A plaintiff who has lost two medical malpractice trials in a case against a Collinsville physician and practice wants another chance, this time arguing the defense intentionally violated a motion in limine during the last trial in July.
The first verdict in the Madison County case against defendant Dr. Patrick Zimmermann was thrown out after it came to light that a juror lied during the first trial's jury selection in 2007.
Plaintiff Douglas Storm is suing Zimmermann and his practice for allegedly failing to diagnose and test in 1999 what the plaintiff claims was a cancerous mole on his wife's back.
His wife, Maria Storm, was later diagnosed with advanced melanoma and died in 2005.
Juries found for Zimmermann in both trials.
Circuit Judge Barbara Crowder is set to hear the post-trial motion Sept. 27.
The motion was filed Aug. 27.
The defendant's response has not yet been filed.
Maria Storm first had the mole in question removed in 1998 by a Maryville doctor.
The mole re-grew and she sought treatment from Zimmermann a year later.
Zimmermann removed the mole.
Although the mole never re-grew, Maria Storm was later found to have advanced skin cancer that had spread to other parts of her body. She and her husband filed suit in 2003.
After her death, Douglas Storm continued the case as the administrator of her estate.
The suit seeks damages of at least $200,000 and costs.
The suit was originally tried in 2007. After a jury found for Zimmermann, it came to light that one of its members lied about his role in two pending personal injury suits also filed in Madison County.
The plaintiff asked for a new trial and the verdict was thrown out.
The defense unsuccessfully appealed the decision.
The appellate court remanded the case to Edwardsville for a new trial.
After a two week-long trial in July, a jury again found for Zimmermann.
In the motion for a new trial, plaintiff's attorney Rex Carr argues his opponent, Ted Dennis, intentionally violated a motion in limine that forbade the defendants from telling the jury Zimmermann had never missed finding a melanoma.
The plaintiff claims Dennis violated the order when he asked his client if he had ever received notice that he had not found a
"This violation was deliberate and any objection made at the time would have only served to further emphasize the forbidden prejudicial information," the motion reads.
The motion claims that the mention biased the jury in Zimmermann's favor.
In the memorandum in support of the filing, the plaintiff argues that the weight of the evidence supported the case against the defendant.
It argues that Zimmermann's only defense was that he used his clinical judgment and that it does not withstand the evidence.
"There is no law and there is no evidence and there is no medical standard establishing that exercise of clinical judgment may excuse a deviation from the standard of care," the memorandum states. "If, indeed, that were the law, then a doctor amputating the wrong leg could use his 'clinical judgment' as a defense."
The memorandum also takes further issue with Dennis's alleged violation of the motion in limine.
"Mr. Dennis knew in advance that he was going to ask the question of Dr. Zimmermann," the memorandum argues. "This can only be considered a deliberate defiance of this Court's order. He did it to inject this highly prejudicial information to the jury indicating no respect for the court or its power, in return for a jury verdict based upon sympathy for a doctor 'who has never missed a melanoma in his 28 years of practice' and is now being sued, unjustly."
Rex Carr and Troy Walton represent Douglas Storm.
Ted Dennis represents Zimmermann.
Michael Murphy represents the practice
Maryville gynecologist Dr. James Dalla Riva had also been a party to the suit at one time. He was dropped from the case prior to its second trial.
Madison County Circuit Judge Barbara Crowder presides.
Crowder oversaw the suit's first trial in 2007 as well.
The case is Madison case number 03-L-999.