In the Matter of the Supervised Estate of Mildred Borgwald v. Old National Bank and Raelynn Pound

Jun 04 2014, 10:01 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC A. FREY KURT V. LAKER
Terre Haute, Indiana CRAIG D. DOYLE
Doyle Legal Corporation, P.C.
Indianapolis, Indiana
MATTHEW A. SHEEHAN
Smock & Etling
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE SUPERVISED )
ESTATE OF MILDRED BORGWALD, Deceased, )
)
Appellant-Respondent, )
)
vs. ) No. 84A01-1302-ES-80
)
OLD NATIONAL BANK and )
RAELYNN POUND, )
)
Appellee-Petitioner. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause No. 84D01-1004-ES-3250
June 4, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, The Supervised Estate of Mildred Borgwald, Deceased
(the Estate), appeals the trial court’s decision in favor of Appellees-Claimants, Old
National Bank (ONB) and Raelynn Pound (Raelynn), entitling ONB to foreclose the
mortgage and equity line of credit against the Estate.1
We affirm.
ISSUES
The Estate raises four issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion when it excluded the testimony of the
Estate’s proffered expert witness, Dr. Robert Lalouche (Dr. Lalouche), a
gynecologist who had never treated Mildred Borgwald (Mildred);
(2) Whether the trial court improperly denied the Estate an opportunity to make an
offer of proof with respect to Dr. Lalouche’s anticipated testimony;
(3) Whether the trial court abused its discretion when it admitted redacted, certified
copies of medical records containing the observations of nurses and physicians
regarding Mildred’s mental and physical status; and
(4) Whether ONB’s mortgage was invalidated by the closing agent’s failure to read
the loan documents to Mildred in violation of Indiana Code section 33-42-2-2(4).
FACTS AND PROCEDURAL HISTORY
1
We conducted oral argument in this case on February 27, 2014 at Wabash College, Crawfordsville,
Indiana. We would like to thank counsel for their excellent advocacy and the College for its cordial
hospitality.
2
Ninety-five-year-old Mildred passed away on August 29, 2008. On March 21,
2001, Mildred executed her Last Will and Testament, leaving $1,000 to each of her five
grandchildren, with the remainder of her estate to her daughter, Lana McGee (Lana). On
the same date, Mildred also executed a general durable power of attorney, designating
Lana as attorney-in-fact upon a written declaration by Mildred’s doctor that she was
unable to manage her own affairs. On July 17, 2001, Dr. Lance Pickrell (Dr. Pickrell),
Mildred’s ophthalmologist, declared that Mildred was “unable to manage her own affairs
due to the onset of blindness.” (Trial Exh. 3). As such, Dr. Pickrell’s declaration
activated the power of attorney.
For the next six years, and prior to June 2007, Mildred, despite increasing
difficulties with sight and hearing, insisted that she reside on her own in her residence. In
the summer of 2007, Mildred had become hard of hearing and had vision problems. Her
family accommodated her by speaking louder, interacting closer, and by describing
checks to her and showing her where to sign.
In June of 2007, Mildred fell in her home and required hospitalization. After her
discharge from the hospital, she returned home and was cared for by the Visiting Nurses
Association. In addition, Mildred asked her granddaughter and Lana’s daughter,
Raelynn, to take care of her in Mildred’s home. Between July 2007 and June 2008,
Raelynn cared for her grandmother “24/7.” (Appellant’s App. p. 26). Mildred offered to
pay Raelynn $650.00 per week for her services.
On October 23, 2007, Raelynn accompanied Mildred to Old National Bank (ONB)
to complete an application of an equity line of credit against her home, which was valued
3
at $55,000. Denise Keegan (Keegan), ONB’s customer service representative, observed
the close connection between Mildred and Raelynn. Mildred informed Keegan that she
wanted to obtain a loan to pay for Raelynn’s in-home health care services. During her
dealings with Mildred, Keegan was assured that Mildred was cognizant of her
surroundings and her actions. At no time did Keegan believe that Raelynn was directing
or influencing the transaction.
