Attorney gets plug in new legal thriller-- Auto crash forensic consultant pens novel about expert witnesses

By John Minnis

Legal News

Nationally recognized auto crash forensic consultant Sal Fariello has worked for (or sparred with) thousands of lawyers, but out of all of them, he chose Grosse Pointe attorney Gary M. Wilson for acknowledgement in his most recent book, "Expert Witness."

"I've never run into someone like Wilson," Fariello said during a recent interview near his Florida home. "The man is the most tenacious bulldog in a courtroom I've ever seen."

The crash expert got to see Wilson work a courtroom in a Monroe County case, People v Peter Elmer Nickel (2004). The defendant was charged with four felonies following the death of a longtime friend and employee during a Dec. 7, 2002, accident in which the defendant's pickup truck left the road and hit a utility pole. Both the defendant and the employee were drunk at the time.

Nickel was thrown from the truck, leaving a "snow angel" where he landed. The employee was also thrown from the pickup and was pinned under the bed of the truck when it came to rest. He was dead at the scene.

The defendant walked to a nearby house to get help.

Nickel, who owned the truck but hadn't had a driver's license for 20 years due to drunken driving convictions, was charged with Operating Under the Influence Causing Death; Homicide-Manslaughter with Motor Vehicle; Operating (While) License Suspended, Revoked, Denied Causing Death; and Failure to Stop at Scene of Accident When at Fault Resulting in Death -- all 15-year felonies.

The problem was the defendant wasn't driving. The employee was. Nickel, snug in his Carhartt coveralls, was in the bed of the truck. Given the facts that it was Nickel's truck, that he was drunk and that he had a history of drunken driving, police didn't believe him.

Case closed.

Wilson, a former Wayne County assistant prosecutor and no slouch in accident scene reconstruction himself, believed his client and knew he needed a top expert to prove it. That is when he contacted Fariello.

"I couldn't have reconstructed the accident," Wilson said. "I have a pretty good background in accident reconstruction, but I couldn't have done what he does. Sal's report, all 12 pages of it, was worth its weight in gold."

Fariello began his career in the 1970s investigating automotive defects for a couple of auto manufacturers. At first, clients began seeking him out for his expertise. He is now senior analyst of his own motor vehicle forensic sciences consulting company, Eastern Forensic Science Group, out of Gainesville, Fla.

He is well known for his role in helping consumers recover more than $17 million in Skelton v General Motors, which he discussed in his book, "Mugged By Mr. Badwrench." In another book, "The People's Car Book," he revealed how to avoid getting ripped off by car dealers and repair shops. He co-authored a training that is used as a textbook in many colleges and has been sold worldwide. He also authored "The Plaintiffs' Lawyers Guide to Minor Impact Cervical and Lumbar Injury," a work that has received considerable praise from the legal profession. Fariello is also the author of "Airbag Injuries, Causation and Federal Regulations."

His newest book, "Expert Witness," is a novel about an expert witness who, his fictional wife fears, is losing his independence, integrity and self-worth by the big money being paid in the expert witness racket. She fears he is selling his soul to insurance companies and plaintiffs' attorneys seeking a favorable "expert opinion."

"It just happened accidentally," he said of becoming an automotive forensics consultant. "It would be an exciting field except for the corrupting influence."

While the novel is built around the circumstances of real cases Fariello has worked on, "Expert Witness" is no more autobiographical than are "Tom Sawyer" or "Huck Finn."

While Wilson's case was not mentioned in "Expert Witness," it is mentioned in Fariello's acknowledgement at the beginning of the book:

"His trial work in the case of People of the State of Michigan v Peter Nickel was personally witnessed by the author and was nothing short of amazing -- the kind of electrifying performance you only see in courtroom dramas."

Before Wilson could perform in the courtroom, he needed Fariello to reconstruct the accident.

"What he found first," Wilson said, "was that there were other factors the deputy did not even consider. They did not consider that alcohol was not the cause. They smelled alcohol and came to the conclusion that that was the cause of the accident. They did not consider the grading to the road, washboard, the speed of the vehicle. They didn't consider mechanical failure, such as tires."

While looking at the sheriff's photos, Wilson noticed that the right rear tire had been replaced with a tire that did not match the others. Deputies could not explain when or why the tire was switched. Wilson suspected a tire blowout, perhaps due to a defect in the road, caused the accident.

