Defendants hit with $3 million verdict claim judge allowed 'zombie-like' evidence; Seek new trial

Amelia Flood Jan. 12, 2011, 2:01am



Defendants who were hit with a $3 million-plus injury verdict last year in Madison County, argue that "zombie-like" evidence and court rulings unfairly slanted the trial's outcome.

Defendants Gary Collier and his employer, Millstadt Rendering Co., filed a 26-page post trial motion asking to set aside the verdict won by plaintiffs Thomas and Betty Edwards in November.

"This court should grant a new trial because...numerous errors occurred at trial, including rulings of the trial court that resulted in a de facto directed verdict," the motion states.

Circuit Judge Ann Callis is set to hear the post-trial motion at 10 a.m. on Friday.

In their complaint, the Edwardses claimed that Gary Collier fell asleep while driving a tanker truck on Interstate 55 in Ste. Genevieve County, Mo.

Collier then allegedly drove off the road, causing his rig to lose the tanker. The tanker crossed the highway median into the left lane of the other side of the highway were Thomas Edwards was driving his own tractor trailer.

Thomas Edwards' truck crashed into the tanker and was severely injured.

The Edwardses sued in 2008 on claims including negligence and loss of consortium for Betty Edwards.

Slay Transportation Inc., Thomas Edwards' employer, filed to intervene in the suit seeking to recover damages to its tractor trailer.

Millstadt and Collier argued that Thomas Edwards had uncontrolled diabetes that led him into an accident he could have avoided. The defendants also claimed that Slay knew about Thomas Edwards' condition and that it should not have allowed him to drive at all.

At trial, attorneys from both sides hammered at expert witnesses and each other.

While plaintiffs' attorney Eric Carlson told jurors during his closing that the defense was trying to confuse them, his counterpart, Martin Morrissey, accused Carlson of "mudslinging."

The jury deliberated into the evening Nov. 17 before finding Collier and Millstadt 93 percent liable for the accident.

The jury awarded Thomas Edwards $2.5 million in damages. It granted Betty Edwards $800,000 and Slay $110,863.08.

The case was tried under Missouri law and the verdict form did not parcel out what amounts for medical bills and other factors made up the total awards.

Collier and Millstadt take particular issue with rulings made related to Collier's tractor trailer rig and its tires.

Of the rig and its 16 tires, the defendants only preserved two tires for trial. There were photographs taken of the truck and its tires produced during the course of the case.

Millstadt sent its wrecked rig to the scrap yard, according to the post-trial motion.

The two preserved tires sat in the courtroom in view of the jury for much of the trial.

Madison County Chief Judge Ann Callis, who oversaw the suit, eventually awarded the plaintiffs a sanction over the missing rig and tires.

The plaintiffs filed an amended complaint with claims of spoliation of evidence.

Callis threw out those counts.

However, Collier and Millstadt argue that Callis's instructions to the jury and her rulings in court allowed the plaintiffs to argue that they destroyed evidence when there were no claims that they had.

"The plaintiffs were able to argue Defendants did, in fact, spoil evidence," the post-trial motion reads. "The plaintiffs had the best of both worlds: the benefit of arguing Defendants destroyed evidence without the burden of proving a cause of action for spoliation of evidence. The end result being, in effect, a directed verdict against Defendants on a spoliation claim and an endorsement by the Court of the plaintiffs' argument that the Defendants hid evidence. In sum, a direct comment by the Court on Defendants' credibility."

Later in the motion, the defense again stresses the role of Callis' tire rulings in what they claim was an unfair verdict.

"This court dismissed the plaintiffs' spoliation claims pre-trial in light of the plaintiffs' request for the application of Missouri law, and then let the plaintiff raise the issue zombie-like as if reincarnated, during trial. The Court went further and decided the issue in plaintiffs' favor, telling the jury Defendants destroyed relevant and material evidence...

"The Court's ruling mandates that a potential defendant must perverse an entire universe of immaterial evidence or be punished before the jury. The suggestion is incredible and places an insurmountable duty on a potential litigant that is determined not by law but by the imagination and creativity of an opposing attorney...

"There is simply no chance the jury would consider any of Defendants' arguments in this case once they learned the Court had determined Defendants had hidden and destroyed evidence."

The defendants further claim that Callis' mistakes regarding the tires and scrapped rig influenced the testimony of plaintiff's expert Nathan Shigemura.

Shigemura testified that Collier drove off the road and caused the accident by doing so.

The defendants argue that Shigemura admitted on the stand that he did not offer opinions about what role the tires could have played.

"In fact, he was able to opine, without even viewing the two tires available, that Collier simply drove off the road; that the tires had nothing to do with the accident," the motion reads.

The defendants also contend that the plaintiffs violated a motion in limine, that Corporal Brent Fowler of the Missouri Highway Patrol was improperly allowed to testify as to the accident's cause and that made errors related to evidence and testimony about Thomas Edwards' diabetes.

The post-trial motion also takes aim at the amount of the verdict.

"The award of $2,500,000 to Thomas Edwards is excessive and is clearly the result of passion, sympathy, and prejudice," the motion claims. It goes on to call the $800,000 awarded to his wife "grossly excessive," arguing Betty Edwards testified that the accident brought her and her husband closer.

The defendants ask Callis to order a new trial, enter a judgment notwithstanding the verdict or to remit the damages awarded to Thomas and Betty Edwards.

Eric and Jon Carlson represent the Edwardses.

Morrissey and Dominique Seymoure represent Collier and Millstadt.

Michael Ward and Joseph Swift represent Slay.

The case is Madison case number 08-L813.

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