Everett Jamie Turner v. Morgan, Collins & Yeast, Pllc

Opinion

RENDERED: JULY 17, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1035-MR

EVERETT JAMIE TURNER APPELLANT

APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 21-CI-00167

MORGAN, COLLINS & YEAST, PLLC APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, ECKERLE, AND MOYNAHAN, JUDGES.

CETRULO, JUDGE: Everett Jamie Turner (“Turner”) appeals findings of fact,

conclusions of law, and a summary judgment in favor of his previous attorneys on

a claim of legal malpractice. For the reasons set forth below, we affirm the

judgment of the Perry Circuit Court. BACKGROUND

The facts underlying this litigation are convoluted, the record is quite

large, and the circumstances behind the claimed negligence began more than a

decade ago. We will not restate all the facts and proceedings, which included

several rulings by an administrative law judge (“ALJ”) and two appeals to the

Kentucky Workers’ Compensation Board (“Board”), followed by a prior appeal to

this Court and the Kentucky Supreme Court.

Rather, we will begin with the complaint filed in the Perry Circuit

Court in May 2021. Turner filed suit against Morgan, Collins & Yeast (“the Law

Firm”) alleging it had failed to exercise the ordinary care required of a reasonably

competent attorney acting in the same or similar circumstances. In the complaint,

Turner alleged he had been injured in the course of his employment in 2012, and

he had hired the Law Firm to represent him in a workers’ compensation

proceeding. In 2014, an ALJ awarded him a permanent disability award, but that

decision was vacated by the Board in 2015. In reversing the ALJ, the Board sua

sponte relied upon an unpublished opinion of this Court, issued 17 days earlier,

which held that a finding of permanent impairment must be accompanied by a

finding that the worker had reached maximum medical improvement (“MMI”).

This Court held that, without an MMI finding, an impairment rating could not be

properly assigned. Corbett v. Maker’s Mark Distillery, Inc., No. 2013-CA-

-2- 001102-WC, 2015 WL 1284393 (Ky. App. Mar. 13, 2015). Based upon this newly

issued opinion, the Board remanded the matter to the ALJ to make further findings

as to whether Turner had achieved MMI, based on the record before it as it existed

at that time.

On remand, however, the ALJ considered additional evidence

presented by Turner’s attorneys and awarded further benefits. The Board again

vacated the ALJ’s decision, stating that by accepting and considering further

evidence, it had exceeded the authority granted by the previous remand. That

second ruling was appealed by the Law Firm to this Court which affirmed the

Board’s decision in May 2019. An appeal from our Court’s decision to the

Kentucky Supreme Court resulted in a 3-3 tie on May 28, 2020, which had the

effect of sustaining the decision of the Board.

Turning back to this lawsuit, the complaint alleged that the Law Firm

had committed negligence by failing to submit evidence of Turner’s MMI date

before the first ruling of the first ALJ. Second, the complaint alleges that the Law

Firm committed negligence by not filing an appeal from that initial ruling of the

Board which had remanded the matter to the ALJ. Instead, the Law Firm had

continued to litigate before the ALJ following remand, ultimately resulting in

damages to Turner.

-3- After the filing of this suit in May 2021, the parties engaged in

extensive written discovery. In answering interrogatories propounded to Turner in

2022 (as to expert witnesses he would call in support of his claims), Turner

responded that:

It has not yet been determined which expert witnesses may be called upon to testify at the trial of this action. Discovery is ongoing and [Turner] reserves the right to supplement this answer. [Turner] will comply with orders of the court regarding disclosure of expert witnesses.

The Law Firm’s interrogatories further asked Turner to set forth the

acts or omissions he claimed were a deviation from the standard of care owed.

Turner’s response stated that:

The employer appealed various issues to the [Board]. However, the employer did not appeal the issue as to the validity of the impairment rating because [Turner] was not at MMI. Despite that fact, the Board overturned the ALJ’s award of permanent total disability on their own volition, and the case was remanded to the ALJ to make additional findings regarding the date upon which [Turner] reached MMI, based on the evidence in the record as of March 30, 2015.

