[Cite as Halter v. Dagostino, 2022-Ohio-1069.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JEREMY HALTER, :

Plaintiff-Appellant, :

No. 110717

v. :

DR. MICHAEL DAGOSTINO, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 31, 2022

Civil Appeal from the Parma Municipal Court

Case No. 21CVI01351

Appearances:

Jeremy Halter, pro se. 

Carlisle, McNellie, Rini, Kramer & Ulrich, Co., LPA, and 

Bradley P. Toman, for appellee.

MICHELLE J. SHEEHAN, J.:

Plaintiff-appellant Jeremy Halter filed a small claims complaint 

against defendant-appellee Dr. Michael Dagostino in the Parma Municipal Court 

regarding the dental work he performed for Halter. The municipal court rendered 
a judgment in favor of Dr. Dagostino after a trial. Upon review, we conclude that

Halter failed to present evidence necessary to establish a dental malpractice claim, 

and therefore, we affirm the judgment of the Parma Municipal Court. 

The small claims complaint filed by Halter stated, in its entirety, that 

Halter “went to Dr. Dagostino to get crown work done and he botched the job. I 

asked him for a full refund so I can get the crowns redone somewhere else. He 

refused. I’ve been in pain and suffering ever since.” Halter sought $6,000 in 

damages, the limit of damages for small claims complaints. Attached to his 

complaint was a bill of $5,500 ($925 for each of the six crowns) and a bill of $50 

from Dr. Dagostino — which had been paid — and an estimated bill of $6,703 from 

another dentist, Dr. Brian Ash, for proposed treatment relating to the crowns. Also 

attached to the complaint is a treatment chart containing notes taken by Dr. Ash, 

which stated: “pt had crowns done at previous dds, roughly 2 months ago[;] pt is 

unhappy with appearance and bite[;] advised pt that bite and esthetics could be done 

better * * *.”

At the trial before a magistrate, both parties appeared pro se. Halter 

testified that, immediately after the crowns were glued in by Dr. Dagostino, he was 

disappointed with the result, but he was told by Dr. Dagostino to wait 30 days and 

return for an assessment. In the follow-up visit on August 12, 2020, Dr. Dagostino 

acknowledged that the crowns were “bad” and needed to be redone. Halter 

requested a refund but Dr. Dagostino refused. 
Halter testified that another dentist at Ash Family Dental would “fix 

the mistakes” made by Dr. Dagostino for an amount of $7,000 and he was waiting 

for the resolution of the dispute with Dr. Dagostino to undergo the treatment. Halter 

called a witness, an Uber driver who drove him on the day he had the dental work 

performed by Dr. Dagostino. She testified that Halter appeared to be unsatisfied 

with the work when he came out of the dentist’s office. 

Halter submitted as exhibits a picture of his teeth and crowns, the bill 

from Dr. Dagostino, and the estimated bill from Dr. Ash. Although the notes taken 

by Dr. Ash were marked as exhibit No. 4, there was no testimony regarding these 

notes. 

Dr. Dagostino testified that when he first saw Halter, another dentist 

had performed the crown work a month before. At that time, two of the crowns were 

cracked and Halter also complained about the aesthetics of the crowns. Halter 

wanted his opinion as to what could be done to improve them. Over several visits, 

he provided Halter with a treatment plan and did the crown preparation work and 

also took impressions for the lab. On the scheduled day for the crowns to be glued 

in, Halter came in with his Uber driver and the driver advised Halter to change the 

shade of the crowns to a lighter color. As a result, Dr. Dagostino had to return the 

crowns to the lab for refabrication. On the next visit, the crowns were fitted and 

cemented, but Halter complained two of the teeth were shorter than the other four. 

According to Dr. Dagostino, for the average patient the “laterals” are always a 

millimeter shorter than the “centrals,” the standard in the dental industry. 
However, because Halter wanted the teeth to be of the same length, Dr. Dagostino 

agreed to “reprep” two of the six crowns and to take new impressions for the lab to 

fabricate the two crowns so that all six teeth will be of the same length. He scheduled 

a two-hour appointment for this work on August 12, 2020. Dr. Dagostino testified 

that Halter was a “no show” for that appointment. 

After the trial, the magistrate rendered a judgment in favor of 

Dr. Dagostino on the ground that Halter failed to provide expert testimony or a 

sworn affidavit regarding the standard of care in the dental profession or testimony 

demonstrating Dr. Dagostino’s treatment of Halter fell below the standard of care. 

