By Ann Maher | Jan 19, 2018


The Fifth District Appellate Court has affirmed St. Clair County Circuit Judge Vincent Lopinot involving a 2016 medical malpractice trial that ended with a defense verdict.

According to a Rule 23 decision handed down on Jan. 18, a three judge panel found that Lopinot did not abuse discretion in declining to allow jurors to hear a "missing evidence" jury instruction.

Justices David Overstreet, John Barberis and James Moore also concluded that the jury verdict was not against the manifest weight of the evidence as argued by plaintiff Robert Thompson.

Thompson sued orthopedic surgeon Donald Serot of Belleville in 2006, claiming he improperly positioned a tibial component and improperly performed a tibial cut during his knee replacement surgery in April 2005.

After jurors found in favor of Serot in August 2016, Thompson sought a new trial claiming he should have been allowed to inform jurors that an adverse inference should be drawn from an operative report which did not fully describe the surgery.

Thompson had characterized omitted information in the report as missing evidence, but Lopinot found that evidence as to what occurred was clear, and therefore, an additional explanation in the operative note would constitute cumulative evidence, the ruling states.

Lopinot also found the case did not involve failure to produce evidence, but involved the failure to create evidence.

"Here, the circuit court did not abuse its discretion in refusing to issue the missing evidence instruction ... to the jury because the defendant did not fail to submit an existing operative report containing the initial prosthesis implantation and explantation," Overstreet wrote. "Instead, the defendant failed to create such a report. Thus, there was a reasonable excuse for the defendant’s failure to submit such evidence, i.e., it did not exist."

He wrote that Thompson did not suffer prejudice as a result of Lopinot's refusal to offer the instruction.

"As noted by the defendant, the plaintiff introduced extensive evidence and argument regarding the defendant’s omission of the first two procedures from his operative report," he wrote.

On appeal Thompson further claimed that the jury verdict was against the manifest weight of evidence in part because Serot "failed to submit competent evidence to contradict" his expert who testified that Serot deviated from the applicable standard of care.  

"This case involved a classic battle of the experts," Overstreet wrote. "Witnesses qualified in their fields stated their opinions and provided reasons for those opinions. The jury listened to the conflicting evidence and used its best judgment to determine where the truth could be found. The jury found in favor of the defendant and against the plaintiff, and this court should not usurp the jury’s function to substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly predominate either way."

Thompson was represented by John Papa of Callis, Papa & Szewezyk in Granite City.

Serot was represented by Ted Dennis of Freeark, Harvey & Mendillo in Belleville.

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Callis Papa & Szewczyk Freeark, Harvey and Mendillo

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