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Talk about adding insult to injury: Truck kills a woman; no recovery for family.

Sheri Williams was killed when a large object was thrown through her windshield and struck her head.  Marc Sevigny, a J.R. Phillips Trucking, Ltd, employee, was hauling a tractor-trailer filled with slag in the opposite direction at the time of the incident. Williams' family contended that she was killed when a large fragment of slag became lodged in the semi-tractor's tires and dislodged as the truck accelerated away from the steel mill where it had just been loaded.  After many procedural twists, the steel mill was dismissed from the case, and a jury ultimately concluded that the truck driver and his employer were not negligent.  The family appealed, arguing that the verdict was "against the great weight of the evidence" and that the lower court had incorrectly allowed the trucking company's expert to substantially and dramatically change his defense theory during the trial.

The Court of Appeals ultimately upheld the jury verdict.  Even though the driver conducted only a "circle check" of his truck while it was on the scales of the mill (and conceded that he could not see areas between the tires that were obscured by the mud flaps), and even though he acknowledged that there was slag "all over" the premises between the scales and the exit, the Court concluded that a jury could reasonably decide that he had met the standard of reasonable care.

Further, the Court concluded that the jury might disagree with Plaintiff about the cause of the death, even though State Police and private accident reconstruction experts had determined that a 6" by 8" piece of slag had penetrated her windshield, since the actual object was never located.  Finally, the Court rejected the family's complaint that the defendant's reconstruction expert had improperly changed his testimony on the eve of trial, thus engaging in "trial by ambush." 

All parties are obligated to comply with discovery rules allowing the adversary to investigate the evidence and opinion testimony they expect to present. In this case, the Defendant's expert, Hrcay, testified five months before trial that there were three equally probable explanations for the death:  an object stuck in the defendant's tires, an object in the road that the truck hit, or an object in Williams' lane struck by a vehicle that preceded her. On the Friday before trial, Hrcay concluded that the only reasonable explanation was the truck striking an object in the road, and he based his change in opinion on the testimony adduced during the trial (including expert opinion testimony offered by Defendant's pathologist).  The Court concluded that this error would not justify a new trial because Hrcay's opinions--although manipulated at the last minute--had never supported Plaintiff's case. 

This very surprising final ruling simply confirms the improbability of persuading an appellate court to overturn the result of a jury trial.  The appellate record in Michigan is replete with decisions reinforcing a party's duty to fully, fairly, and timely disclose the expert opinions it anticipates offering at trial.  The eleventh-hour maneuvering in this action certainly changed both the case the plaintiff family anticipated presenting (after the fact) and the credibility of the defense theory.  Nevertheless, it is clear that years of legal wrangling and maneuvering had exhausted the Courts' patience for the Williams' circumstantial case, and not enough judicial fortitude remained to send the case back for a second trial.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262