Dr. John Petrovich removed a medical malpractice case filed against him to federal court for the second time alleging the plaintiff filed a fraudulent affidavit to get the case remanded the first time it was removed.

Donald Canterbery filed suit against Petrovich in Madison County Circuit Court on Sept. 12, 2006, alleging Petrovich failed to perform an adequate physical exam prior to the surgery, failed to order a review or MRI or CT scan prior to surgery, failed to order a biopsy of the soft tissue tumor prior to the removal of the tumor, failed to diagnose the tumor prior to removal and failed to obtain consent to perform an excision on the left groin mass.

Petrovich pleaded guilty in 2005 to health care fraud and was sentenced to five years probation and fined $5,100. He was also ordered to pay $5,000 in restitution to the state of Illinois.

Petrovich performed a biopsy on a mass in Canterbery's left groin area at Gateway Medical Center on Sept. 27, 2004.

Canterbery claims Petrovich lacerated or otherwise injured nerves in his groin, failed to diagnose the nerve injury, and operated on him under the influence of drugs and alcohol causing him to sustain nerve damage which caused him to suffer great pain, disability and anxiety, erectile dysfunction, the inability to flex his lower extremity and the wasting of muscles and tissues in his left lower extremity.

On Oct. 13, 2006, Petrovich removed the case to federal court arguing there is a diversity in citizenship and also because the amount Canterbery seeks is in excess of $75,000.

Petrovich claims he was a resident of Missouri and Canterbery an Illinois resident. But Canterbery countered in an affidavit that he signed a "long term" lease lease in Missouri and planned to reside there "indefinitely" after the case was first removed.

In February, U.S. District Judge Michael Reagan remanded the case back to Madison County.

However, on Aug. 3, two damage witnesses gave their depositions in the case that refuted Canterbery's assertion that he has established a permanent residence in Missouri.

Petrovich's attorney, Justin Relihan of St. Louis wrote, "It is clear that Plaintiff committed fraud in his affidavit, answers to interrogatories and deposition in order to avoid this Court's jurisdiction."

"This case was remanded back to state court due to Plaintiff's fraud," Relihan adds. "Since there actually did exist complete diversity in citizenship when Petrovich originally removed the case, this Court should reassert jurisdiction over the case."

According to Petrovich, Canterbery stated in his affidavit that he he resided at 817 Randolph in Elsberry, Mo., and established that as his domicile and planned to remain domiciled in Missouri indefinitely.

Petrovich then issued diversity jurisdiction interrogatories to Canterbery 27 days later and Canterbery wrote he lived at 3152 Boones Lick Road in St. Charles, Mo., and his landlord was Sharon Kimball and that his former landlord at the Elsberry address was Lee Eckhoff and she was paid $300 a month in rent.

Canterbery's landlord at the Elsberry address, Lee Eckhoff, said in her deposition that Canterbery only lived there for a short time and that he never paid rent and never gave her any money, not even for dog food.

In response to a question asking if she ever received any money for rent, Eckhoff answered, "No. No money for rent, no money. He never paid any money for dog food for his little dog, he never bought groceries, he never--no money anywhere."

She also said he never offered to pay for utilities and that she never entered into a verbal agreement that allowed Canterbery to reside in her home.

Eckhoff's testimony refutes Canterbery's who stated in his deposition that he entered into a one year oral lease to reside at the Elsberry address.

In Canterbery's deposition he states that he paid Eckhoff $300 a month rent, paid a $500 deposit, and that she refunded him the deposit when he moved.

Eckhoff also testified that Canterbery talked about moving to Granite City, buying a Corvette and building a big house once the case settled and he got his money.

Petrovich also claims that on July 16, Canterbery answered interrogatories from co-defendant Gateway Regional Hospital in which he tells them he lives in a trailer in Granite City.

"In July 2007, less than ten months removed from declaring his intent to indefinitely remain in Missouri at two different addresses, Plaintiff was residing in Granite City, Illinois," Relihan writes.

"Plaintiff never had the requisite intent to establish his domicile in Missouri, and is for the purposes of diversity jurisdiction, an Illinois citizen," Relihan adds.

He also argues that citizenship, not residency counts for the purpose of jurisdiction.

"Through fraud, plaintiff was able to defeat Petrovich's notice of removal," Relihan writes.

"Such conduct should not be condoned by this Court."

Gateway consented to the removal. The case has been assigned back to Reagan.

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