Carr seeking third trial for plaintiff; Claims defense let sympathy cloud jurors' judgment

Amelia Flood Sep. 29, 2010, 11:24am



Madison County Circuit Judge Barbara Crowder has taken under advisement a plaintiff's motion to set aside a second medical malpractice defense verdict and give the plaintiff a third trial.

Crowder heard arguments from Rex Carr, attorney for plaintiff Douglas Storm, and Michael Murphy for the defense on Wednesday afternoon.

Carr's client is asking Crowder to set aside the second verdict that defendant Dr. Patrick Zimmermann won in the retrial of Douglas Storm's suit.

Storm sued Zimmermann and his Collinsville practice for allegedly failing to diagnose skin cancer in his wife, Maria Storm, when she went to see him about a mole on her back.

Carr claimed in his arguments and post-trial motion that the line of questioning defense attorney Ted Dennis used implied Zimmermann had never missed a mole, violating the order.

Dennis represents Zimmermann; Murphy represents his practice.

Carr's motion argues that the jury was unfairly swayed by Dennis' alleged violation and that it found against the weight of the evidence.

The defense filed a motion opposing the request for a new trial last Friday.

In that response, the defense points to the expert testimony of melanoma expert Dr. Kellye McMasters of Louisville, Ky. and others as proof that the jury returned the proper verdict for Zimmermann.

The defense argues that Dennis did not step over the line set by the court when he asked his client about his record of diagnosing moles.

The defense denies it violated line of questioning rules.

In Wednesday arguments, Carr called Dennis' line of questioning about Zimmermann's physician's "eye" a "set-up."

"Why did the jury decide the way they did?" Carr said. "Quite frankly they like Dr. Zimmermann. They brought in a planned scene for the jury as 'he never missed one and he didn't miss this one.'"

Carr cited expert testimony and argued it was clear that Zimmermann had violated the standard of care.

The jury, Carr said, had let sympathy brought on by Dennis' line of questioning cloud their judgment.

Murphy, citing his own case's experts and their testimony about Maria Storm's illness, told Crowder the verdict had not been
against the weight of the evidence.

Murphy also questioned how much of a factor the alleged violation of the motion in limine would have been in the jury's decision.

"I think it's inconceivable that one question out of a two week trial could deprive a plaintiff of a fair trial," Murphy said.

Crowder told both parties she would take the matter under advisement as well as a move for over $3,000 in court costs filed by the defense.

Carr said his client objects to the costs because the defense did not use the depositions in question and that they waived their right to ask for them after the suit's 2007 trial.


Zimmermann was the second doctor Maria Storm saw, asking to have a mole in the middle of her back removed.

Zimmermann removed the mole in 1999.

Although it did not grow back, Maria Storm was diagnosed with
advanced melanoma in 2003.

She later died of the disease.

Her husband claims that Zimmermann failed to diagnose his wife's cancer and failed to follow the proper procedures to have the removed mole tested for cancer.

Zimmermann has denied that he did anything wrong.

The suit's first trial ended with a victory for Zimmermann in January 2007.

That verdict was thrown out by Crowder after it came to light that one of the jurors in the case lied during jury selection.

The defense unsuccessfully appealed the case.

The suit's second trial took up over two weeks in late July this year.

That trial also featured juror issues.

A male juror was dismissed from the panel.

A female juror overslept, delaying the start of a day's testimony over an hour.

The second jury also found for Zimmermann.

The plaintiff then filed a post-trial motion alleging that Dennis intentionally violated a motion in limine during the course of the trial.

That motion in limine limited the questions that could be asked about Zimmermann's history of catching suspicious moles.

Crowder presided over both the previous trials in the case.

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

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