Stack denies plaintiff's second 'bite of the apple'

By Steve Gonzalez | Jan 5, 2007

Richard Hunsaker

Mary Jo Kuca

Madison County Circuit Judge Daniel Stack denied a family's request for a new medical malpractice trial on Jan. 2.

In his six-page order Stack said even though he feels "great sympathy" for the family and has known some of the members for many years nothing that happened during the trial reaches a level that would give the estate a "second bite of the apple."

The estate of William Hoppe II filed suit against Dolores Cantrell, M.D. 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, 2006 after a nine-day trial, a Madison County jury found that Cantrell met the standard of care in treating Hoppe.

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 of Heyl Royster.

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 claied Stack "uniformly overruled" objections.

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

Marrese claimed 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."

Stack took the matter under advisement but ruled from the bench that Hunsaker did not violate Rule 213.

Stack said Marrese submitted court transcripts of the trial with 54 tab markers at every leading question.

"It has required some very tedious review by the court; and, a review of applicable law was also made although very little was cited," Stack wrote.

Stack noted that the definition of a leading question was, "One which instructs witnesses to answer or puts into his mouth words to be echoed back."

"Many questions tabbed by plaintiff's counsel are incomprehensible to this court to detect any suggestion to the answer," Stack wrote.

Stack said the first question Marrese tabbed was, "What is your profession, Dr. Barzilai?"

Stack wrote, "Is plaintiff's counsel suggesting that the use of the title Dr. suggests the answer?"

He said that he would not address each and every question tabbed, but he did find a large percentage of leading questions.

"They were not the subject of objection because they were plaintiff's counsel's own questions on cross examination,' Stack wrote.

"Whether or not a judge agrees with all of the findings of a jury, and whether or not that judge feels sympathy for any litigant, the standard for granting a motion for a new trial requires a finding that the moving party did not receive a fair trial," Stack wrote.

"That burden has not been met."

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