Yoder v. Ferguson

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Yoder v. Ferguson

State: Illinois

Court: 1st District Appellate

Docket No: 1-04-3214, 1-04-3230 Con

Case Date: 03/06/2008

Preview:FOURTH DIVISION March 6, 2008

Nos. 1-04-3214 & 1-04-3230 Consolidated

JERELYN YODER, Individually, and JERELYN YODER, as Special Administrator of the Estate of Teagan L. Yoder, Deceased, and JERELYN YODER, as Mother and Next Friend of ) ZACHARY S. YODER, a Minor, Plaintiffs-Appellees, v. JAMES N. FERGUSON, ROMAR TRANSPORTATION SYSTEMS, INC., RO-MAR TRANSPORTATION SYSTEMS, INC., THOMAS I. ALEXANDER, JR., and SINGLE SOURCE TRANSPORTATION COMPANY, Defendants-Appellants and Third-Party Plaintiffs-Appellants; MARY BETH MARSHALL and SCOTT YODER, Defendants and Third Party Defendants-Appellees, (Ruan Leasing Company, Roy John Adler, Berg Grain and Produce, Inc., Rolling Plains, Inc., David Knoll, Kee Transport, Inc., The Midland Grocery Company, Roundy's Inc., Lawrence R. Heaney, and Robert J. Parks, Defendants;

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County, Illinois

No. 02 L 3002 02 L 3003 02 L 3004 02 L 3005

Honorable Daniel M. Locallo, Judge Presiding.

Nos. 1-04-3214 & 1-04-3230 (Cons.) Joseph Rezetko, Defendant and Third-Party Defendant). ) ) ) )

JUSTICE MURPHY delivered the opinion of the court: This cause of action arises from a February 12, 1999, multivehicle accident just west of the Kishwaukee River Bridge (bridge) on westbound Interstate 90 near Rockford, Illinois. Plaintiff Jerelyn Yoder and her family were involved in the accident. Plaintiff's then-husband, defendant Scott Yoder (Scott), was driving their GMC Jimmy with plaintiff sitting in the passenger seat and their two children, Zachary and Teagan, in the backseat. Jerelyn and Scott suffered severe injuries in the accident. Zachary was profoundly disabled as a result of injuries suffered from the accident and Teagan was killed. Jerelyn brought suits individually, as next friend of Zachary, and as administrator of Teagan's estate (collectively, Jerelyn). Scott also brought suit against the same defendants. Among others, Jerelyn named James Ferguson and his employer, Romar Transportation Systems, Inc. (Ferguson); Thomas Alexander and his employer, Single Source Transportation Company (Alexander); David Knoll and his employers, Kee Transport, Inc., and Roundy's, Inc. (Knoll); Mary Beth Marshall; Joseph Rezetko; and Scott as defendants. Scott named the same defendants in his suit and the cases were consolidated for trial. Prior to trial, Jerelyn entered into settlement agreements with Scott and Rezetko which were found to be made in good faith. Ferguson, Alexander, and other defendants filed contribution claims as well. Following an eight-week trial, the jury found that Scott was at least 51% at fault and -2-

Nos. 1-04-3214, 1-04-3230 (Cons.) judgment was entered against him with respect to his claims. However, in Jerelyn's case, the jury found that Scott was not the sole cause of the accident. As a result of Jerelyn's settlement with Scott, he was not included on the verdict forms for the purpose of allocating fault and the jury entered a verdict for Jerelyn that totaled $38.3 million. The fault allocation was computed among Ferguson, Alexander, Knoll and Marshall. These consolidated appeals followed.1 Ferguson argues: (1) the trial court erred by excluding the settling defendants from the jury fault allocation forms; (2) the exclusion of settling defendants pursuant to section 2-1117 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)) violated due process and equal protection; (3) the jury's finding in Scott Yoder's case that he was 51% or more at fault in the accident is res judicata in this case; (4) the trial court erred in redacting a portion of Jerelyn's statement to a treating paramedic; (5) the trial court failed to properly instruct the jury, and alternatively, and (6) the trial court erred in calculating setoff amounts with respect to Marshall's settlement. Alexander adopts Ferguson's arguments above, except for the equal protection and due process argument, and advances additional arguments. Alexander asserts: (1) the trial court erred in denying his motion for judgment notwithstanding the verdict; (2) the trial court abused its discretion in finding that Jerelyn's settlements with Scott and Rezetko were in good faith; (3) the

