Defendants ask Crowder to overturn rulings on 'Dead Man's Act' motions

Amelia Flood Nov. 30, 2009, 1:27am


Two defendants and counterclaimants in a complex Pontoon Beach negligence suit have filed a motion asking Madison County Circuit Judge Barbara Crowder to reconsider her rulings restricting testimony that fell under the state's "Dead Man's Act."

Defendants Werner Enterprises Inc. and its driver, Jose Velazquez, filed the motion Nov. 24. They claim that because the original suit's plaintiffs have settled their case, the law no longer applies.

The original suit was filed by Cynthia and Russell Martin against the estate of David Groves over Russell Martin's traumatic brain injury. That injury occurred when the Groves' car, in which Russell Martin was riding, struck a tractor-trailer that was backing up from a Pontoon Beach warehouse facility.

The Groves estate filed a wrongful death action against the driver, his employer, the leasing company at the accident site, the tenant company at the site and the logistics company hired by the tenant to oversee the facility's operations. Claims for contribution and counterclaims were then filed by the defendants against one another and the Groves' estate.

Crowder had previously ruled in two motions in limine that evidence and testimony about David Groves' possible intoxication at the time of the accident was inadmissible. One the motions in limine also barred Russell Martin from testifying about the day of the accident.

According to the Dead Man's Act, evidence and testimony about what went on in a dead person's presence can be barred when there is an adverse or interested party that was also present at the time. In the Groves suit, because Russell Martin, a party in the suit, was present for the alleged intoxication and other actions involving David Groves, nothing related to those facts could be introduced. The law is based on the notion that the dead man cannot refute those facts or testimony.

The Martins settled with all of the defendants this summer.

Because the Martins are no longer part of the suit and claims are still pending between the Groves estate and the remaining defendants, Werner Enterprises and Velazquez argue that the Dead Man' Act no longer applies. They are asking Crowder to admit the previously excluded testimony and facts.

If she does not, the motion continues, then the defendants have asked that she certify the question for appeal.

The defendants submitted a memorandum of law in support of the motion the same day.

The trial, which had been scheduled for earlier this year, has been pushed off into January 2010.

The Groves estate is represented by Tom Buckley and others.
Werner Enterprises and Velazquez are represented by Bill Brasher and Richard Nash.

The Martins are represented by Joseph Bartholomew.

The leasing company, CP-IPERS, was granted summary judgment in May. It was represented by Matthew Reh. Reh also represents the tenant of the site, Proctor and Gamble Manufacturing. The logistics company, YRC Logistics, settled with the Martins and the Groves estate. It was represented by Micahel Kleffner.

The case is Madison case number 07-L-224.

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