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Jury finds evidence still weighs the same

A second trial four years after the first over the loss of a woman’s eye ended with the same result: a defense verdict.

After more than two hours’ deliberation, St. Louis County jurors decided 10-2 on Tuesday evening in favor of Pepose Vision Institute in a lawsuit brought by plaintiffs Jaynee and Scott Will. The couple had claimed an ophthalmologist failed to notice a potentially dangerous condition during a February 2005 eye exam.

The plaintiffs asserted that had they known of the problem — and been referred to a specialist — Jaynee Will could have undergone a retinopexy, 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 the month after the exam, said plaintiffs’ attorney Leonard Cervantes.

Defense attorney Philip Willman argued the exam was routine and nothing would have alerted the eye doctor that the woman needed referral to a specialist. The retinal tear, which Willman called a “sudden catastrophic event,” wasn’t in the area of the not uncommon condition, called lattice degeneration, he said.

“It was an unfortunate complication that no one could have predicted or prevented,” Willman said on the last day of the trial, which started Sept. 15.

Willman, of Brown & James, also argued that even if a specialist had been involved, it may not have mattered if the procedure wasn’t recommended or didn’t work.

Scott Will sat with his arm around Jaynee’s shoulders during closing arguments, sometimes stroking her arm. They declined to comment after the verdict was announced.

A 2011 trial over the same incident also ended with a defense verdict, but St. Louis County Circuit Judge Michael Jamison granted Cervantes’ new trial motion, finding the jury’s decision went against the weight of the evidence. An appeals court affirmed the decision.

At both trials, Cervantes, of Cervantes & Associates, had asked for $2.9 million for the Wills. Jaynee Will has worked part-time as a nurse and without the injury was likely to have gone back to full time work when the couple’s children grew to be independent enough, he said in Tuesday’s closing arguments.

In the second trial, Cervantes tweaked the case to emphasize an examination technique called scleral depression, which brings the whole retina into view. Cervantes said it should have been used as part of a complete eye exam and if it had, the eye doctor could have detected the lattice degeneration.

Cervantes said during closings that he had gotten into a shouting match during the trial with a defense expert who likened a scleral depressor to an instrument of torture. The treating surgeon testified in a video deposition the technique only hurt if the examiner accidentally pinched the skin of an eyelid.

Professional guidelines only call for retina experts to use scleral depression, Willman said.

The treating surgeon’s video deposition explaining the technique was the only deposition used for the second trial that wasn’t used for the first, Willman said.

Other video depositions, some of which dated back five years, illustrated the age of the case.

More of the case’s history may repeat itself.

“We’ll file a motion for a new trial and see what happens,” Cervantes said after the verdict.

Willman said he hoped there wasn’t another trial.

“Twice is enough.”

Medical malpractice

Venue: St. Louis County Circuit Court

Case number/Date: 10SL-CC03956-01/Sept. 22, 2015

Judge: Michael Jamison

Caption: Jaynee and Scott Will v. Pepose Vision Institute

Plaintiffs’ experts: Dr. Michael Sulewski, Philadelphia, Pennsylvania (ophthalmologist and refractive surgeon); Dr. Mark Harooni, New York (ophthalmologist and retina specialist); Dr. Sunir Garg, Philadelphia (retinal specialist)

Defendants’ experts: David Hardten, Excelsior, Minnesota (ophthalmologist, refractive surgeon); Dr. William Smiddy, Miami (ophthalmologist/retinal specialist); Dr. Charles Wilkinson, Baltimore (ophthalmologist/retinal specialist)

Plaintiffs’ attorneys: Leonard Cervantes and Jennifer Suttmoeller, Cervantes & Associates, St. Louis

Defendants’ attorneys: Philip Willman and Angela Pozzo, Brown & James, St. Louis

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