from the Franklin County Court of Common Pleas C.P.C. No.
brief: Ford, Gold, Kovoor & Simon, Ltd., and Sarah Thomas
Kovoor, for appellant.
brief: Taft Stettinius & Hollister LLP, Janica Pierce
Tucker, and Andrew J. Art, for appellees.
Argued: Carolyn A. Davis.
1} Plaintiff-appellant, Keith Phillips, appeals from
a judgment of the Franklin County Court of Common Pleas in
favor of defendants-appellees, William C. Wilkinson, Esq. and
Estate of William C. Wilkinson. For the reasons that follow, we
FACTS AND PROCEDURAL HISTORY
2} In 2012, appellant was an inmate in the custody
and control of the Ohio Department of Rehabilitation and
Corrections ("DRC") at the Marion Correction
Institution ("MCI"). On June 29, 2012, appellant
was in the MCI outdoor area when he was struck in the face by
a softball that had been hit over the fence by a contestant
in a home run hitting contest. Appellant sustained a serious
injury to his right eye and, as a result, permanently lost
most of his vision in that eye.
3} Appellant, by and through attorney Percy Squire,
brought a civil action against DRC in Court of Claims of Ohio
alleging negligence. The issues of liability and damages were
bifurcated for trial. Squire continued to represent appellant
through the liability trial. Following a trial to the Court
of Claims on the issue of liability, the Court of Claims
found in favor of appellant on his negligence claim.
4} At the damages trial, Wilkinson represented
appellant. The Court of Claims awarded damages of $200, 000
to compensate appellant for pain and suffering, loss of
vision in his right eye, and his increased risk of total
blindness due to appellant's loss of vision in one eye.
The Court of Claims did not award any damages to appellant
for loss of future earning capacity and future medical
5} Appellant appealed to this court from the
decision of the Court of Claims arguing that the Court of
Claims erred when it failed to award damages to appellant for
loss of future earning capacity and future medical expenses.
In Phillips v. Dept. of Rehab. & Corr., 10th
Dist. No. 12AP-965, 2013-Ohio-5699, this court affirmed the
judgment of the Court of Claims. In holding that the Court of
Claims did not err in denying recovery of damages for loss of
future earning capacity, this court stated: "Although
appellant's alleged damages for loss of earning capacity
was premised on his inability to obtain employment in the
tool and dye industry due to his injury, appellant failed to
call a vocational expert to establish his future
employability or vocational aptitude to work in this field.
Appellant also failed to present any evidence of his
pre-injury wage." Id. at ¶ 14.
6} On February 22, 2014, shortly after this court
issued its decision in Phillips, Wilkinson passed
away. On February 23, 2015, appellant filed a malpractice
action against appellee. Appellant dismissed that case by
filing a notice of voluntary dismissal, but he refiled the
malpractice action on March 10, 2016. The material
allegations of the complaint are as follows:
7. At trial, Attorney Wilkinson failed to introduce evidence
from a vocational expert to establish my future
employability, failed to present evidence of my pre-injury
wage, failed to present evidence of my ability to obtain
employment in the tool and die industry following release and
evidence of future medical expenses.
8. By reason of Defendant's actions, I was deprived of
over $850, 000 in monetary damages.
(Compl. at 2.)
7} On March 7, 2017, the trial court granted
appellee's motion for summary judgment for the stated
reason that appellant failed to identify a legal expert
witness who would give testimony on his behalf, as required
by the local rules of court, and because Ohio law required
appellant to present the testimony of an expert witness to
create a disputed issue of fact as to the elements of his
claim for legal malpractice. Specifically, the trial court
concluded that "[a]bsent expert testimony there is no
basis to find that Wilkinson did not meet the standard of
care." (Mar. 7, 2017 Decision at 6.)
8} Appellant appealed to this court from the trial
ASSIGNMENT OF ERROR
9} Appellant assigns the following as trial court
The trial Court erred in granting Appellee's motion for
summary judgment on grounds that Mr. Phillips failed to
adduce expert ...