Terry v. Bell

[Cite as Terry v. Bell, 2021-Ohio-4235.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Amber Terry Court of Appeals No. L-21-1057
Appellant Trial Court No. CI0201902609
v.
Michael D. Bell, et al. DECISION AND JUDGMENT
Appellees Decided: December 3, 2021
*****
Gene P. Murray, for appellant.
Adam S. Nightingale and Robert J. Gilmer, Jr., for appellees
*****
OSOWIK, J.
{¶ 1} This is an appeal from a November 17, 2020 judgment of the Lucas County
Court of Common Pleas, granting summary judgment to appellees, attorney Michael D.
Bell (“Bell”) and the law firm of Gallon, Takacs, Boissoneault & Schaeffer Co., LPA
(“Gallon”) on legal malpractice claims filed against them by Amber Terry (“appellant”).
{¶ 2} Appellant’s legal malpractice claim is rooted in the professional legal
judgment of Bell, appellant’s medical-malpractice plaintiff’s counsel, to file a Civ.R.
41(A) voluntary dismissal of appellant’s medical malpractice case after determining,
following several years of conducting discovery, that the evidence procured did not
support the merits of the case to warrant proceeding further with the litigation.
{¶ 3} Significant to our consideration of this appeal, the Civ.R. 56(C) summary
judgment supporting expert opinions and other supporting admissible evidence submitted
in this case were furnished solely by appellees. Appellant submitted no expert opinion in
support of her legal malpractice claims, and submitted no other admissible summary
judgment rebuttal evidence.
{¶ 4} Appellees’ summary judgment expert opinions concluded, in tandem, that
there was no breach in the standard of medical care given to appellant in the underlying
medical malpractice case, concurring with Bell’s assessment of the case, and consistently
concluded, that there no breach in the standard of legal care furnished by appellees in
their handling of the case.
{¶ 5} In support of their Civ.R. 56(C) summary judgment motion, appellees
submitted the supporting affidavit of Dr. Timothy McKenna (“McKenna”). McKenna
attested, in relevant part, “[B]ased upon a reasonable degree of medical certainty, that the
medical services provided to [appellant] * * * were in all respects proper and performed
in accordance with accepted standards of medical care.” (Emphasis added).
2.
{¶ 6} In conjunction, appellees submitted the supporting affidavit of Bell. Bell
attested, in relevant part, “Throughout the investigation and litigation process * * * I
advised them of the difficult nature of the case on numerous occasions * * * [F]ollowing
the depositions * * * I further advised [appellant] that based upon developments in these
depositions, her case should not be further litigated * * * We voluntarily dismissed.”
(Emphasis added).
{¶ 7} Bell’s affidavit concluded that, “[T]o a reasonable degree of certainty, that
the legal services I provided to [appellant] * * * were in all respects proper and
performed in accordance with accepted standards of care.” (Emphasis added).
{¶ 8} In additional support of summary judgment, appellees submitted the
deposition testimony of Dr. Penelope Mashburn, containing unrefuted testimony likewise
problematic to the merits of appellant’s underlying medical malpractice case.
{¶ 9} Conversely, appellant submitted no expert opinions, or any other admissible
evidence, supporting their legal malpractice claims, supporting the medical malpractice
claims upon which the legal malpractice claims were predicated, or rebutting appellees’
motion for summary judgment.
{¶ 10} For the reasons set forth more fully below, this court affirms the judgment
of the trial court.
{¶ 11} Appellant, Amber Terry, sets forth the following assignment of error:
3.
ABUSING ITS DISCRETION, THE TRIAL COURT ERRED IN
GRANTING THE SUMMARY JUDGMENT MOTION OF
[APPELLEES], BY DISREGARDING THE FACT THAT [APPELLEES]
BREACHED THEIR DUTIES OWED TO [APPELLANT], UNDER
BOTH THE ATTORNEY-CLIENT CONTRACT AND IN TORTIOUS
NEGLIGENCE * * * NO EXPERT TESTIMONY IS NEEDED TO
DETERMINE SAME.
{¶ 12} The following undisputed facts are relevant to this appeal. On October 31,
2014, appellant went to the emergency room at Mercy Tiffin Hospital (“Tiffin”)
complaining of severe abdominal pain. In response to examination by emergency
medical providers, a diagnostic laparoscopy, lysis of adhesions, and a right
salphingectomy were performed on an emergency basis.
