dissenting opinion.
I share the majority’s desire to terminate doubtful malpractice claims as early as practical, but I must dissent, since such a practice under CR 56 — similar to the federal practice — is totally inconsistent with our summary judgment standard established under Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky.1991) (“[I]t should only be used ‘to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.’”) (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)). This is a standard that this Court has continued to follow for decades. See Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 681 (Ky. 2005) (“It is inappropriate to use a CR 56 summary judgment to resolve what is essentially a procedural dispute as to the need for an expert, the disclosure of the expert’s identity, and the substance of the testimony.”); Ward v. Housman, 809 S.W.2d 717, 719 (Ky.App.1991) (“CR 56, Summary Judgments, is not to be used as a sanctioning tool of the trial courts.”); see also Poe v. Rice, 706 S.W.2d 5, 6 (Ky.App. 1986) (“In essence then, the court below has improperly attempted to resolve an essentially procedural conflict arising from discovery with a rule founded upon the resolution of legal issues arising upon undisputed facts. This it cannot do.”).
Moreover, we have previously rejected adoption of the federal summary judgment standards. “[W]e perceive no oppressive or unmanageable case backlog or problems *677with unmeritorious or frivolous litigation in the state’s courts that would require us to adopt a new approach such as the new federal standards.” Steelvest, 807 S.W.2d at 482-88. We have done so in the belief that, in such circumstance as here, a judicious application of CR 37.02(2),(8) is more appropriate.3
CR 56 on the other hand, is predicated upon the trial court’s finding 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.” Baptist Healthcare Systems, Inc., 177 S.W.3d at 681. The distinction between the two rules — which we ignore in this instance — is that, under one (CR 37.02), a party has not disclosed his proof as ordered, while, under the other (CR 56), the material fact is undisputed and thus there can be no proof to the contrary.
Here, Appellants filed no motion for CR 37 sanctions upon the Appellee’s failure to provide his experts as previously ordered. To the contrary, Appellant’s first response was a motion for summary judgment, which was ultimately granted. While such action may, in rare instances, be an appropriate sanction for counsel, it is not necessarily so for one’s client, who in fact may have a meritorious claim. This effect on a party who asserts a wrong subject to redress is why — for many years — we have maintained the distinctions between CR 56 and CR 37.02 and have refused to rush to the federal standards for summary judgment. This is because CR 37.02 is better situated to address the nature and extent of the conduct, rather than assuming the non-existence of a material fact merely as punishment. Thus, as the Court noted in Ward:
*678Considering whether a case should be dismissed for dilatory conduct of counsel, it would be well for our trial courts to consider ... these relevant factors:
1) the extent of the party’s personal responsibility;
2) the history of dilatoriness;
8) whether the attorney’s conduct was willful and in bad faith;
4) meritoriousness of the claim;
5) prejudice to the other party, and
6) alternative sanctions.
Ward, 809 S.W.2d at 719.
If this Court perceives the need for a “heavier hand” toward dilatoriness, it can be accomplished in precise and tailored steps under CR 37.02, giving the client a “shot across the bow” and thus a the chance to save a meritorious claim. However, a “heavier hand” under CR 56 destroys the client’s case with the first blow. This seems to me to unnecessarily take away what our forefathers so wisely granted, to wit: “every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” KY Const. § 14. Thus, I must respectfully dissent.
VENTERS, J., joins this dissent.
. CR 37.02 provides:
(1) Sanctions by court in judicial district where deposition is taken.
If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the judicial district in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by court in which action is pending.
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30.02(6) or 31.01(2) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Rule 37.01 or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(d) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(e) Where a party has failed to comply with an order under Rule 35.01 requiring him to produce another for examination, such orders as are listed in subparagraphs (a), (b) and (c) of this paragraph (2), unless the party failing to comply shows that he is unable to produce such person for examination.
(3)Expenses on failure to obey order. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.