On October 31, 2007, Mildred closed on an equity line of credit in the amount of
$36,000. A first disbursement in the amount of $12,600 was transferred into Mildred and
Raelynn’s joint checking account that same day. This entire amount was paid out to
Raelynn by check on November 7, 2007. Thereafter, a series of checks from November
2007 through June 2008 were written to further deplete the equity line of credit and
which were drawn on the joint checking account, “consistent with a weekly wage of
$650.00 for healthcare.” (Appellant’s App. p. 6).
In June of 2008, Mildred became hospitalized. Asserting her authority under the
power of attorney, Lana accused Raelynn of theft and undue influence, demanding that
Raelynn leave the hospital and move out of Mildred’s residence. Mildred passed away
on August 29, 2008.
On April 19, 2010, Lana, as personal representative, opened Mildred’s estate
(Estate). On July 15, 2010, ONB filed a claim for $36,274.54, representing the funds
borrowed by Mildred under the equity line of credit. Although the claim was initially
disallowed by the Estate and the trial court, the trial court granted ONB’s subsequent
4
motion to correct error and relief from judgment. At the same time, the Estate filed a
petition seeking to recover assets from Raelynn and asserting fraud and undue influence.
Despite several requests by ONB to the Estate to submit its witness lists and to
make its expert witnesses available for discovery, the Estate neglected to do so. Finally,
on May 30, 2012, ONB filed a renewed motion to exclude the Estate’s expert witnesses,
which the trial court conditionally granted on June 14, 2012. On July 6, 2012, the Estate
produced the report of its proffered expert witness, Dr. Lalouche. This report disclosed
for the first time that Dr. Lalouche was a non-treating gynecologist. Additionally, the
Estate noticed a video deposition, which it intended to use at trial and refused to make Dr.
Lalouche available for a discovery deposition. On July 13, 2012, the trial court granted a
motion to quash the video deposition. Thereafter, on July 18, 2012, the trial court
ordered Dr. Lalouche’s testimony excluded because (1) the Estate refused to make the
doctor available for anything other than a video deposition for trial in contravention of
the trial court’s prior orders; (b) Dr. Lalouche was engaged to render an opinion about the
mental state of a patient he had never met; and (c) the doctor intended to testify solely on
the basis of medical records.
On August 26 and October 26, 2012, the trial court conducted a bench trial. On
January 25, 2013, the trial court issued its findings of fact and conclusions of law, finding
that Mildred had the mental capacity to enter into a contract and was not unduly
influenced by Raelynn. The trial court concluded that ONB was the holder and owner of
a valid mortgage and was entitled to have the mortgage foreclosed as a valid and
paramount lien on Mildred’s real property.
5
The Estate now appeals.2 Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admissibility of Dr. Lalouche’s Testimony
The Estate’s first argument centers on the trial court’s exclusion of the trial
testimony by its proposed expert witness, Dr. Lalouche. A trial court’s determination
regarding the admissibility of expert testimony under Evidence Rule 702 is a matter
within its broad discretion and will be reversed only for abuse of that discretion. Sears
Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 459 (Ind. 2001). The trial court’s decision
is presumed correct, and the party challenging the decision has the burden of persuading
us that the trial court abused its discretion. TRW Vehicle Safety Systems, Inc. v. Moore,
936 N.E.2d 201, 216 (Ind. 2010). It is only those rulings on admissibility made during
trial, not those made on motions in limine, that may be raised on appeal. Id.
The admissibility of Dr. Lalouche’s testimony was excluded by way of a pre-trial
joint motion by ONB and Raelynn to the trial court with a request to reconsider their
previous motion to exclude the expert’s testimony. On July 18, 2012, the trial court
granted the motion and issued a detailed order, which stated, in pertinent part:
The estate was ordered to provide opposing counsel, and file with the court,
a written report from Dr. Lalouche setting forth his opinions and the basis
therefore no later than July 6, 2012. On July 11, 2012, [ONB] and Raelynn
[] filed a motion to reconsider excluding Dr. Lalouche. The report is the
first indication this court has had that Dr. Lalouche is a non-treating
ObGyn, who was recently contacted to conduct a records review in order to
give an opinion on the competency of the decedent in October 2007 when
the mortgage at issue was executed, There is no history of treatment
2
Although the Estate appealed the trial court’s Order in favor of both ONB and Raelynn, the Estate
focuses its arguments on appeal solely on ONB; thereby foregoing its claims against Raelynn.