{¶ 13} The crux of this case, as will be discussed in detail below, concerns the
mistaken, initial belief by medical providers at Tiffin that appellant’s appendix had been
removed during the Tiffin surgery.
{¶ 14} Rather, an infected epiploic appendage had been removed. However, the
removal of the infected appendage was medically indicated, was covered by consent
forms, and a CT scan later showed that appellant’s abdominal conditions did not include
acute appendicitis.
4.
{¶ 15} On November 5, 2014, appellant was transferred to Mercy St. Vincent
Medical Center (“St. Vincent”) in Toledo to address an unresolved post-operative ileus,
an inability of the bowels to properly evacuate waste, which can occur following an
abdominal surgery.
{¶ 16} On November 7, 2014, appellant underwent a small bowel resection,
drainage of abdominal abscesses, appendectomy, and other procedures relative to
appellant’s serious abdominal issues.
{¶ 17} On November 8, 2014, appellant underwent an abdominal wall closure.
Appellant remained in-patient at St. Vincent and underwent necessary follow-up care.
Appellant was discharged from St. Vincent on November 29, 2014.
{¶ 18} On December 8, 2014, ten days after her release from St. Vincent,
appellant engaged the services of Gallon for consideration of potential medical
malpractice claims relative to appellant’s recent medical care.
{¶ 19} On November 4, 2015, Bell filed a medical malpractice suit against Mercy
Medical Partners and one of the treating physicians from Mercy Tiffin, Dr. Penelope
Mashburn (“Mashburn”). The discovery process commenced.
{¶ 20} On February 17, 2016, the case was voluntarily dismissed. On
February 17, 2017, Bell refiled the matter and resumed conducting discovery in the case.
On January 23, 2018, Bell conducted the key deposition of Mashburn, a treating surgeon
at Tiffin and a named defendant in the litigation.
5.
{¶ 21} Mashburn’s deposition testimony showed that during the course of the
November 4, 2014 Tiffin surgery, infected, inflamed tissue, known as an epiploic
appendage, was removed, rather than the appendix itself. This was disclosed by
Mashburn to appellant and her husband. Appellant denies any recollection of the
disclosure by Mashburn. The record shows that appellant’s medical malpractice action
was initiated shortly after Mashburn’s disclosure.
{¶ 22} A CT scan performed post-operatively upon appellant at Tiffin in response
to concerns pertaining to appellant’s white blood cell count revealed to Mashburn that the
appendix had not been removed.
{¶ 23} Rather, an infected protrusion, known as an epiploic appendage, was
removed. The removal was medically indicated, despite the initial confusion. The CT
scan further showed that the patient’s multiple, serious abdominal conditions did not
include acute appendicitis.
{¶ 24} The Mashburn deposition testimony established that potential common
occurrences during the course of an abdominal surgery, such as the removal of other
infected tissue structures observed and medically indicated once the surgery commenced,
but not originally known pre-operatively, were encompassed by appellant’s surgical
consent forms.
{¶ 25} Following Bell’s completion of discovery, including obtaining and
reviewing extensive medical records and conducting depositions, none of which
6.
produced the supporting evidence of breach of the standard of medical care needed in
order to proceed further with the litigation, Bell advised appellant of the evidentiary
shortfalls and his subsequent professional judgment that the case could not continue to be
litigated.
{¶ 26} As attested by Bell in his affidavit, “Throughout the investigation and
litigation process * * * I advised them of the difficult nature of the case on numerous
occasions. Additionally, following the depositions of Ms. Terry and Dr. Mashburn * * * I
advised Ms. Terry that based upon developments in those depositions, her case could not
be further litigated.” (Emphasis added).
{¶ 27} Accordingly, following discovery, Bell exercised his independent,
professional legal judgment, and concluded that the case was not able to be pursued for
evidentiary reasons. On June 1, 2018, the case was voluntarily dismissed for the second
time. Civ.R. 41(A)(1)(b).
