2023 Ohio 752
Ohio Ct. App.2023Background
- Donald Lykins sued his divorce attorney, Jeffrey Hale, for legal malpractice arising from highly contested divorce proceedings that involved custody, child support, and spousal support.
- Hale entered appearance less than three months before trial, moved to withdraw during the proceedings, and Lykins ultimately represented himself at the final hearing.
- Lykins initially filed a malpractice action in 2018 using expert Gregory Keyser, then voluntarily dismissed it and refiled in 2020.
- In the refiling Lykins retained a new expert, Nicholas Kulik, whose expert report substantially duplicated Keyser’s earlier report and failed to disclose reliance on Keyser.
- Hale moved to exclude Kulik shortly before trial after discovering the plagiarism; the trial court excluded Kulik as unreliable under Evid.R. 702 and 705, denied Lykins a continuance to secure a replacement expert, and granted summary judgment for Hale for lack of admissible expert proof.
- The Twelfth District Court of Appeals affirmed, finding no abuse of discretion in admitting the late motion to exclude, excluding Kulik, or denying a continuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court violated its scheduling order by considering Hale’s late motion to exclude expert testimony | Lykins: the motion was effectively a motion in limine filed after the scheduling-order deadline and should have been denied | Hale: plagiarism was newly discovered in pretrial preparation; exclusion motion was necessary to avoid trial "surprises" | Court: No abuse of discretion; trial court may manage its docket and treat a motion to exclude expert testimony differently than a tentative motion in limine |
| Whether Kulik’s expert testimony was admissible despite plagiarism and lack of disclosure | Lykins: plagiarism and inexperience go to credibility/weight, not admissibility | Hale: Kulik’s report was plagiarized and not an independent opinion; inadmissible under Evid.R. 702 and 705 | Court: No abuse of discretion in excluding Kulik; opinions were not Kulik’s and therefore unreliable and inadmissible |
| Whether the trial court abused discretion by denying a continuance to obtain a new expert | Lykins: should have been granted time (90 days) to find an admissible expert | Hale: issue discovered pretrial; Lykins provided Keyser’s report to Kulik and should have known the risk; further delay was unwarranted | Court: No abuse of discretion; factors (delay length, movant’s role, docket control, lack of readiness) supported denial |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard explained)
- Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155 (1978) (expert testimony must assist trier of fact)
- Scott v. Yates, 71 Ohio St.3d 219 (1994) (trial court gatekeeper role for expert admissibility)
- State v. Unger, 67 Ohio St.2d 65 (1981) (factors for evaluating continuance requests)