Jury Awards $7.22 Million After Tractor-Trailer Rear-Ends Car, Causing Brain and Spinal Cord Injuries
After trial: The Seventh Circuit affirmed the denial of a new trial in June 2002, and no remittitur was sought, so the award stood. Ranks at the $7.22 million for Harold Whiting and his wife Leatrice (her loss of consortium); their daughter, also injured, was awarded $80,000 separately (decisions rule 16).
Won by Schafer & Schafer LLP.
A tractor-trailer going about 50 mph rear-ended the Whiting family's car at a red light, leaving Harold Whiting with permanent brain damage and a spinal cord injury. The defendants conceded negligence, and a federal jury in Hammond awarded Harold $6 million, his wife Leatrice $1.22 million for loss of consortium and their daughter $80,000. The Seventh Circuit later affirmed the denial of a new trial.
What happened
Harold Whiting was stopped at a red light in Indiana, with his daughter in the car, when a tractor-trailer hit them from behind. The truck, driven by Ricky Westray for Richardson Moving and Storage, was going about 50 mph. The impact pushed the Whitings' car 260 feet.
Harold and his daughter were both severely hurt. Before the crash, Harold was a motor inspector at U.S. Steel and an active part of his household. Afterward, six physicians who had examined or treated him testified that he had permanent brain damage and a spinal cord injury and was totally disabled. His communication skills had become childlike, he stuttered, and he had memory problems, loss of sexual function, constant pain and a severe limp that sometimes made him fall. He needed the near-constant attention of his wife, Leatrice, or their daughter.
The Whitings sued Westray, Richardson Moving and Storage and the related moving and van line companies in the U.S. District Court for the Northern District of Indiana. The defendants conceded that Westray was negligent, so the May 2001 trial in Hammond was about damages only. Timothy Schafer of Schafer & Schafer in Merrillville represented the family; John W. Patton, Jr. defended.
Most of the dispute centered on Harold's condition. The defense called no medical witness of its own and no economist. It argued instead that there were 'two Harold Whitings': it put on a Gary police officer who had stopped Harold for driving 70 mph in a 45 mph zone about a year and a half after the crash, a contractor who had talked with him about replacing windows, and a private investigator whose surveillance video showed Harold walking in public. The jury heard all of it, along with the testimony of Harold and Leatrice about the change in their lives.
After the four-day trial, the jury awarded Harold $6 million. It awarded Leatrice $1.22 million for the loss of Harold's services, society and companionship, and the couple's daughter $80,000. Together the awards came to $7.3 million.
The defendants asked for a new trial under Federal Rule of Civil Procedure 59, arguing that Schafer's conduct in front of the jury had denied them a fair trial. Judge Lozano denied the motion. He found that Schafer's behavior had not been a model of courtroom conduct but had not prejudiced the defense, and he noted that much of it happened at sidebar, outside the jury's hearing.
The defendants appealed. On June 28, 2002, the Seventh Circuit, in an opinion by Judge Terence Evans, assumed for the sake of argument that the conduct was improper and still affirmed. The panel, which also included Judges Easterbrook and Rovner, deferred to the trial judge's view of the proceedings and focused on the Whitings' injuries rather than the lawyers. Edward M. Kay of Clausen Miller argued the appeal for the defendants.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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