Oversleeping juror delays med mal retrial; Case got second chance due to juror problem

Amelia Flood Jul. 22, 2010, 6:42am



The second day of a Madison County medical malpractice retrial --whose first verdict was set aside due to a juror's behavior-- got a late start Thursday as a juror overslept, missing the 9 a.m. start.

The first trial of the case brought by plaintiff Douglas Storm over the alleged misdiagnosis of his wife's skin cancer ended in a verdict for defendant Dr. Patrick Zimmermann in January 2007.

However, Douglas Storm won an appeal and was granted a new trial after a juror in the first case lied about his involvement in two pending Madison County personal injury suits.

Douglas Storm is suing Zimmermann, a Collinsville family practice doctor, for allegedly failing to properly test and diagnose in 1999 a cancerous mole on his wife's back.

Maria Storm was diagnosed with melanoma in 2003. At the time, the disease had spread to other organs beyond the skin.

She died in 2005 from the disease.

Her husband is seeking at least $50,000 in damages per count of his suit and costs.

Zimmermann denies the claims.

Another juror on Thursday morning was excused from the panel, but Circuit Judge Barbara Crowder did not specify as to why the male juror was let go.

Crowder questioned the remaining jurors about whether the excused juror had made comments about the case to them or if his words or conduct during breaks had affected their impartiality.

The panel assured the judge it had not.

Crowder also delayed the trial's start so the juror who overslept could come to court rather than excuse a second person in one day.

Both attorney Rex Carr for plaintiff Douglas Storm and Zimmermann's counsel Ted Dennis told Crowder that they would not agree to put the case to 11 people rather than a full panel.

The trial resumed after the late juror's arrival around 10:15 a.m.

Zimmermann retook the stand and was questioned by Carr about his diagnostic practices and the procedures for testing possibly cancerous lesions.

Carr questioned Zimmermann at length about a conversion he allegedly had with another of Maria Storm's doctors, wherein the other doctor supposedly warned Zimmermann of the coming lawsuit.

That line of questioning drew several objections from Dennis.

Carr and Dennis bickered at points over the issue, with Crowder refereeing.

"Don't argue all the way up, argue up here," Crowder told both after asking the attorneys to approach the bench for a second time in less than an hour.

Carr hammered at Zimmermann's treatment of Storm.

The attorney also took issue with differences between the doctor's live testimony and answers he gave during his original testimony three years ago.

"Has the truth changed between January of '07 and July of '10?" Carr asked. "The truth doesn't change with time, does it sir?"

Dennis objected at several points to Carr's way of asking questions, telling Crowder Carr had a "speech before every question."

Zimmermann insisted he properly treated the mole.

"When I examined the mole, there was no doubt in my mind that it was benign," he said.

Jurors heard testimony Wednesday that included Maria Storm's 2005 video deposition in the case as well as opening statements.

During opening statements, both attorneys indicated that the case would last to the end of next week.

The suit's original trial also lasted more than two weeks.

Carr and Troy Walton represent Douglas Storm.

Ted Dennis represents Zimmerman.

The practice is represented by Michael Murphy.

A former defendant in case, Dr. James Dalla Riva, Maria Storm's gynecologist, was dropped from the suit four years ago.

Crowder presided over the suit's first trial as well.

The Storm suit is Madison case number 03-L-999.

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