BY ALLAN VOUGHT, email@example.com
8:55 AM EST, November 12, 2012
Testimony is due to resume Tuesday in a lawsuit that claims negligence by the State of Maryland and three of its transportation agencies contributed to a 2001 motor vehicle accident that killed two people on the Thomas J. Hatem Memorial Bridge.
The suit by Garrett Tollenger, the father of one of the deceased victims, 12-year-old Ashley Tollenger, claims the Maryland Transportation Authority failed to correct roadway defects and install a center crash barrier, which might have prevented the girl's death. Ashley Tollenger's estate, for which her father is personal representative, is also a plaintiff.
In addition to the state government and the Maryland Transportation Authority, defendants include the Maryland Department Transportation Department and the State Highway Administration.
After nearly eight years of delays, precipitated by legal maneuvering that included unsuccessful efforts by the state to dismiss the suit and to suppress the release of certain internal documents, the trial finally started last Wednesday before Judge M. Elizabeth Bowen and a jury of seven women and two men. The trial is expected to last the rest of this week.
In opening arguments, one defense lawyer said the accident, though "a tragic loss" of lives, was not the fault of the state but rather the failure of one the drivers involved, Kenneth Connor, to control his vehicle under adverse conditions.
Any blame due the state is "misplaced," said Stephen Thibodeau, who represents the state along with Damon Pace.
Mr. Connor, 52, who was driving a Mazda pickup in which Ashley Tollenger was a passenger, was the girl's stepfather. He also died in the accident.
The plaintiffs, who are represented by Clay Barnes, claim the state knew there were potentially hazardous conditions for drivers using the four-lane bridge, not the least of which was the absence of a center median barrier to prevent vehicles traveling in one direction from crossing into lanes of oncoming traffic.
MDTA engineering reports were introduced into evidence by Barnes last week that recommended installation of either a permanent steel barrier, a temporary concrete barrier or a permanent concrete barrier, commonly called a Jersey barrier. In his opening argument, Barnes said MDTA had approved a project to install a Jersey barrier and then inexplicably canceled it in October 2000, 10 months before the accident that killed Ms. Tollenger and Mr. Connor.
Under a pretrial ruling, the plaintiffs must first prove negligence on the part of one or all of the defendants in this phase of the case. If they are successful, a second trial will be held on the issue of any damages due the plaintiffs.
'A nice day until…'
During Friday's testimony, a passenger in the other vehicle involved in the accident recalled that Aug. 10, 2001 was "a nice day until we hit the bridge," when there was a sudden downpour.
"It was raining so hard, you could barely see," said Rebecca Wren, of Havre de Grace, who was a passenger in a Jeep Cherokee driven by Harry Klotz, of Colora.
Wren, who was 17 at the time, said she was riding in the front seat of the Cherokee, which was traveling in the "slow lane" - the right eastbound lane going from Havre de Grace to Perryville, when they saw the back end of a pickup truck traveling in the opposite westbound direction "starting to swerve."
Under questioning by Barnes, Wren she saw the white Mazda truck, driven by Mr. Connor, coming toward them, moving from side to side, but could not see inside it because "it was raining so hard."
"We hit the brakes but [the pickup] hit us and spun around the same direction as us," said Wren, who also recalled the accident happened in a "split second."
When the pickup hit their vehicle on the driver's side, Wren said she "screamed" and recalled that Klotz ended up nearly sitting her lap from the impact. She said she frantically began calling 9-1-1, "but they couldn't understand me, I was crying so hard."
When Barnes asked Wren if she was injured, Pace, one of the state's lawyers, objected, leading to one of many conferences at the bench among the lawyers and Bowen throughout Friday's proceedings.
"I had a seat belt on, but I hit the dashboard so hard I tore a ligament in my right knee…they couldn't repair it," Wren said when her testimony resumed. When she began to talk about the long-term effects of the injury, Pace objected again, the judge sustained it.
Wren then described how she and Klotz were trapped in the Cherokee and had to be pulled out from the back by rescue workers.
"I didn't know where we were…I didn't know if we were hanging off the bridge," Wren said, recalling that Klotz, who suffered a broken femur, was screaming in pain.
Barnes asked Wren if she looked at the other vehicle once she got out of hers, and she replied she could see the driver of the pickup "hunched over," but nothing else, through the truck's back window.
After EMTs placed her in a back brace at the scene, Wren said, she saw a tarp had been draped over the pickup, an indication to her "the people inside were deceased."
Klotz, who was 21 at the time of the accident, also testified Friday, as did Tanya Hess, who witnessed the accident; however, much of the day's testimony was from Robert Miller, an accident reconstructionist who was called as an expert witness for the state.