"There are a couple of times in everyone's career where the light bulb goes off," Wilson said. "It was so obvious."

When the tire blew, the pickup truck was pulled to the right. The driver over-corrected and veered into the left ditch, where the truck rolled over, went end over end and slammed into a utility pole.

The investigating deputy claimed the man killed was the passenger and that he was thrown through the window headfirst. However, he was found bare-chested with his sweatshirt on the ground, consistent with being thrown through the driver's window feet first, exactly what Fariello predicted.

The investigating deputy further claimed Nickel was the driver and that he had climbed out of the vehicle after the truck came to rest. However, the ample forensic evidence indicated that Nickel would have been dead had he been inside the cab.

"My closing argument was if you believe Pete Nickel was driving, convict him. The point being he wasn't driving. That was proved by Fariello's reconstruction of the accident. He was able to position the (man who was killed) behind the wheel."

On Feb. 6, 2004, two years after the fatal accident, a Monroe County jury acquitted Nickel. But by then, he was a ruined man. His employees left him or found work elsewhere.

Fariello's book, co-authored with his wife, Vera Fariello, is a polemic condemnation on the use of expert witnesses as practiced in U.S. courtrooms and, to a lesser extent, on lawyers themselves.

In "Expert Witness," Tony Mancuso is the expert witness who is paid a lot but cannot be bought. While he remains faithful to science, he fails to see the corruption around him. Fortunately, his wife, Laura, can. Her contempt is not limited to so-called expert witnesses who prostitute themselves for money. She also has nothing good to say about attorneys ("pettifoggers"), having had her fill of them as a paralegal.

Her intuition always proved spot on, as well as her fidelity. While her husband all but succumbs to temptation with a young woman he met at a bar, Laura, when similarly tempted, settles for a handshake.

"The philandering, the sexual stuff, we added to spice up the book," Fariello said. "He's not my alter ego."

The authors also bring in some social asides, such as the time Mancuso's college-age daughter comes home with a black eye. He forces her to tell him who did it -- the boyfriend. Able to handle himself quite well in a fight, Mancuso gets the boyfriend alone and leaves him with swollen testicles and a shiner of his own and a warning to stay away from his daughter.

No good deed goes unpunished as both daughter and mother turn on Tony for "interfering."

No only can Mancuso handle himself on the street; he is also a frustrated, would-be concert pianist.

He also is a cigar aficionado who hangs around with 20-somethings at a Tampa cigar bar and sympathizes with their complaints about how the Baby Bombers have screwed things up and left it to them to pay the price.

"I can see their point of view," Fariello said. "They get out of school $100,000 in debt and no jobs. The kids are getting hammered. All of that was put in to add spice."

The main message of "Expert Witness," though, is the ubiquitous use of "experts" to win cases at any cost.

Fariello, who is winding down his business, said the only solution is to overhaul the system. Short of that, he recommends having judges select or at least vet expert witnesses. He said judges should not only ask expert witnesses for their CVs and cases in which they testified, but also the cases in which they refused to take because they did not support their clients' claims.

"It is not an indictment of lawyers," Fariello said, "but of the expert witness racket. Scoundrel lawyers bring these rats to the surface."

Though an expert witness, Fariello is not an attorney. Since the book deals with a lot of law and courtroom scenes and procedures, the authors sought Wilson's help to advise him on the legal aspects.

"As the book progressed," the author said, "we needed legal input. I cannot say enough good things about the man."

Wilson said Fariello took him to The Hill, a fine Grosse Pointe restaurant, to tell him he wanted to acknowledge him in the book.

"I was blown away," Wilson said. "I said, 'Sal, all the attorneys you've worked with through the years...' I have tremendous respect for him. He is unflappable. You can't throw him off."

When asked if the "expert witness racket" was as bad as the book makes out, Wilson said, "Yes. The big reason is to win at any cost."

He agrees with Fariello's recommendations that judges select the expert witnesses and that conclusions contrary to the clients be included among the experts' bona fides.

Wilson also agreed that "Expert Witness" is pretty hard on the legal profession. But was it justified?

"Absolutely."

Published: Mon, Dec 27, 2010