Dec 12, 2012

When It's Time to Face the Facts: Using the Physical Facts Rule to Win Summary Judgment


Achieving success on a motion for summary judgment can be difficult, even when the facts are on your side. In some cases, all of the lay witness testimony supports the defense, but the plaintiff’s expert has presented a theory that supports the plaintiff. The expert testimony alone will often be sufficient to present a question of fact for the jury, precluding summary judgment.

In Ohio, and other jurisdictions, there is a little-known doctrine that can act as a powerful tool for the defense to achieve summary judgment under the right set of circumstances. Known as the “physical facts rule,” it stands for the notion that a witness’ testimony that is positively contradicted by physical facts cannot be given probative value by the court. In the example above, if the expert’s testimony is clearly in conflict with principles established by the laws of science, the court need not give the testimony any probative value. Without probative value, the testimony cannot create a question of fact to defeat summary judgment...

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