[The Law Firm] did not appeal this issue to the Court of Appeals, and the Board’s decision became law of the case. After a long procedural history, when the ALJ eventually made findings consistent with the Board’s Order of March 30, 2015, there was no evidence of MMI prior to the date of the impairment rating and, therefore, the impairment rating upon which the ALJ’s finding of permanent total disability was invalid. As a result, [Turner] lost the award of permanent total disability. This interrogatory is subject to expert opinion. [Turner]

-4- reserves the right to supplement his answer to this interrogatory.

Over the course of the continued litigation, the parties also conducted

several depositions. In October 2024, Turner moved the circuit court to assign a

trial date and enter a scheduling order. The scheduling order, entered on

December 2, 2024, established deadlines to identify experts and furnish reports

from expert witnesses. Turner’s expert disclosures were to be filed by January 3,

2025; the Law Firm’s experts were to be identified by February 7, 2025; and a trial

date was set for June 9, 2025.

Turner, however, did not produce any expert disclosures in January

2025. He did not update or supplement his interrogatory responses with any

disclosures. In February, the Law Firm identified its two expert witnesses and

produced two reports stating that the Law Firm had exercised the ordinary care and

skill expected of a reasonably competent attorney acting under the same or similar

circumstances. One month later, Turner filed a one-paragraph motion to continue

the trial date and extend deadlines. As no basis for the request was stated, and the

defense objected to a continuance at this juncture, the circuit court denied the

motion.

In April 2025, the Law Firm moved for summary judgment pointing

out that the case had been pending for 47 months and that Turner had failed to

identify any expert witness who would testify that the Law Firm had deviated from

-5- the standard of care in its representation of him. The Law Firm pointed to

testimony of its member attorneys that the change in the law brought about by the

Court of Appeals’ decision in Corbett was the reason that Turner’s award was

vacated. The Law Firm also relied upon its two identified experts, both of whom

practiced workers’ compensation law for many years. The summary judgment

motion and memorandum in support included affidavits of those two experts

explaining the Law Firm’s handling of the case and why it was in keeping with the

law and standard of care at the time.

In response, Turner asserted that the Corbett case did not change the

law in Kentucky and that this case did not turn upon the affidavits of experts.

Turner then asserted for the first time that negligence could be determined based

upon admissions of one of his former attorneys and an employee’s internal email

which indicated that the first Board opinion should have been appealed.

Alleging that this evidence created issues of fact, Turner argued

against summary judgment and renewed his motion for a continuance. In the

second motion to continue, Turner’s attorney now asserted that he was

“unavailable the week prior to trial” and that he believed a consultant, identified as

Honorable John Kelley, “has received additional information which has changed

his opinion.” There was still no affidavit from any expert nor summary of the

substance of any consultant’s opinion.

-6- The Perry Circuit Court denied the renewed motion for continuance,

and on May 29, 2025, issued summary judgment in favor of the Law Firm

(“Summary Judgment”).1 In granting the Summary Judgment, the circuit court

outlined the opinions provided by the two defense experts that the Law Firm did

not deviate from the standard of care required of a reasonably competent attorney

in its representation of Turner. The court noted that Turner, after four years, had

failed to timely identify an expert witness to establish that the Law Firm deviated

from the applicable standard of care. “In the absence of expert opinion

establishing a breach of the standard of care, [Turner]’s claim must fail.”

Turner then filed a CR2 59.05 motion to alter, amend, or vacate the

Summary Judgment and argued that because professional negligence was “readily

apparent,” no expert testimony was needed. In ruling on that motion, the circuit

court reiterated that Turner’s counsel clearly knew expert testimony was required:

It is evident from the record in this case that [Turner] had notice that an expert was required based on the complaint filed wherein negligence was alleged and the responses to interrogatories wherein it was stated by [Turner] that [the Law Firm] deviated from the standard of care; from a scheduling order issued by this court ordering that expert(s) be disclosed on certain dates; by the fact that [the Law Firm] and its expert disclosure and witness lists identified two experts as to the issue of deviation from the

1 The Summary Judgment was issued only ten days prior to the scheduled trial date. 2 Kentucky Rule of Civil Procedure.

-7- standard of care. Further, [Turner] contacted Hon. Barry Lewis about possibly serving as an expert witness.[3]

Turner appealed.

