Stack to rule on retrial in Cantrell med mal case

By Steve Gonzalez | Nov 29, 2006

Madison County Circuit Judge Daniel Stack

Richard Hunsaker

Lawyers for Dolores Cantrell, M.D. say that a defense verdict reached in a Madison County medical malpractice trial last May should stand and Madison County Circuit Judge Daniel J. Stack appeared to agree after hearing 90 minutes of arguments on Tuesday.

Stack had not issued an order as of Wednesday afternoon. However, in open court he stated that he did not believe there were grounds for a new trial.

Plaintiff's attorneys Rocco Marrese and Morris Chapman asked Stack for a new trial claiming their clients were deprived of a fair trial.

Marrese alleged that attorneys for Cantrell, a Troy family doctor, violated Supreme Court Rule 213 regarding written interrogatories.

Cantrell is represented by Richard Hunsaker, Mary Jo Kuca and Sara Ingram. Ingram did not participate during the trial as she received her law license just last month.

The estate of William Hoppe II filed suit against Cantrell on Feb. 27, 2004, claiming Cantrell misdiagnosed Hoppe's unstable angina on July 18, 2003, which caused his death the next day.

On May 11, after a nine-day trial, a Madison County jury found that Cantrell met the standard of care in treating Hoppe.

Marrese contends that the question before the court and the jury was which group of health care providers apply these standards of care.

He claims American College of Cardiology (ACC) 2002 guidelines outline the standard of care for the treatment of acute coronary syndrome.

Marrese argued Cantrell did not have an opinion at the time of her interrogatories about the 2002 ACC guidelines, but at trial she had an opinion.

"During redirect of Cantrell, Hunsaker elicited a new opinion that the American College of Cardiology article or the ACC guidelines had not been adopted by the American Academy of Family Practitioners," Marrese said.

He said he objected to the question because it lacked foundation and was also a Rule 213 violation because Cantrell never disclosed her opinion.

"How can she know what they adopted, she was not an officer of that organization," Marrese said. "I never asked her or opened the door to which organizations adopted the guidelines."

"The testimony was not a permissible elaboration or logical extension of any previously disclosed opinion of this expert and instead constituted an improper undisclosed opinion."

Marrese told Stack Cantrell's opinion rested at the heart of their case and that no other defense expert could state affirmatively, as Cantrell did, an opinion that the ACC guidelines had not been adopted by the Academy.

Marrese also told Stack he allowed Hunsaker to use leading questions on direct examination that was highly prejudicial to their case.

Marrese claims Stack "uniformly overruled" objections.

"The repeated overruling of plaintiffs objections grossly interfered with counsel's ability to controvert the defense within the rules."

Marrese claims that the expert witnesses for the defense never testified within the rules of direct examination that Cantrell met the standard of care.

"This and any court had broad discretion to overrule objections to leading questions," Marrese said. "However, the use of leading questions to completely lay-out the defense case was so pervasive that it deprived plaintiffs of a fair trial."

Hunsaker responded by telling Stack it would be "fundamentally unfair to order a retrial"

"Mr. Marrese would like the court to believe that the sole issue in the case revolves around whether or not American College of Cardiology guidelines apply to the field of Family Practice," Hunsaker said. "It is clear that such a simplification of the issues is, at best, misleading."

Hunsaker also argued that Stack's rulings were consistent with Rule 213 and noted that the provision directs the court to liberally construe the Rule 213 to do substantial justice between or among the parties.

"I think substantial justice was done," Hunsaker said. "It is clear that there was no violation of Supreme Court Rule 213."

Hunsaker also told Stack that the comment made by Cantrell was fact, not medical opinion and if it was not true, Marrese would have called a rebuttal witness to discredit Cantrell.

"I don't think I broke the rules," Hunsaker said. "I do not take this lightly, attorneys need to take Rule 213 seriously."

"Even if this court were to conclude that Dr. Cantrell's statement was a 213 violation, there is an abundance of evidence in the record, not objected to, which supports the jury's verdict that Dr. Cantrell complied with family practice standards of care," Hunsaker said.

Hunsaker also addressed Marrese's charge that he used leading questions.

"It would be fundamentally unfair to order a retrial where plaintiff's counsel chose not to object, waiting until after return of the verdict, to complain about the form of various questions," Hunsaker said.

"If a question was improper, it should have been objected to at trial so that defense counsel could restate or rephrase the question."

Stack also agreed that the questions were not leading and gave Marrese examples of what a leading question is.

However, Stack said he wanted to look at court transcripts before making a final decision on the matter.

Stack also said he thought Cantrell's comments were fact rather than medical opinion, which is why there was not a Rule 213 violation.

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