6
between Dr. Lalouche and the decedent. He never treated her, and had
never met her.
The Estate was required to make Dr. Lalouche available for deposition no
later than August 3, 2012. It refused. Instead, the Estate noticed a
videotaped deposition, for presentation at trial, for July 19, 2012. On July
13, 2012, a motion to quash the deposition notice of Dr. Lalouche was filed
and granted due to the pending motion to reconsider. The Estate responded
to the motion to reconsider on July 17, 2011.
[Mildred] passed away in August 2008. Apparently, she was a patient of
Dr. Janiki’s. She never treated with Dr. Lalouche and Dr. Lalouche never
met her. Dr. Lalouche was asked to review records – which records he was
provided is not clear – and render an opinion on decedent’s “ability to
comprehend a mortgage taken out . . . in October 2007.” Dr. Lalouche is a
practicing ObGyn. Reviewing and comparing records from 9 months after
the mortgage was executed with records from treatment three months prior
to the mortgage being executed (plus some historical records, apparently),
Dr. Lalouche opines [Mildred] was not competent to execute the mortgage
at issue. Dr. Lalouche confined his review to the records he was provided.
[]The opinion testimony of Dr. Lalouche is excluded.
(Appellant’s App. pp. 107-08).
At trial, the Estate requested to make an offer of proof with respect to Dr.
Lalouche’s anticipated testimony. After affirming from the Estate that his testimony
would be “consistent with the report [the Estate] submitted, the trial court concluded,
“I’m going to consider that your offer of proof, that you would call him and elicit
testimony based on the report that was submitted to the court.” (Tr. p. 131). Based on
the trial court’s order and subsequent ruling on the Estate’s offer of proof, it is clear that
the trial court excluded Dr. Lalouche’s testimony based on Ind. Evidence Rule 702
grounds.
7
The trial court is considered the gatekeeper for the admissibility of expert opinion
evidence under Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d
738, 750 (Ind. 1999). With regard to the admissibility of expert testimony, Rule 702
provides:
(a) If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.
By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and
that the underlying scientific principles are reliable, Rule 702 guides the admission of
expert scientific testimony. Sears Roebuck & Co., 742 N.E.2d at 460. Once the
admissibility of the expert’s opinion is established under Rule 702, “then the accuracy,
consistency, and credibility of the expert’s opinions may properly be left to vigorous
cross-examination, presentation of contrary evidence, argument of counsel, and
resolution by the trier of fact.” Id. at 461.
Where an expert’s testimony is based upon the expert’s skill or experience rather
than on the application of scientific principles, the proponent of the testimony must only
demonstrate that the subject matter is related to some field beyond the knowledge of lay
persons and that the witness possesses sufficient skill, knowledge or experience in the
field to assist the trier of fact. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 102
(Ind. Ct. App. 2005), trans. denied.
8
Focusing on Dr. Lalouche’s review of Mildred’s medical records and his 21 years
of experience in “caring for women, many of whom are elderly patients,” the Estate
contends that “[w]hile it may not have been testimony by a treating physician who saw
Mildred the day the mortgage was signed, it was of some benefit at least in explaining the
observations, evaluations, notes and records of the nurses who were attending to Mildred
at the time, and it was an abuse of discretion for the [c]ourt to absolutely prohibit the
Estate from offering an explanation of the medical evidence.” (Appellant’s Br. pp. 18-
19).
In response, ONB and Raelynn rely on Bennett v. Richmond, 960 N.E.2d 782 (Ind.
2012), to dispute the Estate’s notion that, based on his qualifications and experience, Dr.
Lalouche’s testimony would be helpful to the trier of fact. In Bennett, our supreme court
deemed a psychologist qualified to offer an expert opinion that the plaintiff in a personal
injury case suffered a traumatic brain injury as a result of a car accident. Id. at 789. The
court reached this decision based on the fact that the psychologist had personally
evaluated the plaintiff, clearly demonstrated his knowledge and experience with
traumatic brain injuries, as well as his familiarity with the specific facts of the case. Id.
