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Court rules gynecologist can’t testify on mental competency

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A bank is able to foreclose on a mortgage against the estate of a deceased 95-year-old woman who opened the line of credit to pay her granddaughter to take care of her. But the elderly woman’s daughter argued the granddaughter unduly influenced Mildred Borgwald to open the account.

Borgwald insisted on remaining on her own in her home despite failing health and limited sight. Raelynn Pound, Borgwald’s granddaughter, agreed to take care of her grandmother around the clock for $650 per week. The two went to Old National Bank to open an equity line of credit against her home in the amount of $36,000. Nearly a third of this was paid to Pound within a week of opening; $650 was paid out weekly from November 2007 through June 2008. Borgwald died in August 2008.

Her daughter, Lana McGee – who is also Pound’s mother – opened Borgwald’s estate. The bank filed a claim for $36,274.54, seeking to foreclose on the home’s mortgage. The estate filed a petition to recover assets from Pound and asserted fraud and undue influence.

After holding a bench trial, the court found Borgwald had the mental capacity to enter into the contract with the bank and was not unduly influenced by Pound. ONB was entitled to have the mortgage foreclosed as a valid and paramount lien on Borgwald’s property.

The estate appealed, arguing its proffered expert witness Dr. Robert Lalouche should have been included. But Lalouche, a gynecologist, had never treated Borgwald and formed his opinions only based on the medical records submitted by the estate.

“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,” Judge Patricia Riley wrote in In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound, 84A01-1302-ES-80.

The judges found the estate was not denied the opportunity to make an offer of proof and the trial court properly excluded references to expert opinions and medical diagnosis because the estate sought to admit Borgwald’s medical records through the testimony of McGee. But McGee is a lay witness and not a medical expert under Evidence Rule 702.

Finally, the Court of Appeals declined to find the line of credit was invalid because the bank customer service representative’s notary did not read every single word of the document to Borgwald, as required under I.C. 33-42-2-2(4).  But the estate never called the notary as a witness, and the judges pointed out that a mortgage does not need to be notarized in order to be enforceable in Indiana.

“Even assuming that the mortgage was not read to Mildred and that Mildred could be characterized as being blind and not merely ‘having trouble seeing,’ the validity of the mortgage would not be affected, only the notary’s signature. Therefore, we decline the Estate’s invitation to invalidate the mortgage,” Riley wrote.

 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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