Sharon L. Smith, Individually, as the Surviving Spouse of Kevin E. Smith, Deceased, and as the Administrator of the Estate of Kevin E. Smith v. James R. Taylor and On Site Woodwork Corporation
State Court of Cobb County
Civil Action File No. 04-A-8375-7
Liability Facts: Kevin Smith was riding his Motorcycle to work on September 6, 2004 when a box truck turned in front of him causing a collision in Mr. Smith’s lane of travel. Mr. Smith was life flighted to Atlanta Medical Center where he underwent emergency surgery. The internal injuries were too severe and Mr. Smith died on the operating table.
The Defendants admitted that the driver was acting in the course and scope of his employment with On Sight Woodwork Corporation when the incident occurred. However, the Defendants contended that Mr. Smith was operating his motorcycle at the time of the impact without the benefit of his headlight and was traveling at an excessive rate of speed.
Defendant Taylor was charged with failure to yield and vehicular homicide. The vehicular homicide charges were dismissed as a part of the negotiated plea on the failure to yield charge.
Following the collision, Defendant Taylor was required by his employer to submit to a drug screen. The drug screen was administered approximately two hours following the collision. The initial drug screen detected trace amounts of marijuana in Defendant Taylor’s system. His specimen was over-nighted to Lab Corp for more definitive testing. The result of the test performed by Lab Corp concluded that Defendant Taylor was negative for marijuana.
Plaintiffs ruled out false positives through the course of discovery and retained a toxicologist to evaluate the inconsistent test results. After review of the lab values and data provided by Lab Corp, Plaintiffs contended that Defendant Taylor adulterated his specimen by introducing a nitrite masking agent readily available and often used to mask the presence of marijuana.
In his deposition, Defendant Taylor denied using marijuana. His explanation for the failed drug test/presence of marijuana in his system was exposure to second hand smoke approximately a week prior to the collision.
Plaintiff also contended that the Defendant On Site Woodwork attempted to conceal the results of the initial test from the Plaintiffs, by failing to identify or disclose the initial positive test results and instead producing only the subsequent test results indicated Defendant Taylor was negative for marijuana. There was no evidence of impairment at the time of the collision, although this was impeded by Defendants destruction of the evidence.
The Defendants did not admit liability in the case and contended that Mr. Smith’s speed and lack of headlight were contributing factors.
The parties mediated the case in August of 2005 but failed to settle. The parties settled the case after pre-trial motions were filed. Plaintiffs contended that the cap on punitive damages did not apply and sought remedies for the spoliation of evidence.Â Defendants requested that the trial be trifurcated and filed a Motion for Summary Judgment on negligent hiring and retention claims.
Injury: Mr. Smith suffered fatal injuries as a result of the collision.He was 36 years old at the time of his death and was employed by Brinks earning approximately $39,000.00 annually.He was survived by his wife and two (2) year old daughter.
Medical Expenses: $82,587.85
Plaintiffs Experts: Vernon J. Henderson, M.D., F.A.C.S. (E.R. Surgeon), Bill Kluge, P.E. (accident re-constructionist), H. Horton McCurdy, Ph.D. DABFT, FTCB (toxicologist), Francis W. Rushing, PH.D. (Economist), John Brown, Ph.D. (filament expert)
Defendants Experts: Bruce A. Goldberger, Ph.D., DABFT (toxicologist) and David G. Brown, P.E. (accident re-constructionist)
Plaintiffs Attorney: Andrew C. Ausband, Ausband & Farr, Stockbridge, GA
Defendants Attorney: Thomas Brennan, Fain, Major & Brennan, P.C., Atlanta, GA and Christopher E. Penna, Penna & Mendicino, PC, Conyers, GA