1

This case was ready for review on May 12, 2006. Following recusal by the assigned

justice, the case was reassigned to this panel on September 6, 2007. On November 7, 2007, we set the case for oral argument on January 17, 2008. -3-

Nos. 1-04-3214, 1-04-3230 (Cons.) trial court erred in not allowing testimony of Alexander with respect to the speed of the Yoder vehicle; (4) the trial court erred in admitting opinion testimony not disclosed prior to trial; and (5) that the proceedings were tainted by juror misconduct. For the following reasons, we affirm in part and reverse in part. I. BACKGROUND A. Pretrial Motions Prior to trial, numerous motions in limine were filed. At issue on appeal are three of Jerelyn's pretrial motions and one of Alexander's granted by the trial court. Motion in limine number 11 sought to bar any testimony or opinions on the speed of the Yoder vehicle based on physical damage to the vehicle sustained in the crash. In motion in limine number 14, Jerelyn sought to exclude any reference to Jerelyn's alleged postaccident statement to paramedic James Richmond that she "told that son-of-a-bitch to slow down." Finally, following her settlement with Scott, in her trial brief, Jerelyn moved in limine to exclude parties that had settled in good faith from the fault allocation verdict forms. In Alexander's motion in limine number 5, he moved to bar the testimony of expert Dr. John Wiechel, who completed a reconstruction of the accident and formulas ascertaining the braking coefficient and speed of various vehicles involved in the accident. Wiechel admitted during his deposition that several conclusions regarding Alexander were based on two hypotheticals and were entirely speculative. The trial court granted Alexander's motion and barred Wiechel from testifying to any opinions regarding Alexander that were based on speculation. -4-

Nos. 1-04-3214, 1-04-3230 (Cons.)

B. Pretrial Settlements Scott settled Jerelyn's claims against him for the remainder of his policy limit of $500,000, or $469,000 after payment of his medical payment limit of $15,000 to Jerelyn and other settlements not at issue. Following Jerelyn's motion to exclude settling parties from the allocation forms, Rezetko settled with Jerelyn for $300,000. Over defendants' objection, the trial court found each settlement was fair and reasonable, constituting good-faith settlements pursuant to the terms and conditions of the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2004)). Accordingly, the actions pending against Scott and Rezetko were dismissed with prejudice. C. Trial Testimony and Evidence 1. Mary Beth Marshall and Mary Ann Miller Mary Beth Marshall testified that on the day of the accident she and her coworker, Mary Ann Miller, were traveling westbound on Interstate 90 to her company's office in Rockford, Illinois. Marshall testified that it had snowed lightly, but after she passed the Belvidere toll plaza it began snowing heavily. Marshall testified that as she approached the bridge, the weather worsened to whiteout conditions - the worst conditions she had ever driven through. Marshall testified that she was in the right-hand lane and slowed down to approximately 20 to 30 miles per hour because of poor visibility. As she approached the bridge, she was approximately one car length behind a tractor-trailer which began to fishtail. She did not lose control of her vehicle or lose traction as she continued to slow down; however, she felt that there -5-