'Driver error' conclusion
Miller, who also testified Thursday, took the stand in the middle of the plaintiffs' case because he had a previous obligation to testify in a lengthy trial in Florida next week, Pace said during a recess.
Under direct examination by Pace, Miller explained how he conducted his investigation of the accident and how he compiled a 2006 report in which he concluded the accident was caused "by loss of control by the driver [Mr. Connor]."
Asked by Pace if that meant "driver error" was involved, Miller said yes, explaining that he had concluded Mr. Connor was driving "too fast for conditions" and that there was "failure to maintain control of his vehicle."
The witness also said at several points during both direct and cross examination that he could find no evidence to suggest the condition of the roadway contributed to the accident. Nor, he said, was there any evidence of standing water on the road surface.
Miller also said if there had been a barrier, particularly a concrete Jersey barrier, separating the oncoming lanes of traffic on the four-lane bridge, it would not have prevented an the accident but would have "directed" the Mazda back into the lanes on its side of the barrier, rather than crossing into the lanes of oncoming traffic.
Though Miller conceded the outcome "would have been very different" with a barrier in place, he said that didn't necessarily mean nobody would have died in the Mazda or in another vehicle traveling to the right of the barrier. Based on his research, he said, in many instances a vehicle striking a Jersey barrier will roll over. There is a greater probability of fatality in a rollover collision, he added.
Miller, who is a licensed mechanical engineer, testified he relied on police reports and other official documents from the accident investigation, while also applying "principles of physics," to determine what happened.
He also visited the scene in February 2006, taking measurements of the slope of the roadway, while bridge police directed traffic around him, he said.
Because it was five years after the accident when he began his investigation, Miller said he could only rely on photographs taken by police to examine the condition of the vehicles following the accident. He said there was no way to determine how fast either vehicle had been going before or during impact, nor had police investigations found any tire marks to take skid measurements, explaining they had been washed away by the rain.
Relentlessly attacking Miller's methodology and conclusions under cross examination, Barnes suggested at several points that Miller had either failed to go far enough in his research or had been provided with insufficient or incomplete information by his clients, the state defendants. Miller denied that was the case.
Barnes asked Miller if he had interviewed any of the survivors of the crash or witnesses or any of the police investigators, particularly with regard to how hard it was raining prior to the accident. He said he had not, noting that such information taken so long after the fact is typically unreliable, while "a witness recalls more in a [police] statement."
Miller conceded he did not know with any certainty how hard it was raining or if, in Barnes words, it was "drizzle" or a "torrential downpour."
Weight in the bed
Barnes also questioned the state's expert about the differences between a pickup and a car, eliciting the answer that in a pickup, more weight is "concentrated on the front wheels than on the back."
"Isn't a pickup more likely to fishtail?" Barnes asked.
Miller, who said he has driven pickups, replied that an "outward force" would still have to be applied to cause fishtailing.
Isn't it true, Barnes then asked Miller, that in wet or icy conditions, pickup owners often "put weight in the back [bed] for better control?"
"Yes," Miller replied, explaining that "improved handling" will result from "more weight on the rear axle."
Barnes also spent time questioning Miller about the differences among rear-wheel, front-wheel and all-wheel drive, although Miller said he had no knowledge if the Mazda was equipped with anything other than rear-wheel drive.
With regard to road conditions, Miller also conceded under Barnes' questioning that he could only rely on the accident and other reports provided to him by the state to make his determination that there were no serious roadway defects.
Miller also said he was unaware, until they were introduced into evidence by Barnes while Miller sat in court the previous days, that the Maryland Transportation Authority had produced engineering reports during several years leading to the crash that detailed problems with the roadway and recommended installation of a center barrier.
"Are you totally unaware of it [the recommendation]? Barnes asked.
As Miller answered the recommendation had nothing to do with the accident, Barnes directed him back to his personal awareness about it.
"At the time I wrote my report, I wasn't aware that [the recommendation] existed," he replied.
Friday's testimony concluded with an appearance by Keith A. Duerling, a former director of engineering for MDTA, who was called as a plaintiffs' witness.
Duerling, who retired in 2008, testified he was the agency's chief engineer at the time of the accident and during the early years of the lawsuit, which was filed in 2004, when Duerling was in charge of gathering material requested by the plaintiffs' during the case's discovery phase.
Barnes said he also intends to call Duerling's predecessor who was engineering chief when two earlier serious accidents, one fatal, occurred on the bridge that prompted a citizen to ask then-Harford County Executive Jim Harkins to request that MDTA install a median barrier.
Harkins, who testified on the trial's first day, confirmed he wrote a letter in 2000 requesting that MDTA study the feasibility of erecting such a barrier.
Pace said Friday the state had not scheduled any other defense witnesses besides Miller.