Gibson v. Soin

[Cite as Gibson v. Soin, 2022-Ohio-1113.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STEVEN WAYNE GIBSON, ADMIN. :
OF THE ESTATE OF DIANE MARIE :
GIBSON, DECEASED, et al. : Appellate Case No. 29154
:
Plaintiffs-Appellants : Trial Court Case No. 2019-CV-2594
:
v. : (Civil Appeal from
: Common Pleas Court)
AMOL SOIN, M.D., et al. :
:
Defendants-Appellees
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OPINION
Rendered on the 1st day of April, 2022.
...........
THOMAS M. GREEN, Atty. Reg. No. 0016361, 800 Performance Place, 109 North Main
Street, Dayton, Ohio 45402
Attorney for Plaintiffs-Appellees
SUSAN BLASIK-MILLER, Atty. Reg. No. 0005248 & SHANNON K. BOCKELMAN, Atty.
Reg. No. 0082590, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio
45402
Attorneys for Defendant-Appellee David J. Pappenfus, M.D.
JOHN F. HAVILAND, Atty. Reg. No. 0029599 & ELIZABETH D. WILFONG, Atty. Reg.
No. 0088712, 6 North Main Street, Suite 400, Dayton, Ohio 45402
Attorneys for Defendants-Appellees Amol Soin, M.D. and Ohio Pain Clinic, LLC
.............
EPLEY, J.
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{¶ 1} Steven Wayne Gibson, Administrator of the Estate of Diane Marie Gibson,
deceased, and Roger Gibson (collectively, “the Gibsons”) appeal from the trial court’s
judgment, following a directed verdict, in favor of Amol Soin, M.D., Ohio Pain Clinic, LLC,
and David J. Pappenfus, M.D. (collectively, “Defendants”) on their medical malpractice
and wrongful death claims. The Gibsons also appeal from the trial court’s judgment
denying their motion for a new trial. For the following reasons, the trial court’s judgments
will be affirmed.
I. Facts and Procedural History
{¶ 2} According to the complaint, Diane Gibson had a history of back pain. In
September 2015, she sought treatment from Dr. Soin, a pain management specialist who
was employed by Ohio Pain Clinic. Two months later, Dr. Soin implanted a temporary
spinal cord stimulator to alleviate Mrs. Gibson’s back pain. That device was replaced by
a Stage II Spinal Cord Stimulator (SCS) on December 31, 2015. In January and
February 2016, Mrs. Gibson underwent additional surgical procedures due to an infection
at the surgical site and exposed wires from the stimulator. During one of those
procedures, the SCS was removed.
{¶ 3} On April 21, 2016, Dr. Soin re-implanted the SCS in Mrs. Gibson’s back.
Prior to conducting the procedure, he ordered a blood test and an electrocardiogram
(EKG) for the purpose of determining whether Mrs. Gibson was healthy enough to
undergo the surgery and anesthesia. The bloodwork indicated that Mrs. Gibson had low
potassium, and her EKG showed abnormal T waves and prolonged Q waves.
Nevertheless, the surgery proceeded as scheduled. Dr. Pappenfus was the
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anesthesiologist for the procedure. Two days later, on April 23, 2016, Mrs. Gibson died
at home at the age of 64. According to Dr. Soin and Ohio Pain Clinic’s appellate brief,
the coroner concluded that the cause of death was arteriosclerotic cardiovascular disease
with bronchopneumonia contributing. The Gibsons state that she died of cardiac
arrhythmia.
{¶ 4} Steven Wayne Gibson, as administrator of Mrs. Gibson’s estate, and Roger
Gibson, Mrs. Gibson’s surviving spouse, originally filed a medical malpractice and
wrongful death action against Defendants in October 2017. Gibson v. Soin, Montgomery
C.P. No. 2017-CV-4647. That action was voluntarily dismissed in March 2019, after
Defendants sought to exclude the testimony of the Gibsons’ medical expert, Dr. David J.
Utlak, a cardiovascular physician who is board-certified in internal medicine and
cardiology. The Gibsons refiled the action in this case on June 5, 2019.
