Carr claims juror lied in motion for new med mal trial

By Steve Gonzalez | Mar 13, 2007

Rex Carr Attorney Rex Carr is asking Madison County Circuit Court Judge Barbara Crowder for a new trial in a medical malpractice case he lost in January.

Rex Carr

Attorney Rex Carr is asking Madison County Circuit Court Judge Barbara Crowder for a new trial in a medical malpractice case he lost in January.

In a post-trial motion filed Feb. 28, Carr said his clients, Maria and Douglas Storm, were denied their constitutional rights to a fair and impartial jury of 12 because juror John Provence "lied and failed to answer honestly" that he was a defendant in a Madison County case.

According to Carr, Provence was a bus driver charged with running a stop sign in two personal injury suits.

"Such conduct resulted in great prejudice to plaintiff in that, among other reasons, plaintiffs were denied their statutory right to challenge juror Provence for cause," Carr's motion states.

Douglas Storm claimed Patrick Zimmermann, M.D. of Family Medicine Associates in Collinsville failed to diagnose Maria's cancer which began as a mole on her back.

In his motion, Carr also argues that the jury verdict was against the manifest weight of the evidence and that the court erred when barring the submission of certain exhibits, medical articles admitted into evidence, from going to the jury.

Carr claims Crowder erred when she denied the jury's request to have exhibits and articles given to them for review during deliberations.

He argues that Crowder should have let Douglas Storm testify that a picture of a cutaneous melanoma admitted into evidence resembled or was similar to the pigmented lesion on Maria's back.

Carr had asked the jury, which deliberated nearly four hours, to award $10.9 million in damages to the family.

Storm claimed Zimmermann negligently and carelessly failed to properly evaluate Maria's recurrent skin lesion, failed to perform a biopsy, failed to refer her for an appropriate consultation for evaluation and failed to diagnose a malignant melanoma.

Storm also claimed his wife's melanoma, which was diagnosed in early 2003, went undiagnosed and untreated and subsequently metastasized causing his wife to lose her chance of survival and recovery.

Maria Storm died on Dec. 14, 2005, leaving behind her husband and two sons who claims they have suffered a pecuniary loss, including the loss of love, support, companionship, affection and society.

According to Carr's motion, Crowder asked jurors if any of them have a pending case in Madison County during voir dire.

"No juror responded to this question including juror Provence," Carr writes.

Carr also said that Provence remained quiet when jurors were asked if any family members or close friends had cases pending in Madison County.

"Notwithstanding the fact that the court provided juror Provence with not one, not two, not three, not four, not five, but six separate opportunities to disclose that he was a defendant in two pending personal injury claims, and despite the fact that the other potential jurors were disclosing lawsuits involving friends, in-laws and litigation from the seventies, juror Provence continually remained silent and failed to raise his hand and honestly answer that he was a defendant in two pending lawsuits," Carr wrote.

"Juror Provence's conduct is inexcusable," Carr adds.

Carr said his failure to disclose the lawsuits "reeks of blatant dishonesty."

"The plaintiffs were seriously prejudiced by the dishonesty of this juror," Carr wrote.

Carr said that the Illinois Supreme Court has held that a new trial is required where the movant established that a juror answered falsely on voir dire and prejudice resulted from it.

A second defendant, James Dalla-Riva, M.D., was voluntarily dismissed by Carr on Nov. 30.

Dalla-Riva was accused of failing to properly evaluate Maria's complaints.

According to court documents, Douglas Storm accused Dalla-Riva of negligently diagnosing his wife's condition as a left axilla folliculitis and failed to refer her to a specialist for treatment.

Ted Dennis of Belleville represents Zimmermann.

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