Nos. 1-04-3214, 1-04-3230 (Cons.) was black ice on the bridge. When the truck regained control, Marshall moved slowly forward in the right lane and saw Rezetko's car in her rearview mirror prior to him rear-ending her vehicle. Marshall testified that she and Rezetko slowly came to a stop approximately 25 feet apart in the right lane of traffic. Marshall next saw a truck slowly glide to a stop with its trailer crossing the Interstate approximately six car lengths from Rezetko's car. At this point, Marshall and Rezetko drove up to the next exit and got off the Interstate to exchange information. Marshall testified that her passenger had called the police before they drove up to the exit, but that she did not personally call the police. The police called Marshall three days later to discuss the accident. Miller's testimony was consistent with Marshall's. 2. Joseph Rezetko Rezetko also testified that the weather turned dramatically worse after he passed the Belvidere oasis and approached the bridge. Rezetko testified that it became very windy and a light rain had turned into "like an ice" and then heavy snow. From Belvidere to the bridge, Rezetko slowed his vehicle from about 55 miles per hour to 35 to 40 miles per hour. Rezetko testified that the weather continued to deteriorate and he slowed further to about 15 to 20 miles per hour just before he reached the bridge. Rezetko testified that he was driving in the right lane behind Marshall, who did not have her lights on. At the bridge, the weather worsened and Rezetko lost sight of Marshall's car until he saw her brake lights after he passed the bridge and realized that she was stopped. Rezetko pumped his brakes and then pushed the brake pedal hard but was unable to stop before rearending Marshall's vehicle. The two cars remained in the right lane and two cars passed in the left -6-

Nos. 1-04-3214, 1-04-3230 (Cons.) lane before Rezetko saw Ferguson's tractor-trailer slowly jackknife, coming to rest entirely blocking both lanes of the Interstate. Rezetko then felt it was safe to exit his vehicle and check if Marshall was injured because the truck had completely blocked the Interstate. The two agreed to drive to the next exit and meet at a gas station, where they exchanged information. Rezetko testified that he called the police later that day and was referred to the Tollway Authority. He also called the Tollway Authority and left a message. Five days after the accident, Rezetko received a call from the Tollway Authority and was interviewed about the accident. Rezetko was cross-examined regarding the police report of his accident. He admitted that there was no reference to any vehicles other than Marshall's and no mention of a jackknifed tractor-trailer. Rezetko stated that he was familiar with that stretch of the Interstate and he knew that the accident occurred just past the bridge. Rezetko admitted that the police report located the accident approximately 45 miles from the bridge, but he denied giving the police any misinformation. 3. James Ferguson On the day of the accident, Ferguson drove a tractor-trailer truck for defendant Romar Transportation Services, which he had worked for since October 1992. Ferguson has been driving semi tractor-trailer trucks since 1984 when he received his chauffeur's license. When the law changed in 1986, Ferguson took the test for his commercial driver's license (CDL) and was familiar with the driving guidance provided by the study guide for that exam and the federal motor carrier safety regulations. Ferguson estimated that he had driven over the bridge approximately -7-

Nos. 1-04-3214, 1-04-3230 (Cons.) 150 times in the one to two years he had been assigned the route from the south side of Chicago to Rockford along Interstate 90. He had never experienced icy conditions on the bridge, even in worse weather conditions. Ferguson testified consistently to the above weather conditions of that day. After passing the Belvidere Oasis, Ferguson noticed that the snowfall became heavier and visibility was reduced, so he slowed his truck from 50 to 40 miles per hour. As he approached the bridge, about five miles west of the oasis, the road surface was largely covered or obstructed by snow. However, he did not observe any problems with the road conditions or any other visual cues of other cars losing control. At some point after the oasis, two cars passed Ferguson in the left lane at approximately 60 miles per hour. Before reaching the bridge, Ferguson saw what he believed were the same vehicles - a red vehicle and a white vehicle - facing north, across the highway with the passenger sides facing Ferguson. Ferguson continued to reduce speed to approximately 15 to 20 miles per hour by taking his foot off the accelerator. While on the bridge, Ferguson realized that the red and white cars in front of him were blocking both lanes and he pumped the brakes before applying more pressure. Ferguson testified that when his truck failed to slow as expected, he directed it to the right shoulder along the guardrail, utilizing the guardrail for friction to help stop the truck. About this time, Ferguson realized that the bridge was "like an ice skating rink." Ferguson testified that he lost control of the truck after the bridge because of the guardrail and the ice and his vehicle jackknifed. He came to a stop, short of the cars blocking the Interstate. -8-