{¶ 5} In their complaint, the Gibsons alleged that Mrs. Gibson’s low potassium,
abnormal T waves, and prolonged Q waves put her at an increased risk of complications,
including sudden death, if subjected to the stress of surgery and anesthesia. The
Gibsons claimed that Defendants breached their duty of care in failing to review and
properly evaluate Mrs. Gibson’s presurgical testing and in failing to take steps to remedy
the abnormal conditions demonstrated by the tests. The complaint was supported by an
affidavit of merit from Dr. Utlak, the same medical expert from the first action.
{¶ 6} Prior to trial, Defendants filed a motion in limine seeking to exclude the
testimony of Dr. Utlak. Dr. Utlak was expected to testify, in part, that the failure to refer
Mrs. Gibson to a cardiologist prior to surgery was below the standard of care and thus
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negligent. Defendants asserted that Dr. Utlak’s testimony was irrelevant, did not assist
the trier of fact, and did not meet the requirements of Evid.R. 702. They further
contended that Dr. Utlak was not competent under Evid.R. 601 to testify against Dr. Soin,
a pain management specialist, or Dr. Pappenfus, an anesthesiologist, on the issue of
liability. Defs’ Motion in Limine, Apr. 7, 2021. Addressing Evid.R. 601(E)(3) (formerly
Evid.R. 601(D)(3)), they argued:
While Dr. Utlak, as a cardiologist, may be qualified to read and interpret an
EKG, he does not understand this minimally invasive surgical procedure
and anesthesia, its effect on the body, and whether an anesthesiologist or
pain management specialist needs to consult with a cardiologist or other
specialist prior to surgery. He has no experience as the physician making
the initial decision of whether to consult a cardiologist. His involvement
occurs after the decision to consult a cardiologist has been made. Having
no education, training or experience in pain management, spinal cord
stimulators or anesthesia, Dr. Utlak has no competence or expertise to offer
an opinion regarding whether or not it was within the standard of care to
proceed with the scheduled placement of the spinal cord stimulator on April
21, 2016.
Id. at 8. The Gibsons responded that, “[a]s the physician who does the work up for a
patient with an abnormal EKG, to whom pain management and anesthesiologists
routinely, as a matter of course under the applicable standard of care, refer such patients
for assessment, Dr. Utlak is the perfect witness to opine on the standard of care in dealing
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with pre-surgical cardiac testing.” Pls’ Opp. Mem., Apr. 20, 2021, at 2.
{¶ 7} On May 2, 2021, the trial court rejected Defendants’ arguments that Dr.
Utlak’s testimony was irrelevant and unreliable. However, upon review of Dr. Utlak’s
deposition testimony, the trial court was unable to reach a decision as to whether (1) the
doctor was qualified under Evid.R. 702(B) to offer an opinion as to the standards of care
applicable to Defendants or (2) Dr. Utlak was competent to testify against Defendants
under Evid.R. 601(E)(3). The court held those issues in abeyance pending the Gibsons’
questioning of Dr. Utlak at trial as to his qualifications to testify as an expert in the matter.
{¶ 8} A jury trial commenced on May 3, 2021; Dr. Utlak was called to testify on the
afternoon of May 4. During his testimony, Dr. Utlak stated that he was involved in cardiac
presurgical testing “almost on a daily basis,” either through requests from his existing
cardiology patients or from surgeons asking him to evaluate whether a patient can
withstand a surgical procedure. Trial Tr. 11. When asked “are you familiar with what the
standard of care is with respect to reviewing test results and taking action on test results
presurgical?” Dr. Utlak responded:
Well, I think that I probably do. I – I think that those things have changed
over time. With that being said, there’s a lot of common sense just involved
with it and, you know, every patient is different. They’re – they don’t fit,
necessarily, into a category of statistical conglomerates, if you will, so you
need to make that decision on – on a –* * * specific personal basis for each
patient is what I’m trying to say.
Trial Tr. 12.
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{¶ 9} Dr. Utlak testified that he was familiar with the standard of care in the pain
management surgical field with respect to presurgical cardiac screenings. He explained
that “the presurgical clearance for any surgical specialty is the same in terms of a
preoperative evaluation to make sure that the patient can withstand the stresses of
anesthesia – whatever kind of anesthesia that might be – and the surgical procedure
itself, because if some of the things that happen to the human body when we intervene
by placing the patient under anesthesia and/or cutting certain parts of the body, if you will,
for the surgical procedure which puts the heart and the body under quite a bit of stress.