{¶ 28} On May 29, 2019, appellant filed a legal malpractice claim against Bell and
the Gallon Law Firm. Specifically, appellant stated that, although Bell advised her of the
2018 dismissal, and had discussed it with her, she did not, “knowingly, voluntarily, nor
intelligently consent,” to the June 1, 2018 voluntary dismissal.
{¶ 29} Appellant mistakenly implies that Crim.R. 11(C) felony criminal change of
plea colloquy requirements should be construed to encompass and similarly require a lay
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legal client’s concurrence, in accord with the CrimR. 11(C)(2) standards, to effectuate a
valid Civ.R. 41(A) voluntary dismissal of civil cases by legal counsel.
{¶ 30} Appellant furnishes no legal authority in support of such a sweeping
notion. This is unsurprising given that such a scheme would undermine the ability of
attorneys to properly exercise their independent professional judgment in making Civ.R.
41(A) dismissal determinations, in effect, granting lay clients veto power over the legal
judgments of their attorneys in Civ.R. 41(A) determinations.
{¶ 31} On August 28, 2019, the trial court issued a case management order in
appellant’s legal malpractice suit. The order required that all expert witness disclosures
be made on or before January 6, 2020. Appellees disclosed three expert witnesses.
Appellant disclosed no expert witnesses.
{¶ 32} On April 29, 2020, appellees filed for summary judgment. In support,
appellees asserted that appellant had not established any breach in the duty of legal care
in her representation by appellees.
{¶ 33} In conjunction, appellees furnished supporting legal and medical expert
affidavits concluding that no breach occurred in the duty of legal care by appellees, and,
consistent with the decision to dismiss the underlying medical malpractice case, no
breach in the standard of medical care had occurred during the course of appellant’s
medical treatment.
8.
{¶ 34} In response, appellant’s opposition offered no expert testimony and no
other admissible Civ.R. 56 summary judgment rebuttal evidence regarding either the
legal malpractice claims, or the related medical malpractice claims.
{¶ 35} On November 17, 2020, the trial court determined that appellant had failed
to demonstrate a genuine issue of material fact regarding the alleged breach in the duty of
legal care by appellees, and granted summary judgment to appellees. This appeal ensued.
{¶ 36} In the single assignment of error, appellant asserts that the trial court erred
in granting summary judgment to appellees. We do not concur.
{¶ 37} Civ.R. 56(C) establishes, “Summary judgment shall be rendered forthwith
if * * * there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
{¶ 38} In conjunction, it is well-established that appellate court review of disputed
summary judgment determinations is conducted on a de novo basis. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 1996-Ohio-336.
{¶ 39} As elaborated in Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264(1996), the moving party must, “Identify those portions of the record that demonstrate the
absence of a genuine issue of material fact on the essential elements of the nonmoving
party’s claims.” In response, the non-moving party then, “has a reciprocal burden * * *
to set forth specific facts showing that there is a genuine issue for trial.” Id. (Emphasis
added).
9.
{¶ 40} In support of their summary judgment filing, appellees submitted various
admissible summary judgment evidence, including the expert legal and medical opinions
and testimony of Bell, McKenna, and Mashburn, all supporting appellees’ summary
judgment position that appellant failed to establish any breach in the duty of legal care by
appellees to appellant.
{¶ 41} The supporting affidavit of appellee Bell attested that, “Throughout the
investigation and litigation process, I communicated my thoughts to the Terrys, and I
advised them of the difficult nature of the case on numerous occasions.”
{¶ 42} It further averred that, “Following the depositions of Ms. Terry and Dr.
Mashburn, I further advised Ms. Terry that based upon developments in those
depositions, her case should not be further litigated. Based on this opinion and advice,
we voluntarily dismissed.” (Emphasis added).
{¶ 43} It determined, in relevant part, “Based upon my experience, training, and
knowledge as an attorney, my conversations with the Terrys, my review of the records,
and the discovery in this case, it is my opinion, to a reasonable degree of certainty, that
the legal services which I provided to Ms. Terry * * * were in all respects proper and
performed in accordance with accepted standards of care.”
{¶ 44} In conjunction with the Bell summary judgment affidavit, we note that,
“[A] defendant in a legal malpractice action may testify regarding whether he or she met
the applicable standard of care, independent expert testimony on that issue is not
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required.” Vahdati’bana v. Scott R. Roberts & Assoc. Co., 10th Dist. Franklin No. 07-
AP-581, 2008-Ohio-1219, ¶ 31. (Emphasis added).
