concurring.
{¶ 45} A court may strike an affidavit offered in support of or opposition to a motion for summary judgment when it is inconsistent with the affiant’s prior deposition or other sworn testimony and the inconsistency is evidentiary in nature and sufficiently unambiguous to deny the subsequent affidavit the presumption of credibility afforded evidentiary materials in a summary judgment proceeding. Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123.
{¶ 46} The statements of opinion in Dr. Sickles’s affidavit regarding defendant’s alleged negligence are not unambiguously inconsistent with his prior deposition testimony that he did not intend to offer such opinions, because that prior declaration did not necessarily foreclose the possibility that Dr. Sickles, after a further review of the medical records, would form an opinion that would permit him to testify for the plaintiffs, as he apparently did. Furthermore, his statement that he did not intend to testify was not evidentiary in nature, being wholly irrelevant to any claim for relief or defense to it in the litigation. Therefore, the trial court erred when it struck Dr. Sickles’s affidavit and granted defendant’s motion for summary judgment.
{¶ 47} That is not to say that I in any way disagree with the majority’s view that on the holding in Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, the rule of Turner is limited to the affidavits of parties to the litigation and therefore cannot apply to Dr. Sickles. I fully concur. I simply believe that the standard Civ.R. 56(C) imposes, that doubts be resolved in favor of the nonmovant, likewise applies to whether or not a genuine inconsistency exists, and that on this record there is not one. Furthermore, because physicians are often reluctant to testify until they know their own malpractice coverage won’t be affected, the course of events before us suggests a possible “sandbagging” we ought not endorse.