So that really comes under my purview. That does not come under the purview of the
surgeon.” Trial Tr. 18.
{¶ 10} The Gibsons’ counsel further asked Dr. Utlak:
Q Are you knowledgeable, sir, of the standard of care with respect to the
pain management physician’s decision on when to contact the heart doctor,
such as yourself, in trying to do this sort of presurgical assessment?
A Yes.
Q And again, sir, how do you know that?
A Well, once again, you have to, I think, generalize this not just from a pain
management standpoint – from any surgical standpoint. Because what
we’re dealing with here is the cardiac risk of going through anesthesia and
going through the surgical procedure whether it be brain surgery, whether
it be carotid surgery or abdominal surgery, aortic surgery, orthopedic
surgery, pain management, what have you. The – the judgment of the –
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of the cardiologist in a case to determine the risk of a cardiac event
occurring is in our purview and nobody else’s. That doesn’t mean that the
surgeons or pain management surgeons, if you will, don’t – aren’t involved
in that. They’re involved in that decision, of course. But the bottom line is
that when it comes to the expertise to know when and – when or when not
a patient should go through any surgery if there are cardiac issues is clearly
and purely and only in the purview of either the internist who feels
comfortable with that and/or the cardiologist which is where most of the
patients end up.
Trial Tr. 18-19.
{¶ 11} The Gibsons’ counsel asked similar questions with respect to the standard
of care for anesthesiologists and received similar answers from Dr. Utlak. When asked
how he knew the standard of care for an anesthesiologist in doing presurgical cardiac
screening, Dr. Utlak reiterated that “the cardiac issues are not within the expertise of
anesthesiologists nor are they in the expertise of any surgeon or pain management
doctor. They’re within the purview of the expertise of a cardiologist and, potentially, an
internist who might have some cardiology training * * *.” Id. at 20.
{¶ 12} After hearing argument from counsel, the trial court orally sustained
Defendants’ objection to Dr. Utlak’s expert testimony. Although the court found that Dr.
Utlak was qualified as a cardiologist for purposes of Evid.R. 702(B), it concluded that he
did not satisfy the competency requirements of Evid.R. 601(E)(3). After discussing two
cases that had been cited by the parties, the court stated:
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* * * Dr. Utlak has testified that the expertise to know whether or not
surgery should go forward is in his purview only and that he’s the expert in
that matter, not them.
Thus, there was not any testimony as to what a pain management
specialist or an anesthesiologist goes through with respect to their review
of a presurgical testing that would include a pre – or a cardiac workup.
What they look at, what they review, how they review it and the extent to
their knowledge of their review [sic] of any – in this case, an EKG or
potassium level and how they make that evaluation before they make a
determination then to send a case to a cardiologist which is then when Dr.
Utlak would pick up the case much like the Taulbee case. It gets picked
up later on in that.
Thus, a preoperative review of that basic metabolic panel and the
EKG viewed in light of whether or not they’re fit for surgery was not testified
to as what the standard of care then would be and how they review it and
when a referral would then be made to the cardiologist for their seeking that
higher level diagnosis.
Thus, this Court finds that Dr. Utlak is not competent to testify to the
standard of care of the anesthesiologist or the pain management physician
in performing this surgery.
Trial Tr. 31-32.
{¶ 13} Following the trial court’s ruling, counsel for the Gibsons provided an oral
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proffer of Dr. Utlak’s anticipated testimony and also referred the trial court to his deposition
testimony. Defendants then moved for a directed verdict, which the trial court granted.
On May 7, 2021, the trial court issued a judgment entry that (1) memorialized its grant of
Defendants’ motion for a directed verdict at the close of the Gibsons’ case-in-chief and
(2) entered judgment in favor of Defendants and against the Gibsons.
{¶ 14} Three days later, on May 10, 2021, the Gibsons filed a motion for a new trial
on the ground that the trial court abused its discretion in finding Dr. Utlak incompetent as
an expert witness. Before the trial court ruled on that motion, they appealed from the
May 7, 2021 judgment. At the Gibsons’ request, we remanded the matter to the trial
court to resolve the pending motion for a new trial. Decision and Entry, June 24, 2021.
The trial court denied the motion on June 29, 2021, following which the Gibsons filed an
amended notice of appeal to include that ruling.