Relying on Bennett’s parameters, ONB and Raelynn assert that having never practiced in
a field even tangentially related to neurological diseases or age-related cognitive
impairment and never having met Mildred, Dr. Lalouch’s experience of caring for elderly
patients is of little import to offer an opinion on Mildred’s mental capabilities.
Dr. Lalouche is a graduate of UCLA medical school and completed a Duke
ObGyn residency. He is a practicing ObGyn physician with 21 years of experience.
9
While it is undisputed by the parties that Dr. Lalouche is a skilled physician, in order to
be admissible pursuant to Evidence Rule 702, his testimony must assist the trier of fact in
its evaluation of Mildred’s mental competency. In this light, we have held before that
“[a]n expert in one field of expertise cannot offer opinions in other fields absent a
requisite showing of competency in that other field. Hannan v. Pest Control Servs, Inc.,
734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.
Reviewing the Estate’s offer of proof with respect to Dr. Lalouche’s proposed
testimony, we note—as did the trial court—that Dr. Lalouche is not Mildred’s treating
physician; in fact, Dr. Lalouche never met Mildred and formulated his opinion solely
based on the records submitted to him by the Estate. In his report, he merely paraphrases
the content of these records, without any further clarification of the medical terms or
separate elucidation on Mildred’s mental capabilities. Thus, although Dr. Lalouche relies
in his report on the conclusions by Mildred’s treating psychiatrist and internist, he does
not profess an independent competency in neurological diseases or age-related mental
deficiencies and his conclusion with respect of Mildred’s ability to comprehend the
mortgage process is of no assistance to the trier of fact. As such, we conclude that the
trial court did not abuse its discretion by excluding Dr. Lalouche’s proposed expert
testimony.3
II. Offer of Proof
3
Because we affirm the trial court’s exclusion of Dr. Lalouche’s proposed testimony based on Indiana
Evidence Rule 702, we will not address ONB’s and Raelynn’s alternative argument with respect to the
Estate’s discovery violations in releasing Dr. Lalouche’s report.
10
In a single-page argument, the Estate contends that the trial court abused its
discretion when it denied the Estate an opportunity to make an offer of proof “by putting
Dr. Lalouche on the witness stand and having him testify to the evidence he would have
been able to offer had the [c]ourt not excluded his testimony.” (Appellant’s Br. p. 22).
In response, both ONB and Raelynn point out that not only was the Estate allowed to
present an offer of proof, the Estate also failed to object when Dr. Lalouche’s report was
substituted in lieu of his live testimony.
The transcript includes the following colloquy:
[TRIAL COURT]: My understanding is, your position is you want to call
[Dr.] Lalouche to testify?
[THE ESTATE]: Just as an offer of proof only.
[TRIAL COURT]: And to do that, you would elicit from him testimony
consistent with the report you submitted.
[THE ESTATE]: That’s right.
[TRIAL COURT]: Okay, so I’m going to consider that your offer of proof,
that you would call him and elicit testimony based on the report that was
submitted to the court.
[THE ESTATE]: That’s right, Judge.
[TRIAL COURT]: In the prior motions that we had with respect to his
testimony.
[THE ESTATE]: That’s right, Judge.
[TRIAL COURT]: So I will consider that your offer of proof, however, my
ruling stands as it was before, he was not going to be allowed to be a
witness or testify for the reasons I gave in my order.
[THE ESTATE]: To that extent, Your Honor, and may it please the court,
in rather than having him come here and testify, which I think he is actually
available, as part of that offer of proof, would the court allow me just to
simply submit the report instead.
[TRIAL COURT]: It’s already in the court’s file.
[THE ESTATE]: Well, I wasn’t sure if that’s what we were doing, Judge,
I’m just confirming it.
[TRIAL COURT]: Yes, that’s what I just did.
(Tr. pp. 131-32).
11
As this exchange clearly establishes, the Estate requested—as required to preserve
the evidentiary ruling—to make an offer of proof with regard to the admissibility of Dr.
