The opinion
Karpinski, Presiding Judge,
dissenting.
I respectfully dissent from the majority opinion. While there may be instances in which an expert might not be necessary in a professional negligence and/or malpractice claim, I do not agree that this case is such an exception.
I begin by acknowledging there is clear disagreement on crucial facts, that is, whether Baiko expressly asked Schmidlin and Appel for certain professional services, for example, whether Baiko requested an actual review of the patient files. Whatever that disagreement, however, the testimony of an expert is needed to explain (1) the accepted standards of performance for each profession, (2) whether Appel and Schmidlin failed to conform to that standard, and (3) whether that alleged failure proximately caused damages. See
Georgeoff v. O'Brien
(1995), 105 Ohio App.3d 373 , 663 N.E.2d 1348 ;
Hirschberger v. Silverman
(1992), 80 Ohio App.3d 532 , 609 N.E.2d 1301 ;
Bloom v. Dieckmann
(1983), 11 Ohio App.3d 202 , 11 OBR 298, 464 N.E.2d 187 .
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Expert testimony is not required, however, if the professional misconduct is so obvious that it is within the ordinary knowledge and experience of laypersons to understand. The trial court determined that expert testimony was required, however, and I agree.
The degree to which an accountant and attorney must investigate a business about to be purchased is no.t within a layperson’s experience. Nor does a layperson know whether it is an accepted practice for an accountant to rely upon financial statements and tax returns prepared by another accountant.
Baiko claims to have expressly asked that Appel review the patients’ files. Even if that request was made — and Appel denies it was — the testimony of an expert would be needed to explain the acceptable scope of an accountant’s services, as well as the duty of a professional in responding to such a request.
The majority cautiously summarizes Baiko as averring that he engaged appel-lees “for a specific purpose, to learn as much about the business as possible” and that appellees do not deny this representation. On the contrary, appellees vigorously deny what Baiko claims is the scope of their duty in learning “as much about the business as possible.” The definition of that scope is precisely what an expert testifies about.
Similarly, the standard of care for attorneys participating in the sale of a dental practice is not so obvious or well known as to be within the common knowledge of a layperson. This duty is even less obvious when an attorney’s client has retained an accountant.
In addition to the necessity of providing testimony by an expert on the duties of professionals, there is also a need to submit evidence showing that the investigation that Baiko allegedly requested and/or Appel and Schmidlin had a duty to conduct would have uncovered Mays’s fraud. In other words, Baiko had to show that if Appel or Schmidlin had reviewed Mays’s financial and patient records, each would have discovered that Mays was fraudulently billing for services that had not been performed on nonexistent patients. Such evidence would have to meet the standard of proximate cause to a reasonable certainty. Baiko failed to produce this evidence. Baiko’s failure to oppose Appel’s and Schmidlin’s motions with such competent evidence is fatal to his claim. Thus, even if Baiko did not need to produce an expert, his failure to provide evidence establishing proximate causation was grounds to grant defendants’ motion for summary judgment.
I would therefore overrule Baiko’s assignments of error and affirm the judgment.