Turner v. Elk & Elk, L.P.A., 2011 Ohio 5499

Turner, as administrator of Gardenia Turner’s estate, sued Elk & Elk, L.P.A. and Delahunty for legal malpractice; the trial court entered a defense verdict and the court affirmed on appeal.
Gardenia died after tubinate surgery with a tracheostomy and Demerol exposure, with subsequent airway complications and alleged anaphylactic reaction.
Delahunty pursued the malpractice action; the firm dismissed and later refiled, unsuccessfully seeking various experts for liability and causation.
A summary judgment was granted in favor Hessler and Wooster Hospital; the firm failed to timely file an appellate brief, and the appeal was dismissed.
At trial, expert and defense testimony conflicted on whether the defendants breached the standard of care and whether any breach proximately caused Gardenia’s death; the jury found no breach and no proximate cause by the defendants, and the trial court denied a directed verdict motions.
The appellate court affirmed, holding that the jury instructions, including a “battle of the experts” format and a foreseeability instruction, were not prejudicial, and that the evidence supported the verdict on the merits; the judgment included a defense verdict and affirmed the allocation of costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instructions were prejudicial	Turner argues the battle-of-the-experts instruction prejudiced the jury and misled about standard-of-care.	Defendants contend the instruction properly framed the burden and allowed weighing of competing expert testimony.	No reversible error; instructions did not mislead or prejudice the jury.
Whether the verdict is against the manifest weight of the evidence on legal malpractice	Delahunty violated duty and standard by failing to procure viable experts and proper appellate handling.	Defendants argue the attorney conducted a reasonable, multifaceted inquiry and actions were within scope of duty.	The verdict was not against the weight of the evidence; judgment affirmed.

Kokotka v. Ford Motor Co., 73 Ohio St.3d 89 (1995) (standard review of jury instruction impact in civil cases)
Groob v. KeyBank, 108 Ohio St.3d 348 (2006) (jury instruction sufficiency and credibility determinations)
Withers v. Mercy Hosp. of Fairfield, 2010-Ohio-6431 (Butler App.) (prejudicial effect of certain expert-battle instructions discussed)
Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300 (2010) (res ipsa loquitur in medical malpractice assessed case-by-case; not warranted where opposing experts present and risk known)
Vahila v. Hall, 77 Ohio St.3d 421 (1997) (duty, breach, causation framework for legal malpractice claims; focus on damage)
Berdyck v. Shinde, 66 Ohio St.3d 573 (1993) (standard of care in medical malpractice actions; proximate cause)
Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300 (2010) (clarifies res ipsa loquitur limits in medical malpractice)
Clements v. Lima Mem. Hosp., 2010-Ohio-602 (App.) (foreseeability instruction in medical negligence context)
Grabill v. Worthington Ind., Inc., 98 Ohio App.3d 739 (1994) (foreseeability and expert testimony considerations in negligence)