HILLSBORO – Montgomery County Circuit Judge Douglas Jarman must decide how much jurors need to know about the road record of DOT Foods driver Johnny Felton, whose truck struck and killed state trooper Kyle Deatherage in 2012.
DOT Foods and Felton seek to exclude his record entirely at trial in October, and widow Sarah Deatherage wants jurors to hear it down to internal discipline.
Their lawyers argued in Jarman’s court on April 15, in front of Deatherage and 12 other observers including two in state police uniforms.
DOT Foods attorney Stephen Kaufmann of Springfield told Jarman his ruling would determine the length of discovery and trial.
Kaufmann said accidents in 2008 and 2009 were very minor property damage incidents.
He said that if previous accidents came in, the court would be looking at mini trials within the trial with witnesses from those accidents.
His motion to bar the evidence stated that, “Illinois has long recognized the general rule prohibiting proof of one wrongful act by evidence of another such act.”
Don Devitt of Chicago, also for DOT Foods, said the methods it chooses for discipline do not create liability.
He said Deatherage’s lawyer, Tom Keefe of Belleville, misquoted the standard for willful and wanton conduct. The standard, he said, is utter indifference or conscious disregard for the safety of others.
He said Keefe pointed out that Felton’s disciplinary notes show he exceeded 75 miles an hour three times, adding that Texas and perhaps other states allow tractor trailers to exceed 75.
“We don’t know if he was violating the speed limit,” Devitt said.
He said Felton’s disciplinary notes don’t form law.
Further, he said Felton’s record showed 10 accidents in 500,000 miles.
“The first injury accident ever was in 2012,” Devitt said.
In one case, another truck backed into Felton’s truck, and in another, Felton ran over a table.
He said the record doesn’t show utter disregard for public safety.
Keefe told Jarman that DOT Foods and Felton were asking him to tell Sarah she had no cause of negligent retention.
He said there were seven or eight disciplinary actions, and he called Felton a serial log violator.
His supervisor, Keefe said, advocated to fire him or he’d kill somebody.
He said Jim Tracy, DOT Foods general counsel and a member of the family that owns the company, overruled the supervisor.
“If the evidence doesn’t come in there’s no cause of action,” Keefe said.
He said the evidence wasn’t to prove Felton’s negligence on that day but to prove conscious disregard on the part of DOT Foods.
“Johnny Felton had no more business behind the wheel of that truck than a four year old,” Keefe said.
He read email that Felton fell asleep and created a potential dangerous accident.
He said Felton falsified his log, which is a “crime.”
If the company had fired him in 2009, he said, “none of this” would have happened.
Felton had three accidents after the company said it would fire him for one more, Keefe said.
In the Deatherage accident, Felton pleaded guilty to a felony.
“He still works for them,” Keefe said.
Kaufmann said Felton works for DOT Foods but not driving.
Felton’s truck hit Deatherage after he dismounted from a motorcycle for a traffic stop on Interstate 55 in 2012.
Sarah Deatherage sued DOT Foods and Felton in Madison County circuit court, seeking recovery for economic loss and for grief and suffering.
DOT Foods moved for transfer, and Circuit Judge Dennis Ruth denied the motion.
DOT Foods appealed, and Fifth District judges reversed Ruth in 2014.
They offered Deatherage a choice among Montgomery County as scene of the accident, Brown County as home of DOT Foods, and Sangamon County as home of its registered agent.
Keefe and Deatherage protested the decision three weeks before an election that would decide the retention of Illinois Supreme Court Justice Lloyd Karmeier.
Keefe expressed suspicion that Karmeier manipulated Fifth District judges as a favor to Tracy family members who contributed to his campaign.
The protest kicked off a media blitz against Karmeier, but he won more than 60 percent approval and kept his job.
Deatherage then chose to litigate in Montgomery County.