Cell Phone Use Creates New Standard for Auto Accident Investigations

February 5, 2002

O.P.M. (Other People's Mistakes) Alert

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Friends and Clients: An important new case recently came out that should make us all think twice before we use our cell phones while we are driving. See below.

Cell Phone Use Creates New Standard for Auto Accident Investigations

Checking for cell phone use in accident cases proves valuable in two recent Florida trials

Julie Kay
Miami Daily Business Review
December 26, 2001

Something about the case just didn't add up for David Deehl. The Coral Gables, Fla., lawyer couldn't figure out how 17-year-old Marissa Gran, in her new Ford Explorer, crashed into 75-year-old Bernard Goodman's 1997 Pontiac on May 26, 1999; Goodman died minutes later. The violence of the impact ripped apart his heart; a veteran Pinecrest, Fla., police officer described it as the worst crash she'd ever seen.

At the moment of collision, Goodman's car already was past the halfway point of the intersection. Yet the accident investigation found that Gran didn't even brake. How could the young woman not have seen Goodman's car? "It just didn't make sense," Deehl says.

So he subpoenaed Gran's cell phone records -- "just to be thorough," he says -- and it all became clear. The records showed that Gran was on the phone at 2:20 p.m. -- exactly the time police say the accident occurred. When he saw that, the attorney recalls pumping his fist and yelling, "Yes!"

On Dec. 14, Deehl, a partner at Miami's Deehl & Carlson, won a $5.2 million verdict from a Miami-Dade Circuit Court jury in the lawsuit filed by Evelyn Goodman, Bernard's widow, against Gran. The jury found that the teen-ager was 90 percent responsible for the fatal accident.

Coincidentally, in a different courtroom in the same courthouse on Dec. 14, another jury awarded a $20.9 million verdict to a woman who was critically injured in a car crash with a driver who also was on his cell phone at the time of the collision. In that case, plaintiff's attorneys Michael and Andrew Haggard similarly subpoenaed cell phone records and discovered that the driver -- who had said he was not talking on the cell phone -- was on the phone two minutes before calling 911.

Cases like these have prompted cities, counties and states around the country to ban use of hand-held cell phones while driving; the city of Pinecrest as well as Miami-Dade County both have passed such laws. State Rep. Irv Slosberg, D-Boca Raton, had proposed a state ban but recently dropped it as part of a deal with cell phone manufacturers.

Under the deal, Slosberg regularly visits exits of Florida's Turnpike around the state accompanied by representatives of cell phone manufacturers, who distribute hands-free devices at no charge.

Subpoenaing cell phone records in serious car accidents is fast becoming standard procedure for personal injury lawyers in accident cases. Indeed, Andrew Haggard contends that a plaintiffs' lawyer who does not investigate the possible use of a cell phone by a defendant should be sued for malpractice.

Haggard has been checking cell phone records ever since the fatal accident involving Carla Wagner in June of last year. In that case, the 17-year-old Wagner was speeding and driving under the influence of alcohol and marijuana, when she reached down for her cell phone and slammed into 16-year-old Helen Marie Witty, who was skating on a bicycle path in Pinecrest. Witty died instantly.

"You almost have to subpoena the cell phone records these days," says Haggard, a partner at Haggard Parks Haggard & Bologna in Coral Gables, Fla.

Deehl agrees. "I'm always going to do it from now on," he says. "It's become a huge factor."

In the Goodman case, the cell phone records were instrumental in clearing the victim of all but a small share of responsibility for the accident, Deehl says. Before he obtained the record, the defendant and her lawyer were blaming Goodman for the accident.

Vindicating Goodman and winning damages for his widow was a personal mission for Deehl. Goodman had been the scoutmaster for Deehl's Boy Scout troop in the 1960s and had remained a family friend. Deehl remembers Goodman as a kind-hearted "big bear of a man."

A retired real estate developer and the father of four grown sons, Goodman served as president of his synagogue and collected toys for orphanages in Haiti, flying there to deliver them personally. Goodman's son Ross is a lawyer in Pensacola who won the Florida Bar Pro Bono Award in 1999; the awards ceremony was the last time father and son saw each other.

In May 1999, Goodman was driving south on Southwest 62th Avenue approaching 120th Street, which is a wide road notorious for speeders; Palmetto High School is located nearby. Because of the speeding problem, police have placed two radar-detection trailers near the intersection. That day, however, both trailers had been temporarily relocated.

Gran, the daughter of a neurologist and a student at Palmetto High, was driving to pick up her brother at the school in her 1998 Explorer. As she approached the intersection, she had only 10 minutes to get to the school. Gran said she was traveling at 35 mph. But her friend, in a deposition, said Gran admitted she was speeding.

As Goodman proceeded through the intersection, Gran broadsided his car so hard that Goodman's skull was fractured, his neck broken, his lungs bruised and his heart torn apart. Gran suffered only a broken hand. Denise Jackson, the first Pinecrest police officer on the scene, testified that the accident was the worst she had seen in her 18 years on the force.

COUP DE GRACE

At first, Gran and her attorney, Cindy Post Massion, an employee of Gran's insurer, USAA, tried to blame Goodman for the accident. Their story and theories kept changing. Massion did not return calls from the Daily Business Review for comment.

First, they said Goodman blew the stop sign at the intersection. But Deehl hired an accident reconstruction specialist who showed jurors that Goodman most likely did not run the stop sign, given the position of both cars after the accident, the force of the impact and the skid marks.

Then the defense alleged that Goodman fell asleep at the wheel or fainted. But Deehl grilled witnesses who testified that Goodman was not slumped over the wheel prior to the accident, thereby ruling that out.

Then they claimed that Goodman, who had a cardiac pacemaker in his chest, must have had a heart attack. Deehl asked the medical examiner to check Goodman's pacemaker; he reported it was working properly. That, combined with the fact that Goodman was bleeding after the accident, demonstrated that Goodman did not suffer a heart attack.

But the coup de grace was the cell phone record. At first, in depositions, Gran denied she had been talking on her cell phone at the time of the crash. After being presented with the record, she changed her story in deposition; six months later she filed an errata sheet. In it, she stated that maybe she was on the cell phone at 2:20 p.m., but that the accident must have occurred later.

The jurors didn't buy it. They found Gran was 90 percent liable, with Goodman 10 percent responsible.

After the verdict was read, Evelyn Goodman approached Gran and gave her a hug. They both began crying. "This girl has a life ahead of her," Evelyn Goodman says. "I told her, 'You can come talk to me any time.' She said she wanted to."

Mrs. Goodman, who found that the trial brought her "closure," plans to donate most of the judgment money to three charities in Haiti -- the Little Children of the Good Shepherd, the Foundation for Worldwide Mercy and Sharing and the National Organization for Assistance to Haiti. An orphanage there recently was renamed for her husband.

Mrs. Goodman says she would like to see a complete ban on cell phone use while driving. Ironically, one of her sons is an executive with Nextel, a cell phone company. "It's a danger," she says. "Cell phones are being overused."

Deehl doesn't agree. He favors hands-free sets, the kind he uses in his car, along with intensive driver training for teen-agers who have their own cars and cell phones.

But Deehl doesn't put all the blame on negligent teen drivers like Gran. "The parents need to be more responsible," he says. "

In a complicated, pretrial agreement worked out between the two parties, Gran's insurer, USAA, agreed to pay $1.3 million if Mrs. Goodman won the case, while Goodman's auto insurer, First Florida, would pay $1 million under the uninsured motorist coverage. But if USAA doesn't pay the agreed amount within seven days of the verdict, it must pay the entire $5.2 million.