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Defense verdict in eye injury case upheld

Jessica Shumaker//May 23, 2017//

Defense verdict in eye injury case upheld

Jessica Shumaker//May 23, 2017//

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A woman’s medical malpractice suit over an eye injury will not go to trial a third time, following a ruling Tuesday in the Eastern District Court of Appeals.

The court affirmed a 2015 defense verdict for Pepose Vision Institute in a case brought by Jaynee Will.

It was the second trial over the same injury. The first trial was in 2011 and also ended in a defense verdict.

St. Louis County Circuit Judge Michael Jamison granted Will’s new trial motion after the initial trial, finding the jury verdict went against the weight of the evidence. That ruling was later affirmed by the appeals court.

At trial, Will claimed a Pepose ophthalmologist failed to notice a potentially dangerous condition during a February 2005 eye exam. Pepose Vision provides optometry and ophthalmology services at two offices in the St. Louis area.

She alleged that if she had known of the problem and had been referred to a specialist, she could have undergone a retinopexy, which is a type of laser procedure. The procedure likely would have prevented the retinal tear and detached retina that was diagnosed in Will’s right eye a month after the exam.

Will underwent a surgery to repair the detachment the same day as the diagnosis, but she experienced a complication from the surgery that resulted in the loss of her right eye in 2011.

That year, she filed the medical malpractice suit against Pepose, alleging its doctors failed to conform to the standard of care in treating her, contributing to her injury.

In her appeal of the second verdict, Will argued Pepose’s counsel misrepresented evidence in certain statements during their closing argument, which the judge erred in allowing, and also that the trial court abused its discretion in excluding evidence of witness tampering by Pepose.

In the opinion, the court disagreed that Pepose’s counsel misrepresented evidence relating to the standard of care applicable to one of the two doctors.

The issue stemmed from two competing sets of guidelines for eye examinations in evidence. The court found each party presented conflicting evidence on the issue and had an opportunity to cross-examine each expert that testified on the issue.

“Pepose’s counsel argued that its experts were more persuasive on this issue, which is the purpose of closing argument,” Judge Gary M. Gaertner Jr. wrote in the opinion.

Further, the court found no indication in the record that Pepose’s counsel misstated the law or strayed beyond the evidence during closing argument.

The court reluctantly disagreed with Will’s second point on appeal.

Will sought to introduce evidence that Dr. Jay Pepose inappropriately contacted the superior of one of her expert witnesses, Dr. Michael Sulewski, and argued it was an indirect attempt to influence his testimony.

Looking to federal precedent, the court concluded the trial court should have admitted the evidence, however, Gaertner wrote that the question the court considered was not admissibility, but whether the judge’s error materially affected the merits of the action.

“While we conclude the trial court did abuse its discretion by failing to admit this evidence; based on Missouri Supreme Court precedent, we conclude it does not require reversal under the circumstances here,” he wrote.

Leonard Cervantes of Cervantes & Associates in St. Louis represented Will. Philip L. Willman of Brown & James in St. Louis represented Pepose. Neither could immediately be reached for comment.

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