Lalouche’s testimony even though this issue had been extensively addressed pre-trial.
After confirming the proposed live testimony from Dr. Lalouche would be consistent
with the written report already submitted, the trial court indicated that it would consider
that report to be the Estate’s offer of proof and reiterated that it would not allow Dr.
Lalouche to be called as a witness. Contrary to ONB and Raelynn’s assertion, the Estate
did not waive this issue by suggesting the report in lieu of live testimony or by failing to
object to the trial court’s procedure. The trial court stated twice that it would consider the
report to be the Estate’s offer of proof and only then did the Estate offer the report itself
to ensure there was a copy in the court’s file. However, because the trial court took the
report as the Estate’s offer of proof and because the Estate has not alleged any facts to
which Dr. Lalouche would have testified if questioned live that were not already in the
report, the Estate was not denied the opportunity to make an offer of proof.
III. Redacted Medical Records
During trial, the Estate attempted to introduce certified medical records from the
Visiting Nurses Association through Lana, the personal representative of the Estate and a
lay witness. ONB and Raelynn objected to their admission because no proper foundation
had been laid pursuant to Ind. Evid. Rule 702. Specifically, at trial, Raelynn argued
The objection would be once again that these are medical records that
contain observations and opinions as to [Mildred’s] medical condition, and
I think that this case are [sic] rendered by a nurse possibly, or a licensed
nurse once again, their observations and conclusions that are based on a
particular skill and expertise and training and those individuals have not
12
been produced nor has there been any witness produced to satisfy the
requirements of Indiana Rule [702].
(Tr. p. 55). The trial court ruled:
Before we broke, [the Estate] had offered Petitioner’s Exhibit “4” which
were certified medical records involving the Visiting Nurse treatment of
decedent, the objection was that although there was a foundation laid for
authenticity with the certification the records contained inadmissible
opinions and diagnoses. I sustained that objection and asked the parties to
see if they could work through the document and redact those parts which
were objectionable, the parties have done that . . . .
(Tr. p. 57). The Estate confirmed the trial court’s explanation on the record, by agreeing
“That’s right Judge, we have.” (Tr. p. 57).
First, as argued by ONB and Raelynn and we agree, the Estate acquiesced to the
redactions and therefore has now waived this issue for appellate review. See Linton v.
Davis, 887 N.E.2d 960, 968 (Ind. Ct. App. 2008), trans. denied. Waiver notwithstanding,
however, we will address the Estate’s contention on its merits.
In support of their respective arguments, both Appellees rely on Brooks v.
Friedman, 769 N.E.2d 696,698 (Ind. Ct. App. 2002), where Friedman introduced
certified medical records from medical providers during his own testimony. The Brooks
court stated that “[m]edical opinions and diagnoses must meet the requirements for expert
opinions set forth in Evid. R. 702 in order to be admitted into evidence.” Id. at 701.
Paraphrasing Evid. R. 702, the court concluded that the sponsoring witness must first be
qualified as an expert and then, once this foundational requirement has been met, the
strengths and weaknesses of the expert’s opinion may be questioned against the facts. Id.
at 701-02.
13
In Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011), Flores attempted to
introduce medical records directly related to his treatment by certain experts whose
credentials were never established and who were not available for cross-examination.
We affirmed the trial court’s exclusion of those records on the basis of Evid. R. 702.
Also in Wilkins v. Swafford, 811 N.E.2d 374, 388 (Ind. Ct. App. 2004), abrogated on diff.
grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), trans. denied, a party
sought to admit a doctor’s medical report through the testimony of his medical partner.
The partner did not prepare the report and was not involved in the examination leading to
the report. Id. at 390. This court affirmed the trial court’s exclusion of the report because
(1) there was no foundation to show that the doctor who prepared the report was an
expert, and (2) there was no opportunity to cross-examine him on his qualifications or the
basis for his opinions. Id. at 391-92.
Here, the Estate sought to admit Mildred’s medical records through the testimony
of Lana, the Estate’s personal representative. Lana is not a medical professional, but
rather a lay witness. Therefore, as Lana could not be qualified as a medical expert
pursuant to Evid. R. 702 and establish the foundation of the records, the trial court
properly excluded the references to expert opinions and medical diagnoses.
