dissenting.
I join Justice Scott’s dissenting opinion and I write separately to emphasize my concern that both the trial court and the majority decision in this court have, for medical malpractice cases, created a rule that shifts the burden on summary judgment away from the movant, to the respondent.
Caritas and Blankenship moved for summary judgment, each stating simply that Collier’s failure to disclose an expert medical witness entitled them to summary judgment. Neither Caritas nor Blankenship presented with its motion any facts or evidence in the record to show that Collier could not succeed without expert testimony. Collier responded accurately citing Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676 (Ky.2005), for the point that an expert witness is not an essential element of a medical malpractice tort, and accordingly the failure to disclose one in advance of trial does not, in and of itself, justify dismissal of the claim by summary judgment. The trial judge granted summary judgment, without reference to any specific facts of record that would negate the ability of Collier to prevail at trial other than his failure to have an expert, and further stated, “The Plaintiff has been instructed by the Court to demonstrate such expert testimony is available.... Since the Plaintiff has failed to identify and disclose any expert witness, summary judgment, as a matter of law is appropriate .... ” By not requiring the movants to particularize their claim with facts to show why Collier could not prevail, the trial court shifted the burden on the summary judgment motion to Collier.
The trial judge may have been aware of specific undisputed facts in the record to support her conclusion that Collier could not prevail without expert testimony. But, where the only specific fact upon which the summary judgment is grounded is Collier’s violation of the order to disclose his expert, the obvious conclusion is the one reached by Justice Scott, that Rule 56 is being misused to discipline a Rule 37.02 violation.
It is the party moving for summary judgment that bears the burden to establish that the lack of a genuine issue of material fact. Only after that burden has been met does the opposing party have any need to show that evidence is available justifying a trial. Continental Casualty *679Company, Inc. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky.1955). The Majority opinion holds that since Collier did not dispute the need for an expert, he failed to establish a genuine issue of material fact at the time Dr. Blankenship and Caritas filed their summary judgment motions. Thus, the Majority opinion creates a presumption for medical malpractice cases that a plaintiff must employ expert witnesses. It thereby relieves the defendants from the need to support a summary judgment motion with facts demonstrating the need for an expert, and shifts the burden on summary judgment to the plaintiff to show that no expert is needed, or that he will obtain the required expert testimony from another source, such as the defendant’s witnesses, the defendant’s admissions, or medical records. The summary judgments entered herein should be reversed and the matter remanded to the trial court for further proceedings which could include a properly supported motion for summary judgment.