Phillips v. Wilkinson
2017 Ohio 8505
| Ohio Ct. App. | 2017Background
- In 2012 Keith Phillips (an inmate) was struck by a softball at Marion Correction Institution and lost most vision in his right eye.
- Phillips sued the Ohio DRC in the Court of Claims; liability found for plaintiff.
- Wilkinson succeeded initial counsel for the damages trial; Court of Claims awarded $200,000 for pain/suffering and vision loss but denied future earning-capacity and future medical expense damages.
- Phillips appealed the damage ruling and lost; Wilkinson died in 2014.
- Phillips filed a legal-malpractice claim against Wilkinson’s estate alleging failure to call a vocational expert and to present pre-injury wage evidence, claiming causation of $850,000 in lost damages.
- Trial court granted summary judgment for the estate because Phillips produced no legal-expert testimony to establish the applicable standard of care; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony is required to establish breach in a legal-malpractice claim for failing to call a vocational expert | Phillips: failure to call vocational expert at damages trial was a clear breach within lay understanding | Estate: whether calling a vocational expert was a tactical/technical matter; plaintiff must present legal-expert evidence to prove applicable standard of care | Court: Expert legal testimony required because whether not calling a vocational expert breached the standard of care is not "patently obvious" to laypersons; summary judgment affirmed |
| Whether prior appellate opinion (Phillips v. DRC) established that Wilkinson breached the standard of care | Phillips: this court’s earlier opinion noting absence of vocational evidence shows breach | Estate: earlier opinion merely explained the Court of Claims’ reasons for denying damages and does not opine on attorney malpractice | Court: Earlier opinion did not criticize Wilkinson’s performance or set the malpractice standard; it did not obviate need for expert testimony |
| Admissibility and sufficiency of plaintiff’s proffered evidence (Squire affidavit referencing third‑party labor leader) | Phillips: Squire’s affidavit and Gatewood’s purported willingness to find work show damages and counsel’s failure | Estate: Squire’s affidavit relies on inadmissible hearsay and does not establish that, but for the eye injury, Phillips could do tool-and-die work | Court: Hearsay inadmissible on summary judgment; even if considered, it fails to prove but‑for employability and does not eliminate need for expert testimony |
| Whether plaintiff waived claims about future medical expenses | Phillips: did not argue on appeal | Estate: trial court’s summary judgment included malpractice theories; absence of appellate argument means waiver | Court: Issue waived for appeal because plaintiff did not brief it |
Key Cases Cited
- McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112 (Ohio 1984) (expert testimony generally required in legal malpractice unless breach is within common understanding of laymen)
- Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506 (10th Dist. 1989) (noncompliance with professional rules may or may not constitute malpractice; expert proof required)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (elements of legal malpractice: duty, breach/standard of care, causation)
- Dimacchia v. Burke, 904 F.2d 36 (6th Cir. 1990) (failure to follow client’s explicit instructions can be proven without expert testimony in some circumstances)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (standard for summary judgment)