Nos. 1-04-3214, 1-04-3230 (Cons.) Ferguson did not turn on his hazard lights at any time. When he got out of his truck, Ferguson observed that the area by the bridge was icy. He also observed that the two vehicles that were blocking the highway had left the scene. Ferguson testified that, but for the presence of those vehicles, he would have maintained control and continued safely toward Rockford, Illinois. 4. Roy John Alder Roy John Alder testified that he obtained his CDL in 1992 and has been driving tractortrailers since that time. On the day of the accident, Alder was driving a truck for Berg Grain and Produce westbound on Interstate 90 to Darien, Wisconsin. Alder also testified consistently to the above witnesses regarding the changing weather conditions. Alder testified that he lowered his speed to 40 to 45 miles per hour as he approached the bridge because of the weather. Alder assumed that the bridge was icy because the surface appeared shiny. After he got to the bridge, Alder slowed down immediately because he saw the Ferguson truck completely blocking both lanes of the Interstate. Alder testified that he did not have ABS brakes, so he slowly pumped his brakes and lowered his gears to come to a complete stop in the left-hand lane. After he stopped, Alder checked his rearview mirror to see another truck approaching, so he moved his truck as quickly and safely as he could onto the shoulder and then the median. Alder testified that he was able to move his truck about 250 feet into the median, ending up stuck in the mud, west of Ferguson's truck. Alder testified that, after stopping, he heard an impact. 5. Thomas Alexander The next vehicle to enter the scene was a tractor-trailer truck driven by Alexander, who also held a CDL. Prior to his testimony, the court conducted voir dire of Alexander outside the -9-

Nos. 1-04-3214, 1-04-3230 (Cons.) presence of the jury to determine the basis of his opinion on the speed of Yoder's vehicle and whether that testimony would be barred pursuant to the trial court's decision on Jerelyn's motion in limine. Alexander testified that when he came to a complete stop he looked in his rearview mirror and saw Yoder's vehicle approach from approximately two-thirds of the bridge away. Alexander turned around to see Yoder's vehicle careen off a vehicle in the right-hand lane, come back across the Interstate and come to rest crashing under a tractor-trailer. Alexander testified that he estimated the speed of the Yoder vehicle as it came across the bridge to be 60 to 65 miles per hour. Alexander based his estimate on the erratic way it came through traffic for the two to three seconds he witnessed the vehicle and the distance the vehicle ended up under the bumper of the tractor-trailer after impact. Alexander admitted that he testified at his deposition that the primary factor in his determination was the extent of damage to the Yoder vehicle. The trial court held that, based on Alexander's experience driving, he could testify to his opinion on the speed of the Yoder vehicle. Alexander was not to opine as to the speed of the car based on the damage from the collision. However, the trial court understood that Jerelyn would confront Alexander with his deposition testimony that the crash and damage were his primary basis for judging the speed. The trial court stated that it would consider a nonpattern jury instruction about factors to consider in judging speed, but would not admonish the jury before Alexander's testimony. Alexander testified before the jury that on the day of the accident he was a driver for defendant Single Source Transportation hauling palletized coil steel. He testified that he was -10-

