Jury returns $13 million verdict in Weinberger malpractice case
By Mark Taylor Post-Tribune correspondent March 24, 2011 9:49PM
Updated: August 4, 2011 4:20PM
A Hammond jury of four men and four women Thursday awarded the estate of the late Phyllis Barnes a $3 million compensatory damages verdict against Dr. Mark Weinberger and added another $10 million in punitive damages against the former Merrillville ear, nose and throat specialist.
The jury did not find Valparaiso physician assistant Joe Clinkenbeard liable for the wrongful death of Phyllis Barnes and cleared him.
Barnes’ daughter, Shawn Barnes of Valparaiso, smiled when the verdict was read by Lake Superior Court Judge Diane Kavadias Schneider shortly after 7:30 p.m.
“I am not disappointed,” said Barnes, 25.
Her aunt, Peggy Hood of Valparaiso, called the verdict “very fair. I am very happy with it.”
Their attorney, Kenneth Allen, said the jury verdict “will be enough to send Weinberger a message that he’s not going to reap any profits from his ill-gotten gains or future deals. This verdict will follow him like O.J.’s (former NFL star O.J. Simpson) did and make sure that one way or the other, he pays for his wrongs.”
Weinberger, who remains incarcerated at Metropolitan Correctional Center in Chicago, did not attend his civil trial. He faces more than 350 other malpractice lawsuits, including one beginning in May. He also faces an April 27 sentencing in U.S. District Court in Hammond, where he pleaded guilty to 22 counts of health-care fraud.
His Valparaiso attorney, James Hough, declined comment, as did Clinkenberger.
But the physician assistant’s South Bend attorney, Georgianne Walker, uttered a one-word response. “Justice,” she whispered.
A full house of well-dressed lawyers, insurers, family members and reporters crowded Kavadias Schneider’s courtroom for closing arguments in the trial that began March 14 with jury selection. Weinberger and Clinkenbeard were accused of failing to diagnose the cancer that claimed Phyllis Barnes’ life at age 50 in 2004. Weinberger was separately accused of performing unnecessary sinus surgery on Phyllis Barnes, causing her pain and suffering.
All of the lawyers and their team wore dark suits befitting the somber mood in the courtroom.
Before closing arguments, attorney Allen called back witness Dr. Dennis Han, an otolaryngologist who treated Phyllis Barnes after Weinberger’s allegedly unnecessary surgery. Han diagnosed her cancer immediately and performed numerous surgeries to remove the tumor and repair her vocal chords. Han repeated his earlier contention that Weinberger should have diagnosed Barnes’ cancer and that the surgery he performed was unnecessary and caused her harm, irreversibly destroying bone and tissue.
Allen claimed the best evidence in his case came from opposing attorneys’ expert witnesses. He also reminded jurors of the medical review panel’s finding of malpractice against the two defendants.
Plaintiffs replayed portions of Weinberger’s taped deposition, in which he answered every question by reciting his Fifth Amendment privilege not to answer.
Allen said Weinberger is guilty of hurting Barnes needlessly with an unnecessary surgery.
“He needs to be punished,” Allen urged jurors. “Send a message to him and anybody that would follow in his footsteps.”
Allen began his closing arguments by apologizing to jurors for emotional outbursts. “I am who I am,” he said.
Not to be outdone, in her closing arguments, Clinkenbeard attorney Walker argued that she was passionate in her client’s defense.
Walker attempted to separate the allegations against her client from those tarring his more infamous co-defendant. She said the plaintiffs failed to meet their burden of proof in their claims against Clinkenbeard.
“You have to ask yourselves why they didn’t call a cancer expert in a cancer case,” she told jurors. Finally, she said the cancer risk symptoms Clinkenbeard allegedly missed didn’t begin occurring until October, months after he last treated Barnes.
“He doesn’t belong here,” Walker said. “A verdict against Joe Clinkenbeard would be unjust or unfair.”
Weinberger attorney Hough cautioned jurors not to be persuaded by sympathy or emotion, but to look at the evidence. Ultimately, Hough said, the case is about Phyllis Barnes’ care, not Weinberger, his lifestyle, personal issues or treatment of other patients. The jury disagreed.
Because Indiana’s malpractice law allows a maximum of $1.25 million per alleged incident of malpractice, Weinberger’s insurers are likely to file a motion to reduce the $3 million jury verdict.
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