Nevertheless, the Estate now contends that the redaction went too far: “the
redaction which was done at the [c]ourt’s direction excluded the medications Mildred
was on, the nurses’ notes concerning her mobility, the nurses’ notes regarding Mildred’s
requirement for assistance in daily activities and much more. These were hardly
diagnoses or opinions, but were the kind of day to day nursing records which show the
14
patient’s status and her progress or the lack thereof by the patient.” (Appellant’s Br. p.
20). We disagree.
Redaction is simply the editing or revising of a document. It is commonly used to
make otherwise inadmissible exhibits admissible. Dumes v State, 718 N.E.2d 1171, 1174
(Ind. Ct. App. 1999). Comparing the redactions in the records to the unredacted
documents submitted by the Estate, the agreed upon black-lined sentences reference the
medications taken by Mildred and the nurses’ observations with respect to Mildred’s
cognitive and mental limitations. On the other hand, the documents are not redacted with
respect to Mildred’s level of assistance needed and assistive devices required.
As the nurses’ annotations about Mildred’s mental and physical well-being are
necessarily shaped by the nurses’ training and education, the redactions were subject to
the requirements of Evid. R. 702. See Kranda v. Houser-Norborg Med. Corp., 419
N.E.2d 1024, 1034 (Ind. Ct. App. 1981) (It should be noted that “[a]n expert witness can
draw upon all sources of information coming to his knowledge or through the results of
his investigation in order to reach a conclusions.”), reh’g denied. Therefore, absent an
expert witness to establish the foundation of the redactions, we conclude that the trial
court properly excluded these parts from the documents.
IV. Indiana Code section 33-42-2-2(4)
Lastly, the Estate contends that the mortgage is invalid because ONB failed to
follow the directives of Indiana Code section 33-42-2-2(4), which enacts the following:
A notary public may not do any of the following:
***
15
(4) Take the acknowledgment of any person who is blind, without first
reading the instrument to the blind person.
The Estate presented evidence from Keegan, ONB’s customer service representative and
loan originator, who testified that she explained the mortgage to Mildred but did not read
every single word to her. Keegan testified that Mildred informed her that she would need
help because she had trouble seeing and hearing. Speaking clearly and loudly enough for
Mildred to hear her, Keegan explained the terms of the documents to Mildred and
showed her where to sign. Keegan clarified the finance charges, the interest amount, and
the monthly charges. She clarified the processing fees and the late payment fees. At no
point during the proceeding did Keegan receive the impression that Mildred failed to
understand what was going on. However, Keegan was not the notary for the mortgage;
rather, she stated that her “assistant manager, Alice Weir[,]” was the notary that day. (Tr.
p. 233). The Estate never called Alice Weir (Weir) as a witness.
In Outlaw v. Danks, 832 N.E.2d 1108 (Ind. Ct. App. 2005), trans. denied, the
appellant challenged the validity of a will which was notarized but not read to a blind
testator. The Outlaw court upheld the validity of the will and concluded that Indiana law
does not require a will to be notarized in order to be valid. Id. at 1111. Therefore, as a
result, the defective notary “did no more than invalidate [the notary’s] signature[.]” Id.
Likewise, as a will, a mortgage does not need to be notarized in order to be enforceable in
Indiana. See I.C. § 32-29-1-5.
Here, Weir, the notary, did not testify at trial. Even assuming that the mortgage
was not read to Mildred and that Mildred could be characterized as being blind and not
16
merely “having trouble seeing,” the validity of the mortgage would not be affected, only
the notary’s signature. (Tr. p. 260). Therefore, we decline the Estate’s invitation to
invalidate the mortgage.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court properly excluded the
testimony of Dr. Lalouche pursuant to Evid. R. 702; (2) the Estate was not denied the
opportunity to make an offer of proof regarding Dr. Lalouche’s anticipated testimony; (3)
the trial court did not abuse its discretion by admitting redacted, certified copies of
medical records; and (4) ONB’s mortgage was not invalidated.
Affirmed.
MAY, J. and ROBB, J. concur
17