A case management conference is set in what could be the second time around for a 2004 medical malpractice suit against a Highland surgeon.

Defendant Dr. Jose Diaz Jr. won a 2009 trial in the suit filed by plaintiff Russell Darbon as executor of the estate of his ex-wife Virginia Gettys.

Darbon claims that Diaz Jr. negligently failed to diagnose the kidney infection that killed Gettys in January 2004.

The case management conference is set for 9 a.m. on Jan. 26.

Darbon also claims Diaz Jr. failed to conduct a proper exam, to properly read test results and to transfer Gettys to a hospital with a unit designed to treat infectious diseases.

Diaz Jr. denied the claims.

The case was tried two years ago.

A jury found for Diaz Jr.

However, Madison County Circuit Judge Barbara Crowder ordered a new trial after a defense expert she termed "not my favorite witness" violated a motion in limine during his testimony when he mentioned "leukemia."

The plaintiff moved for a new trial based on that violation, arguing the utterance unfairly swayed the jury.

The defense appealed Crowder's decision.

Diaz Jr. filed a letter with the court Dec. 27 asking that the case
management conference be set.

Jon Carlson represents Darbon.

Timothy Richards represents Diaz Jr.

Madison County Circuit Judge William Mudge currently oversees the case.

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

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