By Chris Brown
Missouri Lawyers Weekly
1/03/2000

The relatives of a family killed in an accident with a drunk driver have won a $23.4 million verdict against the driver in Jackson County Circuit Court. Eyewitnesses estimated that the defendant was traveling at 100 mph just before he crossed the grassy median strip, went airborne and struck the car of the husband and wife and their 4-month-old daughter. The defendant’s blood alcohol level later measured .16.

The defendant testified in deposition that he had not been speeding and was not impaired. He did not present evidence at trial, but on cross-examination of witnesses, raised the possibility that a phantom vehicle was involved in the accident.

The jury returned a verdict of $9.9 million in compensatory damages and $13.5 million in punitive damages.

The civil trial came to a conclusion a month after a criminal trial in which the defendant was found guilty of involuntary manslaughter and assault. The jury in the criminal trial recommended a sentence of 23 years, although no sentence had been imposed as of the civil trial.

Gary C. Robb of Kansas City, who represented the plaintiffs along with Anita Porte Robb, said that he hoped the verdict would send a message that drunk drivers who kill will have to pay for the rest of their lives.

“Nothing else we have tried seems to have worked,” said Robb. “But the message of this verdict is, even if you get off with a suspended sentence, you will be ruined financially.”

“This could be an important wake-up call.”

Both Robb and John G. Schultz of Kansas City, the defendant’s attorney, declined to discuss the collectibility of the verdict, citing a confidentiality agreement.

The case is Henderson, et al. v. Fields. A full verdict report appears on Page 5.

Christmas Day

On Dec. 25, 1998, Cecil and Tracy Stowers and their 4-month-old daughter Sydney were traveling home from a family Christmas celebration. They were southbound on Interstate 435 in Kansas City at about 10:00 p.m.

At the same time, Anthony Fields was northbound on I-435. Near the exit at 83rd St., Fields crossed the grassy median strip, went airborne and struck the Stowers’ car, killing all three occupants. Another car was also involved in the accident, and two of its occupants received minor injuries.

Fields was also slightly injured in the crash. He attempted to flee the scene but was apprehended by a Jackson County detention officer. Fields’ BAC was later measured at .16, .06 over the legal limit.

He was charged and later convicted of involuntary manslaughter and assault in the accident.

Vernon and Laverne Robinson, the parents of Tracy Stowers, and Idora Henderson, the mother of Cecil Stowers, filed a wrongful death suit against Fields.

Liability

Although the defendant declined to put on evidence, Robb noted that the liability issues in the case were contested both in the defendant’s deposition and on cross examination.

“The defendant testified in deposition that he was not speeding, that he was going between 70 mph and 72 mph,” said Robb. “And through his lawyers, he criticized the method used by the police department investigator to determine his speed.”

Robb answered this challenge with testimony from an accident reconstruction expert who used skid marks to estimate Fields’ speed at a minimum of 85 mph just before the accident.

Robb also used the testimony of an eyewitness who said Fields passed him at more than 100 mph and was weaving in and out of traffic before he crossed the median and went airborne.

“As most attorneys know who’ve handled these kinds of cases, the testimony of an eyewitness as to rates of speed is admissible if the witness can be shown to be experienced in estimating speed,” said Robb. “And this witness was a very experienced driver and very reliable.”

The defendant also denied in deposition that he was impaired, a claim his attorney attempted to support by calling into question the validity of the BAC measurement. “The defendant admitted he had been drinking, but denied that he was impaired,” said Robb. “And his attorney challenged the BAC figure by arguing that the blood was not properly stored and the machine not properly calibrated.”

Robb’s blood alcohol analysis expert testified both on the defendant’s BAC figure and the resulting state of impairment. “Our expert found that the defendant was more than 50 percent over the legal limit,” said Robb. “But he also described how such a blood alcohol level would affect his ability to drive a car.”

According to Robb, the expert focused on the effect of alcohol on a driver’s reaction time. “Our expert concluded that he had to have drunk between 12 and 13 ounces of 80-proof cognac in the two and one-half hours before the accident — 12 to 13 cognacs and Coke,” said Robb.

“He concluded that the defendant’s BAC level rendered him totally incapable of operating a motor vehicle in a safe manner.”

“The defendant also told the police that he had swerved to avoid another vehicle just before the accident,” said Robb, who noted that the eyewitnesses reported seeing no other vehicle.

Although the evidence in the case on liability was “overwhelming,” according to Robb, he explained that there were a number of obstacles to a large jury award.

The first was the fact that the accident wiped out an entire family, with the result that there were no surviving financial dependents.

“What made this case unique was that no financial dependent survived as part of the plaintiff class,” said Robb. “If there had been another child, this would have been a typical case in the determination of economic loss.”

“Instead, we had to use our economic expert to lay a careful foundation for our economic loss claim.”

“The basis for that claim,” said Robb, “was the argument that the future earnings of the decedents were potentially available to the plaintiffs under a variety of scenarios.”

FastTrack

Robb noted that Cecil and Tracy were both employed by Hallmark and were both considered on a “fast track.” His expert calculated Cecil’s lost earnings a $1.35 million and Tracy’s at $1.35 million.

For Sidney, the expert performed two calculations, one assuming that she would go to college, the other, that she would not. Under the first assumption, her lost earnings were calculated to be $584,708; under the second, $348,522.