ANALYSIS

On appeal, Turner first asserts the circuit court improperly granted the

Law Firm’s motion for summary judgment because an expert should not have been

required. The standard of review upon appeal of an order granting summary

judgment is “whether the trial court correctly found that there were no genuine

issues as to any material fact and that the moving party was entitled to judgment as

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing

CR 56.03). Upon a motion for summary judgment, all facts and inferences in the

record are viewed in a light most favorable to the non-moving party and “all

doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,

807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). The trial court “must

examine the evidence, not to decide any issue of fact, but to discover if a real issue

exists.” Id. Thus, a summary judgment looks only to questions of law, and we

review de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016).

3 Barry Lewis was one of the two expert witnesses on behalf of the Law Firm. In response to Turner’s CR 59.05 motion, the defense provided an affidavit from Lewis confirming that he had also been contacted by counsel for Turner about serving as an expert on his behalf. He had declined to discuss the matter with Turner’s counsel, but that contact had occurred in January 2025.

-8- Both parties agree that expert testimony is typically required to

establish the standard of care in negligence cases involving professions requiring

special skill and expertise. Generally, the determination of whether an expert

witness is required rests within the trial court’s discretion. Gleason v.

Nighswander, 480 S.W.3d 926, 929 (Ky. App. 2016) (citing Blankenship v.

Collier, 302 S.W.3d 665, 673 (Ky. 2010)).

In Gleason, the attorney requested that his former client identify

experts through written discovery, and he had not responded. Id. at 927-28. The

attorney then moved to compel identification of expert witnesses. Id. at 928. The

court granted that motion, ordering Gleason to produce his expert witness. Id. In

response, Gleason then argued to the trial court that his case did not require an

expert witness because the negligence was apparent and understandable to a

reasonable layperson. Id. The trial court disagreed but did grant Gleason a brief

continuance to procure his expert. Id. When Gleason still failed to secure an

expert, the case for negligence was dismissed. Id. We upheld that summary

judgment on appeal. Id.

Here, Turner argues that the circuit court made no prior determination

that expert testimony was required. He argues that Gleason requires such a

determination by the court. However, in Gleason, the plaintiff specifically

advised, before summary judgment was sought, that he was seeking to proceed

-9- without expert testimony. Id. The Court in Gleason exercised its discretion in

ruling that he could not proceed without an expert, but granted him more time to

attempt to secure an expert. Id.

In contrast, Turner did not ever indicate to the circuit court that he was

intending to proceed without expert testimony, even though he recognized that an

expert is generally required. When he answered interrogatories, he suggested that

expert testimony would ultimately be provided. When he moved for a trial date

and for deadlines to be imposed, he did not advise the court that he intended to

proceed without any expert testimony. While other motions were made by Turner,

there was never any indication of an intent to proceed without expert testimony.

In Blankenship, our Supreme Court provided guidance to the bench

and bar regarding this recurring issue.

[W]e reiterate that where a plaintiff does create a legitimate dispute about the need for an expert witness prior to the expiration of the court’s expert disclosure deadline, the trial court should first make a separate ruling on that issue, i.e., the need, or lack of need, for expert testimony in the case. If the court determines within its discretion that an expert is needed, it should give the plaintiff a reasonable amount of time to identify an expert as outlined by this Court in [Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676 (Ky. 2005)]. However, if the need for an expert is never disputed and if it would be unreasonable for the plaintiff to argue that an expert is not needed, (and most particularly if the plaintiff requests an extension for the express purpose of securing more time to identify his experts), there is no reason for a trial court first to enter a separate ruling informing the plaintiff that his

-10- case requires expert testimony before considering a defendant’s summary judgment motion based on the plaintiff’s failure of proof.

Blankenship, 302 S.W.3d at 672-73 (emphasis added). While Turner points to

Blankenship, it does not support his argument. Turner did not “create a legitimate

dispute about the need for an expert witness prior to the expiration of the court’s

expert disclosure deadline.” Id. There was nothing in this record, prior to the Law

Firm’s motion for summary judgment, that would have required the circuit court to

make a ruling on the need or lack of need for expert testimony in this case. “The

trial court is not required sua sponte to issue its own separate ruling on the need for

an expert.” Celina Mut. Ins. Co. v. Harbor Ins. Agency, LLC, 332 S.W.3d 107,

113 (Ky. App. 2010).