{¶ 15} The Gibsons raise two assignments of error, which we will address together.
II. Competence of Medical Expert Under Evid.R. 601
{¶ 16} In their first assignment of error, the Gibsons claim that the trial court “erred
as a matter of law in finding that [their] expert witness, David J. Utlak, M.D., was
incompetent to give expert testimony pursuant to Evid.R. 601(D)(3) [sic].” Their second
assignment of error claims that the trial court erred in overruling their motion for a new
trial, which raised a similar issue.
{¶ 17} Evid.R. 601 governs the competency of a witness. When the Gibsons’
complaints were filed, Evid.R. 601(D) addressed the competence of a witness to testify
regarding liability in a medical claim. The Rule was amended in 2020 and 2021, and
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both amendments caused the medical expert provision to be renumbered. By the time
of trial in May 2021, Evid.R. 601(D) had been renumbered to Evid.R. 601(E). Effective
July 1, 2021, that provision is now Evid.R. 601(B)(5). The 2020 and 2021 amendments
made no substantive changes to the provision.
{¶ 18} In general, every person is competent to be a witness. Evid.R. 601(A).
However, Evid.R. 601(B)(5) disqualifies persons from giving expert testimony on liability
in medical claims unless:
(a) The person testifying is licensed to practice medicine and surgery,
osteopathic medicine and surgery, or podiatric medicine and surgery by the
state medical board or by the licensing authority of any state;
(b) The person devotes at least one-half of his or her professional time to
the active clinical practice in his or her field of licensure, or to its instruction
in an accredited school and
(c) The person practices in the same or a substantially similar specialty as
the defendant. The court shall not permit an expert in one medical
specialty to testify against a health care provider in another medical
specialty unless the expert shows both that the standards of care and
practice in the two specialties are similar and that the expert has substantial
familiarity between the specialties.
Evid.R. 601(B)(5).
{¶ 19} The third prong is a relatively new provision. When Evid.R. 601 was
adopted in 1980, it was not part of the Rule, nor was it part of R.C. 2743.43, the statute
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that Evid.R. 601 incorporated in part. It was added to R.C. 2743.43 in 2004, see 2004
Sub.H.B. 215, and included in the 2016 amendments to Evid.R. 601(B).
{¶ 20} “A trial court has discretion to determine whether a witness is competent to
testify as an expert, and the trial court’s decision will not be reversed absent a clear
showing that the court abused its discretion.” Celmer v. Rodgers, 114 Ohio St.3d 221,
2007-Ohio-3697, 871 N.E.2d 557, ¶ 19; see also Evid.R. 104(A) (“Preliminary questions
concerning the qualification of a person to be a witness * * * shall be determined by the
court[.]”). The trial court abuses its discretion when its decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶ 21} Pursuant to the first sentence of Evid.R. 601(B)(5)(c), Dr. Utlak would not
be qualified to offer expert testimony about the standard of care unless he “practice[d] in
the same or a substantially similar specialty” as Dr. Soin and/or Dr. Pappenfus. Dr. Utlak
is a cardiologist. Dr. Soin and Dr. Pappenfus are a pain medicine specialist and an
anesthesiologist, respectively. There was no evidence that Dr. Utlak practiced “the same
or a substantially similar specialty” as those practiced by Dr. Soin and Dr. Pappenfus.
See Rose v. Tievsky, 2d Dist. Montgomery No. 29024, 2021-Ohio-3051, ¶ 94 (family
practice physician’s affidavit could not be substituted for a proper Civ.R. 10(D)(2) affidavit
of merit where the doctor failed to meet the requirement of Evid.R. 601(B)(5)(c); the doctor
provided no evidence that his specialty was the same or substantially similar to that of the
defendant, a radiologist); Couch v. Dayton Pain Ctr., LLC, 2d Dist. Montgomery No.
28891, 2021-Ohio-1428, ¶ 18 (a neurosurgeon’s testimony about standard of care
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applicable to defendant-physician, who was board-certified in other specialties, was
subject to exclusion).
{¶ 22} The Gibsons assert that Dr. Utlak satisfies the second sentence of Evid.R.
601(B)(5)(c), which states that a “court shall not permit an expert in one medical specialty
to testify against a health care provider in another medical specialty unless the expert
shows both that the standards of care and practice in the two specialties are similar and
that the expert has substantial familiarity between the specialties.” (Emphasis added.)