Robb left it up to the jury to decide which figure to accept. “We feel it is important to defer to the jury on any issue that is not firmly based in the record,” he said. “Who knows what the future would have brought this young girl?”

“We didn’t want to cram a conclusion down the jury’s throats.”

Robb said he took the same approach of deferring to the jury on the question of how much, if any, of these economic resources would have been available to the plaintiffs. “On the question of the total amount, we made a request but left it to the jury,” he said.

Robb also demonstrated his strategy of deference to the jury by inviting the jurors to limit the economic loss in another way — by considering the life expectancy of the plaintiffs.

“The youngest of the three plaintiffs was 56 years old, with a life expectancy of 23 years,” said Robb. “Hers was the longest life expectancy of the three.”

“So we told the jury, If you like, you may cut off the economic loss at the end of the life expectancy of the longest surviving plaintiff,” he said. “And the result of that is to obliterate the contribution of Sidney, and to pretty much cut in half what would have come from the parents.”

Economic Realities

“But I think it’s important to take the bull by the horns and acknowledge economic realities in these cases,” he said.

But Robb had something else in mind besides just acknowledging economic realities. He was also laying a trap for the defense.

“The defense took up our argument and said that the economic damages should go no higher than the life expectancy of the youngest survivor would allow,” said Robb. “But this then allowed us to come back and ask the question, ‘Why should the defendant get a discount because he wiped out the whole nuclear family?'” said Robb.

Although Robb laid a careful foundation for the economic damages claims, he insisted that the case was not really about economic damages.

“This case was about the destruction of a family,” said Robb. “It resulted in all kinds of loss — of consortium, of companionship, of counsel. And economic damages are small compared to these kinds of losses.”

Robb pointed out that a lost wages calculation is a way of establishing the value of an employee in the marketplace. But he argued to the jury — with the help of his economic expert — that a person’s value to his family far outweighs his value to his employer.

“It is important to frame these arguments properly,” he said. “We were working towards the proposition that a person is worth more to his surviving family than to his employer, and offered that to the jury’s consideration when trying to establish the family’s loss.”

Robb also challenged the jury to consider the worth of a human being in light of the extraordinary sums that are paid for thoroughbred horses. “Every day in Kentucky, horses are bought and sold for $10 million to $15 million,” said Robb. “Well, if a horse is worth that much, we asked the jury to consider what a human being is worth.”

For The Rest Of Your Life

After awarding the family $9.9 million in compensatory damages, the jury in the bifurcated trial turned to the question of punitive damages.

During this phase, Robb argued that the jury should send a message about the consequences of drunk driving. “I argued that the jury should send the ‘Stowers’ message: If you drink and drive, and kill, you’ll pay for the rest of your life.”

In his closing argument in the punitives phase, Robb used information he had elicited from his expert on blood alcohol analysis on the social cost of drunk driving.

“The expert said that one-half of all traffic fatalities are alcohol-related,” said Robb. “That’s 20,000 deaths out of 40,000 auto deaths each year.”

Robb drove home the significance of this figure with a dramatic analogy. “To help the jury grasp what this means, I pointed out that that was the equivalent of two jumbo jet crashes weekly.”

“Now if we had two jet crashes a week, it would be a national crisis — we just wouldn’t tolerate it, we’d demand that something be done.”

“But with drunk driving deaths, because they happen one or two at a time, we don’t see it as a crisis. So I asked the jury to send a statement about how bad this really is, and how seriously we take it.”

Before trial, Robb was concerned that the jury would be reluctant to assess punitive damages because the defendant had already been punished in the criminal trial one month earlier.

For this reason, Robb filed a motion in limine to bar any mention of the criminal trial during the civil trial.

“Some people think it’s a good idea to have the criminal matter brought in because it can reinforce the liability of the defendant.” said Robb. “But we think it only makes sense to bring in such information with respect to a prior matter — as we did here on the defendant’s prior unrelated drunk driving conviction.”

“But as to liability, we think that if you need help establishing liability by using the criminal conviction, you’d better re-think your case.”

Robb asked the jury to award $100 million in punitive damages. The jury returned a punitive damages verdict of $13.5 million.

Individual Defendant

Robb also explained that he had to take steps against another element of the case that might have limited the size of the verdict — the tendency of jurors not to judge individual defendants as harshly as corporations with deep pockets.

“This was just a single guy, not even working for anyone,” said Robb. “Sometimes jurors won’t be as hard on a defendant like that — they prefer insurance companies and large corporations.”

To counter this threat, Robb addressed the issue forcefully in voir dire.

“We asked them in voir dire, ‘Would anyone agree that the plaintiffs have been damaged less because there is an individual defendant rather than a corporation?” he said.

“We needed to drive home that the law recognizes no difference in quantum or quality of loss if a plaintiff is injured by a single defendant or by a corporation.”

Schultz, Fields’ attorney, declined to comment on the particulars of the case, but was effusive in his praise of the Robbs.

John G. Shultz, attorney for defendant Fields, said, “I’ve had the privilege of defending cases all around the state and against most of the top plaintiff guns,” said Schultz. “And Gary and Anita are far and away the best I’ve ever seen.”

“They put on more evidence in this one-week trial than you see in most trials of three or four weeks. And Anita Robbs’ opening statement was the most powerful I’ve ever witnessed.”

Robb also had praise for Schultz, whom he termed an “excellent defense lawyer” who “did the best he possibly could with some difficult facts.”