Trial Magazine

Doe v. Roe, Confidential Dkt. No. (Mo. Cir. Ct. Confidential Date)

In April 2012, a three-year-old boy and his mother’s fiancé were headed to day care on a Missouri highway. As their vehicle crested a hill, it collided with a parked tractor-trailer that was being offloaded on the highway. The mother’s fiancé died, and the little boy suffered a severe brain injury. He has regained some ability to talk, and after years of intensive therapy, he can walk short distances with a leg brace, walker, or other assistance. But he still requires round-the-clock care, leaving his mother unable to return to work.

In 2013, the boy and his mother sued the semi company and its driver for negligence, strict liability, negligent hiring, negligent supervision, and negligent retention. The boy’s past medical expenses exceeded $1 million.

The plaintiffs’ attorney, Chip Gentry of Jefferson City, Mo., said the circumstances surrounding the collision made this case especially difficult. “It was apparent from the outset what the defense position would be: This was a 13-foot-tall, 8-foot-wide object in broad daylight that purportedly anyone could see,” he said. Although the driver had placed warning triangles behind the parked semi, there was a dispute over whether they were properly placed to provide adequate warning of the hazard.

“When people hear about a vehicle colliding into another one, the natural reaction is to assume whoever struck the parked or stopped vehicle is at fault,” Gentry said. But he and attorneys Jason Call and Blake Markus, also of Jefferson City, were not deterred. “We took the case because it was clear the little boy and his family needed help to obtain the best health care available,” Gentry said.

“We quickly mobilized and had a semi taken to the scene and parked in the same place. We wanted to see the issues at hand with our own eyes,” ­Gentry explained. “The first thing that surprised us was that the top of the semi blended in with the scenery.” The truck’s location and coloring faded into the hills behind it, and the sun’s position during the morning commute further reduced visibility. “Nevertheless, at some point in time, over a 700-foot distance, there was certainly something to be seen,” Gentry said. “If this was a case about time and distance, we would likely lose.” So they decided to reframe the case.

Working with three different focus groups—one before the first mediation and two others during negotiations—reinforced their concerns. 

“There was a natural tendency for potential jurors to have a self-preservation bias and a hindsight bias,” Gentry said. “No one wanted to put themselves in their own car with their own kid and imagine the potential of not seeing a semi parked on the highway.” So he shifted the argument—instead of focusing on the driver’s reaction, Gentry focused on the parked semi.

Under Federal Motor Carrier Safety regulations 49 C.F.R. §393.1 and §393.9, semi-trucks must have operable lamps, including hazard lights. But the parked semi’s lights were inoperable, rendering the semi “out-of-service” under the law.  An out-of-service truck must not be operated on the highway and must be parked in the safest possible location. “We came up with and demonstrated—through our expert and an exemplar semi—three other locations where it could have been parked safely off the highway and offloaded,” Gentry said.

During discovery and mediations, when the defense made the argument Gentry anticipated—that the mother’s fiancé had up to 12 seconds of time and distance to see and avoid the collision—Gentry shot back, blaming the truck driver and the company by highlighting the defendants’ decisions that led up to the collision. He argued that company supervisors and the driver failed to thoroughly inspect the area to determine the safest place to park and that they left the semi on the highway for 20 minutes, even though the driver later admitted that the truck could have been offloaded in 12 minutes.

Gentry argued that the trucking ­company failed to properly train the driver to safely park and offload products in rural areas, failed to conduct a background check on the driver, and did not verify that log books were correct and that pre-trip inspections were ­performed. “We could point at months of the company’s decisions that led to the mother’s fiancé’s dilemma of dealing with at most 12 seconds to react,” Gentry said. “While focusing on the defendants’ actions, we also countered the perception and reaction time arguments by providing expert opinions that a person’s reaction time must be analyzed in each case rather than generalized.”

After three mediations, the parties settled for $15.5 million. Going into the case, Gentry expected a trial, and he hoped to reach a resolution that would “take care of this little boy for the rest of his life and provide him the best opportunity for top-shelf health care—and the best opportunity to live as normal a life as possible in light of his limitations.” 

Gentry said the case taught his team to question preconceived notions of what a case is about. Focus groups were an essential tool to get to the root of the story. “Focus grouping fundamentally and completely changed our themes, our word choices, and our strategy,” he said. Gentry prepared experts to counter the driver fault issue, but because he found land mines in that strategy, he shifted focus to the choices and actions the company made over several months.

Things have already begun to improve for the boy and his mother. “They had been living in the basement of her parents’ home, and she’s been a 24-hour caregiver,” Gentry explained. But the settlement provides the by and his mother with the necessary funds to hire caregivers, and she can finally build a home that accommodates her son’s physical limitations. “They’ve broken ground and are able to move on with their lives in a positive and meaningful way.”

Ryan Watson is an associate editor of Trial.