They emphasize that Dr. Utlak testified that the standard of care for recognizing and
taking action concerning presurgical cardiac testing is the same across all three
specialties – cardiology, pain management surgery, and anesthesiology. They also
point to Dr. Utlak’s testimony that he is regularly involved in the presurgical cardiac
screening performed by surgeons and anesthesiologists, such as Drs. Soin and
Pappenfus.
{¶ 23} Upon review of the record before us, the trial court did not abuse its
discretion in concluding that Dr. Utlak did not satisfy the requirements of Evid.R.
601(B)(5)(c).
{¶ 24} At the outset, there is no question that Dr. Utlak is well-versed in presurgical
cardiac testing. He indicated that it is a large part of his practice and that he is involved
in such testing “almost on a daily basis.” He stated, however, that his involvement
typically occurs upon direct referral from surgeons or when his existing cardiology patients
request presurgical testing on behalf of their surgeon. When asked about the standard
of care with respect to reviewing presurgical test results and taking action based on those
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results, Dr. Utlak indicated that “every patient is different” and any decision needed to be
made on a “specific personal basis for each patient.”
{¶ 25} Dr. Utlak testified, generally, that he was familiar with the standard of care
for presurgical cardiac testing by a pain management specialist, such as Dr. Soin, or an
anesthesiologist, such as Dr. Pappenfus. He stated that the standard of care is the same
for all surgical specialties and for anesthesiologists with respect to a preoperative
evaluation to make sure that the patient can withstand the stresses of anesthesia and the
surgical procedure itself. Dr. Utlak further testified, generally, that he was
knowledgeable about the standard of care with the respect to both a pain management
specialist’s and an anesthesiologist’s decision on when to contact a cardiologist.
{¶ 26} When asked to elaborate, however, Dr. Utlak did not say that he and
Defendants shared similar standards of care, and he did not testify that he and
Defendants would review the same information and use a similar standard of care in
determining whether further cardiac testing were required prior to surgery. Instead,
when asked how he knew of the standards of care, Dr. Utley expressed that only a
cardiologist or certain internists have the expertise to know when a patient with cardiac
issues should go through a surgical procedure.
{¶ 27} Based on Dr. Utlak’s testimony, the trial court reasonably concluded that
Dr. Utlak did not establish that (1) the standard of care and practice for a cardiologist upon
referral and the standard of care for Defendants with respect to presurgical cardiac testing
were similar and (2) Dr. Utlak had substantial familiarity with the standards of care
required of Drs. Soin and Pappenfus.
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{¶ 28} In concluding that Dr. Utlak was not competent to testify as an expert on the
standard of care in this case, the trial court focused on two cases: Taulbee v. Dunsky,
12th Dist. Butler No. CA2003-03-059, 2003-Ohio-5988, and Schutte v. Mooney, 165 Ohio
App.3d 56, 2006-Ohio-44, 844 N.E.2d 899 (2d Dist.), which distinguished Taulbee. The
trial court cited Schutte as an example of when an expert in a different specialty has
“substantial familiarity” with another specialty and cited Taulbee as an example of when
that did not occur. We note that both cases were decided prior to the adoption of former
Evid.R. 601(D)(3), and both concerned expert testimony under Evid.R. 702, not Evid.R.
601. To the extent that Taulbee and Schutte are instructive, we agree with the trial
court’s assessment that this case is analogous to Taulbee.
{¶ 29} In Taulbee, the plaintiff took her husband to the emergency room because
he was complaining of chest pain. He was diagnosed with chest wall pain, given
medication, and advised to see his family physician if he did not improve. Three days
later, he contacted his family physician, who diagnosed gastroesophageal reflux disease.
He died two days later of an aortic dissection. His widow sued the family physician and
the emergency-room physician for failing to properly diagnose him.
{¶ 30} At trial, the plaintiff attempted to present the testimony of a cardiothoracic
surgeon regarding the standard of care in diagnosing and treating aortic dissections.
The defendant-physicians objected, arguing that he was not qualified to testify regarding
the standard of care of an emergency-room physician and a family practitioner. The trial
court agreed and granted a directed verdict to the doctors.
