The plaintiffs in a 2004 wrongful death suit that was decided by a jury in April are asking for a new trial due to what they say was a judge's error. Madison County Circuit Judge Barbara Crowder told attorneys from both sides that she will consider whether her refusal to grant a mistrial after a witness violated one of her pre-trial rulings tainted the trial.

Crowder heard the motion Friday morning.

Plaintiff's attorney Jon Carlson argues that defense expert witness,
Dr. Richard Quigg, overstepped his bounds during his testimony.

Quigg, a nephrologist, testified as an expert on behalf of Highland surgeon Dr. Jose Diaz Jr. Diaz Jr. was sued by Russell Darbon as the administrator of his deceased ex-wife's estate.

Darbon's ex-wife, Virginia Gettys, died from septic shock associated with a kidney infection in January 2004.

Darbon sued Diaz on charges that he failed to diagnose the infection, performed unnecessary surgery and other claims. He asked for damages in the amount of $50,000 and costs.

In a motion in limine heard before the trial began in April, Crowder barred testimony about Gettys' possible leukemia.

Quigg, in his testimony, referenced leukemia. The plaintiff asked for a mistrial at the time which Crowder refused, citing the late timing in the case.

The jury found for Diaz Jr. and did not award damages.

Carlson argues that Quigg's testimony prejudiced the jury to the point that his client could not receive fair consideration.

Defense counsel Tim Richards agreed that Quigg had overstepped but that Crowder had properly ruled on the issue during the trial. He argued that the leukemia issue went to damages which the jury didn't consider in finding for Diaz Jr.

"Maybe that's why they never got there," Carlson retorted.

Crowder expressed her chagrin at Quigg's conduct on the witness stand without faulting Richards.

"That guy was not my favorite," Crowder said. "I was very unhappy."

However, while she said she would consider the issue, Crowder expressed her hesitancy to throw out the jury verdict.

"You don't take away what a jury decided absent some compelling reason," the judge said.

The case is Madison case number 04-L-1427.

More News