By Lee Dryden
BridgeTower Media Newswires
DETROIT — A jury’s verdict assessing 60 percent of fault for an accident to the plaintiff’s decedent has been affirmed by a Michigan Court of Appeals panel.
In Xerri v. Williams, plaintiff’s decedent William D. Xerri died after his 2010 Ford Taurus collided with a garbage truck driven by defendant Patrick Anthony Williams.
After the Monroe Circuit Court jury’s decision that resulted in no damages to the decedent’s estate, the appeals court panel rejected the estate’s arguments on appeal.
The unpublished per curiam opinion in the wrongful-death matter was issued by Judges Amy Ronayne Krause, Patrick M. Meter and Cynthia Diane Stephens.
The fatal accident occurred Dec. 20, 2013, at North Telegraph Road and Mall Road in Frenchtown Township in Monroe County.
Plaintiff’s decedent was 70 years old and his right leg had been amputated in 2010 due to blood clots and infections. He was driving southbound on Telegraph, north of the intersection with Mall.
Williams was driving a garbage truck owned by his employer, Stevens Disposal and Recycling Service Inc., northbound on Telegraph, south of the intersection with Mall.
“The collision between decedent’s vehicle and Williams’s vehicle occurred at the intersection as decedent attempted to drive through the intersection and Williams attempted to turn left onto Mall,” the opinion stated. “Decedent suffered fatal injuries in the accident.”
The decedent’s son, Brent, acting as personal representative of the estate, filed suit alleging negligence against Williams and Stevens, including failing to yield to oncoming traffic. After a five-day trial, the jury found that plaintiff’s decedent was 60 percent at fault in the accident and the defendants collectively were 40 percent at fault.
The plaintiff first argued that the trial court abused its discretion by excluding evidence of an April 29, 2014, drug test in which Williams tested positive for amphetamines. The panel stated that the plaintiff failed to “present an argument addressing whether or how the alleged error resulted in substantial prejudice that denied plaintiff a fair trial.”
“We find plaintiff’s argument regarding the relevance of the drug test difficult to follow, but apparently plaintiff believes it would cast light on Williams’s habitual use or nonuse of amphetamines,” the panel stated, adding that the primary issue was who had been negligent in the crash.
“It was undisputed at trial that Williams tested positive for amphetamines on the date of the accident. There was, however, no evidence that Williams was impaired at the time of the accident, and two witnesses who talked to Williams at the accident scene testified that he did not seem impaired. The fact that Williams tested positive for amphetamines again four months after the accident does not help establish whether Williams was impaired at the time of the accident.
“Because it is undisputed that Williams had amphetamines in his body on the date of the accident, the fact that he tested positive again four months later was simply irrelevant. There was no evidence connecting any habitual drug use to Williams’s decision to turn left, particularly given the lack of evidence that Williams was impaired at the time of the accident.”
The plaintiff also argued that evidence of the drug test was relevant to challenge Williams’s credibility because there was suspicion that Williams had tried to cheat the test. But the panel pointed out that the trial court allowed the plaintiff to present evidence regarding a Jan. 14, 2014, drug test result indicating that Williams’s urine sample was diluted.
“Plaintiff thus had an opportunity to present a theory that Williams was less than truthful or candid in connection with the drug testing procedures,” the opinion stated.
The panel also rejected the plaintiff’s argument that the trial court abused its discretion in excluding an April 23, 2014, letter from defense counsel to the Monroe County Sheriff’s Department.
The letter “reflects purported medical and pharmacological research conducted by defense counsel to support the conclusion that Williams’s legal use of over-the-counter medicine could have created a false positive result for amphetamines.”
“Although the letter was not admitted at trial, the key information contained in the letter was made known to the jury through Williams’s testimony,” the opinion stated. “Williams admitted at trial that he told the general manager of Stevens that Williams was taking a medicine that Williams thought could have caused the positive drug test.
Williams admitted at trial he is now aware that two toxicologists have indicated that the medicine would not cause a positive test for amphetamines.
“There is no reason to believe that admission of the letter would have changed the outcome of the trial.”
The panel also ruled for the defense when the plaintiff argued that the trial court abused its discretion in refusing to allow plaintiff to use, as a demonstrative aid at trial, an animated video depicting the accident.
“The jury heard the testimony of the eyewitnesses and did not need an animated video to understand what occurred,” the opinion stated.
Another plaintiff argument that failed to persuade the panel was that the trial court abused its discretion in admitting evidence that some of the decedent’s family members recommended that he obtain hand controls for his vehicle because he “sat awkwardly in his vehicle in order to use his left foot to apply the brake and the gas pedal” after the amputation of his right leg.
“Plaintiff argues this testimony should not have been admitted because there is no evidence that decedent’s failure to obtain and use hand controls caused the accident,” the opinion stated. “However, there was undisputed evidence at trial that decedent failed to apply his brakes before the accident, even though another driver going the same direction as decedent and who was further ahead of decedent stopped at the intersection as the light was changing.
“The testimony of decedent’s family members regarding their observations of his driving and their concerns about how he drove, which were intertwined with their recommendations to him to get hand controls, offers a possible explanation for why decedent’s left foot failed to hit the brake pedal.”
––––––––––––––––––––
Subscribe to the Legal News!
http://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available