{¶ 31} On review, the Twelfth District concluded that the trial court did not abuse
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its discretion when it excluded the proposed expert’s testimony. The trial court had made
clear that it was not excluding the expert’s testimony because of his specialty, but
because “he had not provided sufficient evidence to show that he was familiar with the
standard of care applied to emergency room physicians and family care practitioners.”
Taulbee at ¶ 21. The appellate court noted that, although the proposed expert had
previously worked in an emergency room, he had worked exclusively as a surgeon since
1978. In addition, although he worked with emergency-room doctors on a weekly, if not
daily, basis, assisting them with diagnoses, his involvement in the diagnosis came at a
point when aortic dissection was “already strongly suspected as a diagnosis.” Id. at ¶ 22.
The proposed expert, therefore, did not “have recent experience interfacing with patients
who come into the emergency room or doctor's office with general complaints of chest
pain.” Id. Although the cardiothoracic surgeon “was highly qualified to diagnose and
treat aortic dissections,” the doctor’s “involvement as a cardiothoracic surgeon comes at
a much later point in the clinical picture than the situation where a person initially consults
a physician for problems.” Id. at ¶ 24.
{¶ 32} We distinguished Taulbee in Schutte. In that case, Schutte went to the
emergency room on the advice of an urgent-care physician, who suspected that she had
developed deep vein thrombosis (DVT) in her left leg. The urgent-care physician also
called the emergency room concerning her suspicions and indicated that Schutte was on
her way. The emergency-room physician conducted a physical examination, ordered a
venous Doppler ultrasound, and concluded that the test was negative. Schutte was
released and later died of pulmonary thromboembolism.
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{¶ 33} In his medical malpractice action, Schutte’s surviving spouse prepared to
present the testimony of a vascular surgeon. The emergency-room doctor-defendant
objected, under Evid.R. 702(B), to the proposed expert’s qualifications to testify as to the
standard of care to be applied to an emergency-room physician. Citing Taulbee, the trial
court sustained the objection, but we reversed. We noted that, although the proposed
expert typically diagnosed a patient with DVT upon a referral from another physician who
had expressed concern about a vascular condition of DVT, the emergency-room
physician had been in a similar scenario, as the urgent-care physician had contacted the
emergency room and expressed concerns that Schutte had DVT. Moreover, unlike the
proposed expert in Taulbee, Mr. Schutte’s proposed expert “presented significant
evidence that the standard of care for the diagnosis of DVT does not vary based on
whether the patient presents herself to a family practitioner, an emergency-room
physician, or a specialist in vascular disease.” Id. at ¶ 35. We thus held that the trial
court erred in concluding that the expert’s lack of recent experience in emergency
medicine rendered him unqualified to testify as to the standard of care required of the
emergency-room physician.
{¶ 34} Here, Dr. Soin had ordered presurgical cardiac testing, and both he and Dr.
Pappenfus made a determination that Mrs. Gibson’s surgical procedure could proceed
without first referring her to a cardiologist. Dr. Utlak typically evaluates whether a patient
is healthy enough to proceed with a surgical procedure upon referral from the surgeon,
either directly or indirectly. Although Dr. Utlak asserted generally that he was familiar
with the standard of care required of Defendants, he did not testify that he and Defendants
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shared a similar standard of care; rather, he testified that the expertise to determine
whether a surgical procedure should proceed was within his purview as a cardiologist.
In addition, Dr. Utlak did not testify that his standard of care when evaluating a referred
patient was a similar standard of care required of a surgeon or anesthesiologist upon
reviewing presurgical cardiac testing results. As noted by the trial court, there was no
testimony about what Defendants should review when determining whether to refer a
patient to a cardiologists and how Dr. Utlak was familiar with that standard of care. In
short, we agree with the trial court that the circumstances present were analogous to
Taulbee.
{¶ 35} The trial court did not abuse its discretion in concluding, pursuant to Civ.R.
601, that Dr. Utlak was not competent to give expert testimony as to the Defendants’
standard of care in this particular case. The Gibsons’ assignments of error are overruled.
III. Conclusion
{¶ 36} The trial court’s judgments will be affirmed.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Thomas M. Green
Susan Blasik-Miller
Shannon K. Bockelman
John F. Haviland
Elizabeth D. Wilfong
Hon. Mary E. Montgomery