concurring.
The majority adheres to an interpretation of ORCP 47 E that makes no practical sense and that the rule does not require. I would bring the rule into closer accord with reality by modifying our decision in Moore v. Kaiser Permanente, 91 Or App 262, 754 P2d 615, rev den 306 Or 661 (1988), to require a party that files an affidavit under ORCP 47 E to state the issues on which the expert would testify, something that many practitioners already frequently do in order to comply with their good faith obligations. However, because plaintiff reasonably relied on Moore, I would apply the modified rule prospectively, from the date of this decision. See Peterson v. Temple, 323 Or 322, 332-34, 918 P2d 413 (1996) *411(applying new rule prospectively when party reasonably relied on previous rule). I therefore concur in the reversal of the judgment in favor of defendants.
In Moore, we held that an affidavit, in order to comply with ORCP 47 E,
“does not have to recite on what issues the expert will testify. It need state only that an expert has been retained and is available and willing to testify to admissible facts or opinions that would create a question of fact.” 91 Or App at 265.
We went on to hold, however, that, when the attorney’s affidavit does enumerate the elements on which the expert will testify, the court and the opposing side can legitimately assume that there will not be expert testimony on the unnamed elements. Id. As a result, under Moore it is safest for the attorney to be as vague as possible about the subject matter of the expert’s testimony; the less that the attorney says about the testimony, the more the court will assume about its scope.
Defendants properly point out the inadequacies of plaintiffs affidavit, inadequacies that are inherent in the Moore standard:
“[T]he affidavit failed to provide the court with any insight as to what issues of fact the expert testimony would address. It is unclear from the affidavit whether the expert would testify as to admissible facts and opinions regarding the unreasonable danger of the product, the defective condition of the product or some other element of plaintiffs prima facie case.”
The court cannot know from this affidavit either whether the expert will testify about one or all of the issues in dispute or if the testimony will concern the issue that the court may believe to be decisive. The court must rely on the attorney’s evaluation of the case rather than being able to exercise its own judgment. As a result of the vagueness that we have permitted in affidavits under ORCP 47 E, thus, the attorney for the nonmoving party resisting the motion may prevent the granting of summary judgment because of the attorney’s good faith but erroneous belief as to what facts are relevant to the motion.
*412The attorney for the nonmoving party may retain an expert whose testimony will create a factual dispute on a specific issue. If the attorney believes in good faith that that subject is the controlling factual issue on the motion, Moore permits the attorney to file an affidavit that, on its face, covers every possible factual issue that could possibly be the subject of expert testimony. The court cannot tell, by reading the affidavit, on what issue the expert will testify. The court, therefore, will treat the affidavit as sufficient on its face to defeat the motion even if, under the court’s view of the case, the attorney was wrong about what issue was controlling. That result goes well beyond the primary purpose of the rule, which is to prevent the use of motions for summaryjudgment as a method of discovering the other side’s experts. The effect of the majority’s interpretation is to prevent the grant of summary judgments that should be granted, based solely on an advocate’s good faith belief about the nature of his or her case.
ORCP 47 E does not describe how explicit the affidavit must be; it emphasizes, however, that the affidavit must “be made in good faith based on admissible facts or opinions” actually obtained from a qualified expert and that its purpose is “to controvert the allegations of the moving party[.]” It is thus essential that the attorney, before filing such an affidavit, identify the precise issues involved in the motion and actually obtain the expert’s opinion. Requiring the attorney to describe the issues about which the expert will testify simply requires the attorney to make explicit what he or she must do in order to file the affidavit. It identifies neither the expert nor the expert’s opinion. It allows the court to evaluate the effect of the affidavit with some confidence and thereby to rule on motions in a more informed manner.
The modification of Moore that I suggest would, in fact, make explicit what many advocates frequently do at present and what, indeed, the majority suggests good faith may require in most circumstances.1 The practicalities of
*413advocacy often require the party resisting a motion for summary judgment to identify the issues that will be the subject of expert testimony. Some affidavits expressly identify the issues. See, e.g., Mittleman Properties v. Bank of California, 131 Or App 666, 671, 886 P2d 1061 (1994) (affidavit stated that expert would controvert specific statements that moving party made in support of motion). Even when the affidavit is as general as Moore allows, the party resisting the motion often finds it necessary to identify in argument the issues about which the expert will testify. See, e.g., Hoke v. The May Department Stores Co., 133 Or App 410, 418 n 4, 891 P2d 686 (1995) (attorney filed general affidavit but argued on appeal that expert would testify about specific issue).
The majority itself recognizes that, whatever the content of the affidavit, an attorney cannot in good faith state in argument that the expert will testify about certain issues unless he or she could have identified those issues in the affidavit. See ORCP 17; ORAP 1.40. It thereby recognizes that good faith will often result in the limited specificity that I would expressly require, despite the nominally broad rule that we stated in Moore. See n 1, above, and 149 Or App at 409-10.
In short, the Moore rule does not further the purposes of ORCP 47 E and may obscure the actual issues on a motion for summary judgment. We should modify Moore to reflect that fact by holding that an affidavit does not satisfy ORCP 47 E unless it identifies the issues about which the unidentified expert will testify.2 Although the logic of the majority’s opinion suggests that good faith requires that result, it refuses to take the necessary step. I therefore concur only in the result.
Edmonds, J., joins in this concurrence.The majority says that, if an expert will not “testify on one of the issues raised by the motion, then the attorney could comply with the rule only by identifying the issues on which the expert would testify.” 149 Or App at 409 n 3 (emphasis supplied). It thereby recognizes that good faith will usually require compliance with the rule that I would expressly adopt.
The affidavit would not, of course, need to provide the facts or opinions that will be the substance of the expert’s testimony.