{¶ 45} Further, such an affidavit is sufficient to satisfy the Civ.R. 56(C) movant’s
initial summary judgment burden, which then shifts the burden to rebut to the non-
movant. Thus, the non-movant must then furnish evidence demonstrating that a material
issue of fact still exists regarding the non-movant’s claim that the movant breach the duty
of legal care. Schottenstein, Zox & Dunn, LPA v. C.J. Mahan Const. Co., LLC, 10th Dist.
Franklin No. 08-AP-851, 2009-Ohio-3616, ¶ 25.
{¶ 46} Again, the record reflects that appellant furnished no expert opinions, or
any other admissible summary judgment rebuttal evidence.
{¶ 47} As discussed above, a lay client’s subjective disagreement with their legal
counsel’s Civ.R. 41(A) professional legal judgment on the merits of their civil case,
however genuinely felt, does not constitute a Civ.R. 56(C) summary judgment genuine
issue of material fact. Crim.R. 11(C)(2) does not apply to, or require a lay client’s
consent to, an attorney’s professional Civ.R. 41(A) legal judgment.
{¶ 48} In addition to the Bell affidavit, the supporting summary judgment affidavit
of McKenna, a physician and medical expert witness, concluded with respect to the
underlying medical malpractice complaint which underpins this legal malpractice appeal,
“[B]ased upon a reasonable degree of medical certainty, that the medical services
11.
provided to Ms. Terry * * * were in all respects proper and performed in accordance
with accepted standards of medical care.” (Emphasis added).
{¶ 49} As such, McKenna’s affidavit provides further support to the veracity of
Bell’s Civ.R. 41(A) determination.
{¶ 50} In further support of summary judgment, appellees also submitted the
deposition transcript of Mashburn. The detailed medical testimony set forth in the
deposition of Mashburn consistently reflects the existence of considerable evidentiary
issues, adverse to appellant, in the underlying medical malpractice matter.
{¶ 51} Mashburn’s deposition testimony reflected that the specific medical issues
raised by appellant in the medical malpractice action were encompassed in appellant’s
surgical consent forms.
{¶ 52} When Bell asked Mashburn during her deposition about appellant’s claims
pertaining to small bowel issues, Mashburn testified, “[I]t is a known complication of an
appendectomy. Of all surgeries that include the bowel, and if you look at her consent
form, it is there.” (Emphasis added).
{¶ 53} When Bell further inquired of Mashburn regarding the removal of the
infected epiploic appendage at Tiffin, rather than the appendix, he questioned, “Removal
of other structures is not a known complication of an appendectomy, though, is it?”
Mashburn testified, “And all other indicated procedures is in the consent form.”
(Emphasis added).
12.
{¶ 54} Bell made further inquiry, “Are you critical of any of the physicians
involved in [appellant’s] care?” Mashburn replied, “I am not.”
{¶ 55} Conversely, in support of her opposition to granting summary judgment in
favor of appellees, appellant misguidedly relied upon the affidavit of merit of Dr.
Christian Hirsh, which accompanied the original filing of appellant’s medical malpractice
complaint. However, such evidence is not admissible summary judgment rebuttal
evidence.
{¶ 56} As established by Civ.R. 10(D)(2)(d), “An affidavit of merit is required to
establish the adequacy of the complaint and shall not otherwise be admissible as
evidence or used for purposes of impeachment.” (Emphasis added).
{¶ 57} As unequivocally held in Schura v. Marymount Hosp., 8th Dist. Cuyahoga
No. 94359, 2010-Ohio-5246, ¶ 28, “[T]he affidavit of merit is for purposes of filing a
medical malpractice claim only and is not otherwise to be used as admissible evidence.
Thus, it cannot be used as summary judgment evidence.” (Emphasis added).
{¶ 58} In our consideration of this appeal, we are also mindful that, “It is well-
settled in Ohio that in order to prevail on a legal malpractice claim, a plaintiff must
demonstrate through expert testimony, by preponderance of the evidence, that the
representation of the attorney failed to meet the prevailing standard of care, and that the
failure proximately caused damage or loss.” Nu-Trend Homes, Inc. v. Law Offices of
13.
