




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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 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.
       “* * *
       “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.




                                         14
                                 January Term, 1996




        {¶ 15} 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.
        “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 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).




                                            15
                                   SUPREME COURT OF OHIO




         {¶ 16} 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 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
         {¶ 17} 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



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 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




                                                 16
                                       January Term, 1996




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


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 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 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.
          “(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.”




                                                   17
                             SUPREME COURT OF OHIO




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 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 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




                                          18
                                January Term, 1996




does not so respond, summary judgment, if appropriate, shall be entered against
him.” (Emphasis added.)
         {¶ 18} 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
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.
         {¶ 19} 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:
         “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




                                         19
                             SUPREME COURT OF OHIO




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 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 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




                                         20
                                January Term, 1996




burden of specificity for the non-moving party [outlined in Civ.R. 56(E)].”
(Footnote omitted.)
       {¶ 20} 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 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.
       {¶ 21} 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 of documents as proof that appellees
had no evidence to substantiate the negligence claims.
       {¶ 22} The trial court granted summary judgment in favor of SEMC on
other (unrelated) grounds. However, on appeal, the court of appeals addressed and




                                         21
                                  SUPREME COURT OF OHIO




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
         {¶ 23} 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 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.
         {¶ 24} 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.)


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.




                                                22
                                January Term, 1996




We answer that question in the negative. As stated in our discussion supra, 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 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.
       {¶ 25} 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 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.
       {¶ 26} 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




                                          23
                             SUPREME COURT OF OHIO




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.
       {¶ 27} 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 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.




                                          24
                                     January Term, 1996




        “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 judgment because they would not
bear the burden of proof at trial.” Id. at 4-5, 1994 WL 511043 at 2.
        {¶ 28} 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 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




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).




                                               25
                             SUPREME COURT OF OHIO




judgment motion, specifically point to something in the record that comports with
the evidentiary materials set forth in Civ.R. 56(C).
       {¶ 29} 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.
       {¶ 30} 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 interests of the parties and our system of justice
well. This was not one of those cases.
       {¶ 31} 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.
       {¶ 32} 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




                                         26
                                January Term, 1996




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.
       {¶ 33} 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.
       {¶ 34} 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 ago in the Celotex
case. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265.
       {¶ 35} Notwithstanding the sympathy Judy Dresher’s case evokes, she
never produced any evidence that could render the hospital liable. I, therefore,
respectfully dissent.
       {¶ 36} 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.




                                          27
                              SUPREME COURT OF OHIO




        {¶ 37} 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 “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.
        {¶ 38} 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 only to persuade the trial judge
that there is no triable, factual dispute on causation.” Id. at 190.
        {¶ 39} 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.
        {¶ 40} 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




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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 seeking summary judgment is that the
plaintiff has no basis for her claim, to affirmatively demonstrate the absence of
these facts.
        {¶ 41} 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?
        {¶ 42} 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 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




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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.”).
        {¶ 43} 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” 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.
        {¶ 44} 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 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




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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.
       {¶ 45} 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.
       {¶ 46} 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.’ * * * 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.
       {¶ 47} 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.
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