Madison County Circuit Judge David Dugan denied a second request for a new trial in a medical malpractice suit alleging a woman died from a blood clot caused by a sprained ankle.
The case first went to trial in April 2013 with former Madison County Circuit Judge Andreas Matoesian presiding. The case ended in a defense verdict before a new trial was ordered by the Fifth District Appellate Court.
The case went to trial a second time in Dugan’s courtroom and ended in another defense verdict on June 25 when jurors entered a verdict in favor of Orthopedic & Sports Medicine Clinic PC and Dr. Bruce T. Vest Jr. The plaintiffs had asked jurors to award each of Tammy Greco’s three children $300,000 and her husband $500,000, for a total of $1.4 million.
Plaintiffs James Greco, as special administrator of his wife Tamara Greco, and as legal guardian and next friend of Taylor Greco, Heather McKaig and Nicholas McKaig filed a motion for a new trial on July 24.
“While a new trial is an extreme remedy, it is merited where, as here, error undermines the very foundations of a fair trial,” the motion stated.
Dugan denied the plaintiffs’ request for another new trial on Dec. 19.
In his motion for a new trial, Greco argues that the defendants allowed Carrie Jun, who is Tammy Greco’s sister, to testify about barred topics. Jun had testified in the first trial that she had been diagnosed with a hereditary blood clotting disorder, suggesting the decedent could have also been affected.
The Fifth District previously granted a new trial relying partially on Jun’s testimony.
“In this second trial, defendant dove back into this poison well that was Mrs. Jun’s testimony,” the motion stated.
During the second trial, the defendant called Jun as a defense witness. However, the court ordered that she could not testify regarding any possible blood clotting disorder.
The plaintiff argues that the defense asked Jun about her reaction after learning of Tammy Greco’s death.
“Mrs. Jun pounced on defense counsel’s invitation to inject irrelevant and prejudicial testimony,” the motion stated.
Jun allegedly testified that she asked the doctor if Tammy Greco had died from a blood clot. The testimony was “abruptly stopped” and jurors were cleared from the room.
“It invited the jury to speculate that Mrs. Jun was aware that Tamara Greco had a medical condition that pre-disposed her to blood clots,” the motion stated.
Jun was then permitted to re-take the witness stand.
“There was no admonition for the actions by the witness or the defense,” the motion stated. “The prejudice caused by defense counsel and the witness acting against Court orders was left in place.”
The plaintiff called the line of questioning “frankly unusual,” arguing that it was used to inject prejudice.
In the defendants’ suggestions in opposition to a new trial filed Dec. 18, they argued and Jun did not violate court order and did not testify about any blood clotting disorder. They add that she provided the same testimony about her reaction to her sister’s death at the first trial, which was not subject of the appeal.
“Defense counsel did not purposefully solicit any testimony about blood clots or blood clotting disorders,” the suggestions stated. “Plaintiffs’ contention that defense counsel invited the testimony or orchestrated it is completely unsubstantiated.”
The defendants argued that Jun was held in contempt following her mention of blood clotting, and the plaintiffs waived any claim to error by failing to request a new trial at the time.
“Because the testimony was stopped and no further inquiry was allowed, the Court clearly (and rightly) determined that there was no prejudicial error,” the suggestions stated.
In his motion for a new trial, Greco also argued that reference to Dr. Graboff’s career earnings for forensic review and testimony was prohibited, but the defense projected “professional witness” and “$10 million” on a screen.
“The prohibited information was thrust in front of the jury in print larger than any newspaper headline,” the motion stated.
“It irreversibly and irretrievably harmed the fairness of the trial,” it continued. “This was a bell that could not be un-rung.”
In their suggestions in opposition, the defendants argued that probing Graboff’s bias, including his financial interest in the case, was appropriate.
They add that the court actually overruled the plaintiffs’ request to prohibit reference to Graboff’s career earnings.
The defendants argued that the plaintiffs opened the door to Graboff’s earnings when they asked him about it during his evidence deposition.
“It is quite unfathomable to envision a world where a party solicits testimony in an evidentiary deposition, without objection, and then later objects to the introduction of that evidence on the grounds that it had preserved objection to its own evidence,” the suggestions stated. “Plaintiffs provided no authority for the proposition that preserving objections in an evidentiary deposition includes objections to one’s own evidence.”
According to the complaint, Tamara, or “Tammy,” Greco, 36, sprained her ankle while bowling on April 29, 2004. She went to the emergency room that evening and was advised to elevate her leg, wear a brace, use crutches, apply an ice pack and see an orthopedic surgeon.
Tammy Greco visited Orthopedic & Sports Medicine Clinic PC in Alton the next day. She was diagnosed by physician’s assistant Douglas Spafford with a sprained left ankle and was placed in an Equalizer brace. She was instructed to return on May 14, 2004, for a follow up.
However, Tammy Greco was advised to come in on May 5, 2004, after she called complaining of a burning and numb feeling in her toes on her left foot. Vest allegedly performed a Homan’s sign test by pushing her foot back to determine if there was a presence of a deep vein thrombosis, or DVT. The test was negative.
Vest reported that the tingling in her toes was thought to be related to additional soft tissue swelling due to her obesity and the brace being too tight. The brace was loosened and Tammy Greco was told to ambulate as much as tolerated on her left leg. Vest told her to return May 19, 2004 for a follow up.
However, Tammy Greco died two days later when she was found unresponsive while in her vehicle in her employer’s parking lot. She was transported to St. Anthony’s Health Center and died less than two hours later. According to her death certificate, she suffered from a bilateral pulmonary thromboemboli due to immobility of her left foot.
The plaintiffs are represented by David Horan and Gregory Fenlon of St. Louis.
The defendants are represented by Philip Willman and Justin Hardin of Brown & James in St. Louis and Don Weber of Craney Law Group LLC in Edwardsville.
Madison County Circuit Court case number 11-L-140