Nos. 1-04-3214, 1-04-3230 (Cons.) aware of the federal motor carrier safety regulations. Alexander had his CDL and had been driving for approximately 14 years. In fact, Alexander had been driving the same route on Interstate 90 between Chicago, Illinois, and Monroe, Wisconsin, for the previous 14 months. Alexander testified consistently to the aforementioned weather conditions and pattern. About two miles east of the bridge, Alexander believed that he might be driving into a whiteout because visibility had quickly dropped to about 70 to 80 feet. Alexander testified that he considered a whiteout to be a reduction of visibility to 50 to 100 feet. Although Alexander agreed that the proper course of action in a whiteout is to pull off the highway whenever it is reasonably safe, he continued to drive west despite having the option to pull over. As he approached the bridge, Alexander understood that it might be frozen and icy but continued driving at 40 to 45 miles per hour. As he reached the bridge, Alder's truck approached alongside Alexander in the left lane and passed him. Alexander testified that immediately after Alder passed him, his visibility was reduced to 15 to 30 feet because Alder's truck had kicked up snow from the highway as it passed. Alexander next saw the brake lights on Alder's truck light up and Alder veered to the left of the Interstate, onto the left shoulder and then to the median. Alexander testified that at this time he saw Ferguson's truck ahead blocking both lanes of traffic and the right shoulder. Alexander immediately began to pump his brakes to try and slow down without losing control of his truck on the icy bridge. He first veered right, but when he realized he could not drive around Ferguson on the shoulder to avoid impact, he pushed hard on his brake pedal, locking up the brakes, and veered left to avoid a major collision. Alexander slid into Ferguson's truck, coming to rest diagonally, blocking the right shoulder and the right lane -11-

Nos. 1-04-3214, 1-04-3230 (Cons.) and partially obstructing the left lane. Alexander then turned on his hazard lights. Alexander stated that he felt he was driving appropriately for the conditions approaching the bridge at 40 miles per hour. However, he admitted that, by those actions in those weather conditions, he was not exhibiting extreme caution as required by the federal motor carrier safety regulations under these type of road conditions. Alexander also admitted that the drivers following him had to respond to the condition he created. Alexander testified to the progression of vehicles after he stopped. When his truck came to rest, the snow had tapered to just flurries and visibility extended beyond the entire bridge. Alexander testified that Fischer in the Gwinner Oil truck came to a stop on the right shoulder and several cars came to either controlled stops or minor impacts until the Yoder vehicle approached. Alexander testified that he saw the Yoder vehicle approaching from about two-thirds the distance of the bridge, or 300 feet, at an "extremely high rate of speed" at or around 65 miles per hour. The Yoder vehicle approached erratically, bouncing off several cars before the major collision with Knoll's trailer. On cross-examination, Alexander admitted that he testified in his deposition that he principally based his estimate of the Yoder vehicle's speed on the extent of damage to the vehicle. 6. Lawrence Harry Fischer Lawrence Harry Fischer testified that on the day of the accident he was driving a truck for Gwinner Oil Company west on Interstate 90, heading toward Bloomington, Illinois. As he progressed toward the bridge past the Belvidere toll plaza, the road conditions worsened to a visibility of about 6 or 7 feet, so he slowed down to 35 to 40 miles per hour. As Fischer -12-

Nos. 1-04-3214, 1-04-3230 (Cons.) approached the bridge, he saw brake lights and began to slow down and move to the right shoulder. However, he hit a limousine that spun around and ended up nose to nose in the shoulder. The nose of Fischer's truck remained partly in the right lane of traffic. As he came to a stop, Fischer saw the Roundy's truck driven by Knoll slow and pull over into the left median. Fischer called his employer to report the accident. While on the phone, Fischer heard a sound like a car skidding on the road and then an impact. He looked to the left to see that Scott had crashed into Knoll's truck. After this, Fischer believed that one car hit his trailer and two additional cars hit the front end of his cab. 7. David Knoll David Knoll testified that on the day of the accident he was driving a tractor-trailer for Roundy's, Inc., and Kee Transportation from Indiana to Wisconsin via Interstate 90. Knoll had been driving this route three days a week for several months. Knoll testified that on the day of the accident when he was about a mile east of the bridge, his visibility was reduced to about 500 feet and he was driving in the right-hand lane at about 50 miles per hour. Knoll stated that he believed the visibility and traction were sufficient at this time and did not warrant pulling over onto the shoulder before the bridge. As he reached the bridge, visibility was reduced to only about 300 feet and dropped to about 150 feet as he reached the middle of the bridge. At this point, Knoll reduced his speed to about 47 or 48 miles per hour. At the middle of the bridge, Knoll observed a flatbed trailer on the right shoulder so, as a courtesy, he checked his rearview and side mirrors and made a gradual move to the left lane. Knoll testified that visibility was reduced to about 100 feet at this time and when he got -13-