If professional judgment is implicated, expert testimony will usually

be required. Ratliff v. Employers’ Liability Assur. Corp., Ltd., 515 S.W.2d 225,

228-29 (Ky. 1974). It is true that in Stephens v. Denison, this Court held a legal

malpractice plaintiff did not always need to present expert testimony. 150 S.W.3d

80 (Ky. App. 2004). However, Stephens is materially distinguishable because the

attorney in that case allegedly failed to convey a plea offer to a criminal defendant,

an obligation that is, without question, upon counsel. Id. at 82. Here, the question

before the circuit court was primarily whether the Law Firm properly exercised

legal judgment in proceeding before the ALJ rather than filing an appeal after the

-11- first remand by the Board. The Law Firm’s experts provided detailed analyses of

the manner in which attorneys were presenting medical evidence in 2012 through

2014 and of the status of workers’ compensation law at that time.4 Based upon

their detailed accounts, we cannot agree that this was a matter readily understood

by a layperson. Simply put, the asserted negligence is not “so apparent that a

layperson with general knowledge would have no difficulty recognizing it[.]” Id.

Secondly, Turner alleges the circuit court erred by denying him

additional time to obtain an expert once he realized that the court was requiring the

same. This argument is simply disingenuous, as the circuit court noted below.

Turner proceeded throughout this litigation with knowledge that experts are

generally required for professional negligence cases and yet he did not seek a

ruling prior to summary judgment motions on whether he could proceed without

expert testimony. If a reasonable amount of time expires and the party still fails to

file any expert disclosures or request an extension of time, the trial court has the

discretion to deny a motion for an extension of time and to grant summary

judgment. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968). Likewise, the

4 In short, the experts’ affidavits stated that it was not until the Corbett opinion in 2015 that a legal requirement was established prohibiting judges from accepting reports of physicians assigning impairment ratings prior to MMI. Before that, it was accepted practice of workers’ compensation attorneys to submit impairment ratings before a worker had reached MMI. These experts also asserted that it was not negligence for the Law Firm to proceed without an appeal after the first remand and that an appeal at that point would not have been successful in light of the Corbett decision which was affirmed by our Supreme Court.

-12- circuit court has broad discretion in ruling on a continuance, and we will not

reverse for failure to grant a continuance unless there is a clear abuse of discretion.

Airrich, LLC v. Fortener Aviation, Inc., 489 S.W.3d 254, 257-58 (Ky. App. 2016)

(citation omitted). There was no abuse of discretion by the circuit court in either

determining that an expert was required, nor in denying a continuance that was

only sought after the deadlines had passed for naming experts and the motion for

summary judgment was filed.

Third, we also disagree with Turner that his prior attorney’s admission

obviated the need for an expert witness in this legal malpractice suit. When a

defendant makes certain admissions that expose his negligence, expert testimony

may not be necessary. Blankenship, 302 S.W.3d at 670. However, Turner’s

previous attorney’s only admissions were that it was the claimant’s burden of proof

to establish every element of a workers’ compensation claim and that a particular

report was not filed in the record by the Law Firm as it elected to use a different

physician’s report. Counsel also explained the manner in which he handled the

case and testified that he did not think there was any way in the world that the Firm

could have practiced Turner’s case any better. Having reviewed the entire

testimony relied upon by Turner on this appeal, we cannot agree that this testimony

created an admission sufficient to remove the need for expert testimony in this

-13- case. Rather, it reinforces the need for expert testimony to address the attorney’s

exercise of professional judgment.

CONCLUSION

Even viewing the facts in a light most favorable to Turner, he did not

meet his burden of proving negligence herein, and the circuit court did not err by

finding in favor of the Law Firm. We AFFIRM the Summary Judgment of the

Perry Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Jeffrey R. Morgan Darrin W. Banks Hazard, Kentucky Michael J. Schmitt Paintsville, Kentucky

-14-