Koslen v. Chattman9/6/2001
Laura and Jack Koslen appeal from a common pleas court judgment entered pursuant to a jury verdict in connection with their legal malpractice action against Laurie Starr and the law firm of Chattman, Gaines & Stern L.P.A. arising from her representation of the Koslens' medical malpractice action against the American Red Cross and Drs. Dickman and Schneider, Laura Koslen's treating physicians. On appeal, the Koslens claim that the trial court erred in denying a new trial, in permitting the defense expert to respond to improper hypothetical questions, and in permitting Starr to testify about the conduct of the Koslens' prior counsel, contrary to the court's ruling on a motion in limine. After careful review, we have concluded that these claims are not well taken, and therefore, we affirm the judgment of the court.
The record here reflects that Laura Koslen had been diagnosed with Factor XI disorder, a rare blood condition that often results in excessive bleeding. Due to her increased risk of bleeding, her hematologist, Dr. Dickman, ordered blood transfusions prior to a laparoscopy procedure, on May 3, 1988, and her obstetrician, Dr. Schneider, also ordered blood transfusions prior to the birth of her child, on January 28, 1989. Sometime in 1990, Laura Koslen was also diagnosed with the Hepatitis C virus, which she believed she contracted from contaminated blood products.
As a result, the Koslens retained attorney Jack Turoff to pursue a medical malpractice action against the American Red Cross, which had allegedly negligently provided tainted blood, and against her treating physicians, who had allegedly negligently ordered the blood transfusions. On November 22, 1991, Turoff filed that malpractice action in common pleas court.
On April 2, 1993, however, the court dismissed the action without prejudice, pursuant to Civ.R. 41(B)(1), because Turoff had failed to obtain expert reports by the March 3, 1993 cut-off date, as previously ordered by the court.
Almost a year later, on March 25, 1994, Turoff refiled the Koslens' malpractice action, in conformity with R.C. 2305.19, the savings statute, which states the following:
In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date.
The court subsequently set the case for trial on May 15, 1995. On April 25, 1995, just three weeks prior to the trial date, Turoff filed a notice of withdrawal from representation. The Koslens, after several unsuccessful attempts to find new counsel, retained Laurie Starr, of the law firm Chattman, Gaines & Stern, L.P.A. (CG&S;, who, after reviewing their file, determined that her new clients, the Koslens, could not win their case with the existing medical experts, whom Turoff had obtained.
Thereafter, on May 4, 1995, Starr filed a motion to continue the impending trial date, and also on May 8, 1995, she filed another motion to request an extension of the discovery cut-off date in an effort to obtain new experts for trial. The trial court held a hearing to consider both motions. Subsequently, on May 16, 1995, the court granted the motion and continued the trial to October 16, 1995, but did not expressly journalize an entry granting or denying the motion to reopen the discovery period for identification of new experts.
On June 5, 1995, Starr, after discussion with her clients, filed a voluntary notice to dismiss the case without prej
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