Halter filed objections to the magistrate’s decision, alleging that 

Dr. Dagostino was untruthful about his failing to appear for the scheduled 

appointment on August 12, 2020. The trial court overruled the objections and 

adopted the magistrate’s decision, finding that Halter failed to meet his burden of 

proof for his dental malpractice claim. 

On appeal, Halter, pro se, raises one assignment of error for our 

review, claiming that the “[t]rial court erred in granting summary judgment for 

defendant-appellee, Dr. Michael Dagostino.” He frames the issue presented for 

review as “[w]hether the trial court abused its discretion by not accepting medical 

notes from Ash Family Dental giving their expert opinion on the condition and 

physical damage from work performed by Dr. Michael Dagostino.” 

Halter argues that, while he was unable to provide an expert witness 

due to indigence, he provided notes from Ash Family Dental in place of testimony 
by an expert witness. He also alleges that he did show up at the dentist’s office on 

August 12, 2020, and asked for a refund, but Dr. Dagostino refused to refund his 

payment and offered to fix the problems instead. He argues the trial court erred in 

granting judgment in favor of Dr. Dagostino due to a lack of expert witness 

testimony because he provided the notes from another dentist that “clearly stated 

fault and malpractice.” 

In a civil action, the party asserting a claim has the burden of proving 

his or her claim by the preponderance of evidence. Weishaar v. Strimbu, 76 Ohio 

App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). “Preponderance of the evidence 

means the greater weight of the evidence.” Id. at 283.

While Halter’s small claims complaint did not specify a cause of action 

against Dr. Dagostino, a claim against a professional is always governed by the law 

of malpractice. “Malpractice by any other name still constitutes malpractice.” Muir 

v. Hadler Real Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th

Dist.1982). “[M]alpractice consists of ‘the professional misconduct of members of 

the medical profession and attorneys.’” Id., quoting Richardson v. Doe, 176 Ohio St. 

370, 372, 199 N.E.2d 878 (1964). “It makes no difference whether the professional 

misconduct is founded in tort or contract, it still constitutes malpractice.” Id. See 

also Purushealth, L.L.C v. Day Ketterer, L.L.P., 2019-Ohio-2002, 136 N.E.3d 923, 

¶ 39 (8th Dist.).

 To establish a claim for dental malpractice, the plaintiff “‘must 

establish, by expert testimony, the requisite standard of skill and care of physicians 
in the medical community, the negligent failure of the defendant to render treatment 

in conformity with the standard and the proximate causation of the plaintiff’s 

damages by the defendant.’” Condello v. Raiffe, 8th Dist. Cuyahoga Nos. 83076 and

83556, 2004-Ohio-2554, ¶ 34-35, quoting Steinmetz v. Francis J. Lowry, D.D.S. & 

Assoc. Inc., 17 Ohio App.3d 116, 477 N.E.2d 671 (1st Dist.1984), citing Bruni v. 

Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976). 

Here, Halter presented no expert testimony at trial to establish the 

malpractice claim against Dr. Dagostino. We recognize that the rules of evidence 

are relaxed in small claims cases. Stull v. Budget Interior, 7th Dist. Belmont 

No. 02 BA 17, 2002-Ohio-5230, ¶11, and Turner v. Sinha, 65 Ohio App.3d 30, 34, 

582 N.E.2d 1018 (12th Dist.1989). However, the notes from another dentist were 

not presented in the form of a sworn affidavit and, more importantly, did not 

establish the elements necessary for the dental malpractice claim; it did not provide 

the requisite standard of care or how the treatment rendered by Dr. Dagostino fell 

below the standard of care. 

Finally, Halter alleges that he is indigent and requests that an expert 

be appointed for him so that he can present expert testimony upon remand. Even if 

we assume Halter was indigent, civil litigants are not entitled to court-appointed 

experts to help them pursue their claims for damages. Randolph v. McGookey, 

Lucas C.P. No. G-4801-CI-0201304372-000, 2014 Ohio Misc. LEXIS 114, 7-8 

(Apr. 9, 2014), citing Lassiter v. Dept. of Social Serv. of Durham Cty., 452 U.S. 18, 
25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1980), and Black v. Miami Valley Hosp., 2d Dist. 

Montgomery No. 15167, 1995 Ohio App. LEXIS 4099 (Sept. 22, 1995).

For the foregoing reasons, we affirm the judgment of the Parma 

Municipal Court. 

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

municipal court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

__________________________________

MICHELLE J. SHEEHAN, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

JAMES A. BROGRAN, J.,* CONCUR

*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court 

of Appeals.)