DeLibera, Lyons & Bibbo, 10th Dist. Franklin No. 01-AP-1137, 2003-Ohio-1633, ¶ 35.
Again, appellant had no expert witness in support of the legal malpractice claim.
{¶ 59} Appellant argues that the absence of expert testimony supporting her
claims of legal malpractice should not be fatal to the case as the alleged legal malpractice
is, “[S]o obvious that it may be determined as a matter of law, and therefore not requiring
[appellant] to provide expert legal testimony to prove her case of legal malpractice.”
{¶ 60} In a narrow range of legal malpractice cases, supporting expert testimony
on behalf of the plaintiff is not required if the facts reflect that the nature of the alleged
duty and breach is such that it falls within the ordinary knowledge or experience of lay
persons or may be determined as a matter of law. McInnis v. Hyatt Legal Clinics, 10
Ohio St.3d 112, 461 N.E.2d 1295 (1984). See Rafferty v. Scurry, 117 Ohio App.3d 240,
690 N.E.2d 104 (1997) (expert witness was not necessary where the facts were
established by the attorney’s own admissions).
{¶ 61} It is undisputed that in the instant case appellees performed several years of
discovery and depositions, before ultimately concluding, based upon his professional
evaluation of the substantive results of the discovery process, that appellant’s medical
malpractice claim lacked a sufficient evidentiary basis to proceed further with the
litigation. Those deliberations necessitated considerable professional legal knowledge.
{¶ 62} Ultimately, Bell notified appellant that, “[B]ased upon [adverse]
developments in [the] depositions, [appellant’s] case could not be further litigated.”
14.
{¶ 63} In contrast, the underlying attorney conduct at issue in McInnis, the case
relied upon by appellant, entailed appellant’s counsel agreeing to, and providing in
writing, to the client in a divorce action that the divorce filing would not be publicized in
any way in the local paper, then subsequently effectuating service process through local
newspaper publication, in direct contravention of counsel’s express written procedural
promise to the client.
{¶ 64} It constituted a facial breach of a written promise to a client who wanted to
avoid publicity in the filing of her divorce case, and as such, warranted an application of
the obvious exception to the expert testimony requirement of legal malpractice cases. No
legal knowledge, specialized or otherwise, was required to understand that dispute
between the attorney and their client.
{¶ 65} As such, the McInnis scenario is not comparable to a lay client’s
disagreement with an attorney’s post-discovery professional legal judgment on the
overall substantive merits of the case, as relates to a Civ.R. 41(A) filing in a complex
medical malpractice case.
{¶ 66} Accordingly, we find that McInnis is materially distinguishable from, and
inapplicable to, this case. It does not excuse appellant’s lack of expert testimony under
the McInnis “obvious” exception.
{¶ 67} Consistently, as held by this court in Murphy v. Hirsch, 6th Dist. Lucas No.
L-99-1086, 2000 WL 353093 (April 7, 2000), “We agree with the trial court that none of
15.
these matters can be proven without the use of expert witness testimony. Furthermore,
since appellants failed to present such evidence, summary judgment was appropriate.
Appellants cannot substitute for expert witnesses who have specialized knowledge of the
duties of an attorney in the community.”
{¶ 68} We have carefully reviewed and considered the record of evidence in this
matter in order to evaluate the disputed summary judgment ruling on a de novo basis.
{¶ 69} We find that the record clearly reflects that appellees furnished multiple,
unrefuted expert opinions, and other unrefuted, supporting Civ.R. 56(C) summary
judgment evidence, demonstrating that appellant failed to establish any breach in the duty
of legal care by appellees in their handling of the underlying medical malpractice case.
{¶ 70} Conversely, the record shows that appellant submitted no expert testimony,
or any other admissible Civ.R. 56(C) summary judgment evidence, in rebuttal to
appellees’ motion for summary judgment.
{¶ 71} Thus, we find that reasonable minds can only conclude that appellees are
entitled to judgment on appellant’s legal malpractice claims as a matter of law.
Wherefore, the judgment of the Lucas County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
16.
Amber Terry
v. Michael D. Bell, et al.
L-21-1057
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
17.