Nos. 1-04-3214, 1-04-3230 (Cons.) approximately 100 feet from the end of the bridge he saw that Alexander's and Ferguson's trucks were obstructing the roadway and that Alder was in the left lane and shoulder. Knoll was traveling less than 45 miles per hour and quickly reduced speed. Knoll saw an opening behind and to the left of Alder and tried to pull off the road onto the median. Alder began to pull onto the median at this time and Knoll followed until his tires got stuck in the mud and his truck stalled. However, on cross-examination, Knoll admitted that his truck's engine log registered revolutions per minute after he came to a stop, indicating that the truck did not stall. In any event, Knoll came to a complete stop partly in the median, with his trailer remaining partly in the left lane. Knoll did not turn on his hazard lights but maintained pressure on his brake pedal, leaving his brake lights activated for the final 17 seconds his truck was traveling. Approximately five seconds after coming to a complete stop, Knoll testified that he felt an impact to the rear of his vehicle. Approximately three seconds later, Knoll felt a second impact. Knoll exited his truck and saw the Yoder vehicle under his trailer and heard moaning and groaning sounds coming from inside the vehicle. Knoll testified that, though the road surface was wet and there was ice in the rumble strips on the shoulder, he had no problem making the maneuver into the left lane or slowing to a stop. 8. Amyrose Riedel Amyrose Riedel testified that she and her family were traveling in their 1994 Jeep Grand Cherokee to Madison, Wisconsin, on the day of the accident. After passing the Belvidere toll plaza, Riedel reduced her speed from approximately 65 miles per hour to 30 to 35 miles per hour because she could see that the weather and road conditions were worsening. Eventually, Riedel -14-

Nos. 1-04-3214, 1-04-3230 (Cons.) attempted to move from the left lane into the right lane because she knew there was an exit in the area and wanted to get off the highway because she felt unsafe due to the weather. However, at this time, Riedel saw Knoll's truck with its lights on going from right to left, so she started to return to the left lane. At this time, although it did not have its lights engaged, Riedel saw Alexander's truck in the left lane fishtailing from left to right very close to her. Riedel testified that she turned her steering wheel to the left to avoid the truck. In response, her husband grabbed the steering wheel and pulled it to the right because he was concerned about the bridge. Riedel testified that they collided like a "pinball," twice in immediate succession off of Knoll's truck and then they hit Alexander. Riedel testified that when they were colliding with the trucks, she heard an extremely loud sound that she described as torn metal that she did not know where it came from. Approximately 30 seconds after coming to rest against Alexander's truck, a pickup truck crashed into her car. Riedel opined that if the lights for Alexander's truck had been engaged, she would have had a better opportunity to avoid the collisions. 9. Jerelyn and Scott Yoder Both Jerelyn and Scott Yoder testified that on the day of the accident they were driving westbound on Interstate 90 to Door County, Wisconsin. Both witnesses testified that when they started their trip the weather was nice. Both witnesses also testified that after it began to snow and it began to get cloudy, they have no memory of anything until waking up after the accident. 10. Delores Vole Delores Vole testified that on the day of the accident she was driving in her Pontiac Grand Prix on Interstate 90 to Rockton, Illinois, on business. After Vole passed the Belvidere toll plaza, -15-

Nos. 1-04-3214, 1-04-3230 (Cons.) she noticed that the Yoder vehicle was approximately three car lengths ahead of her and continued following them from that distance. Vole testified that as she approached the bridge she slowed down to approximately 30 miles per hour because visibility had deteriorated significantly. Vole testified that the Yoder vehicle slowed down concurrently. Although it was snowing heavily, Vole testified that she did not notice any loss in traction and felt that the road conditions were safe going 30 miles per hour. Vole again saw the Yoder vehicle's brake lights appear and then a tractor-trailer slid toward her from the right lane. Vole testified that her next recollection is waking up in the hospital. Vole has no recollection of being involved in a collision. 11. Dr. Lawrence Heaney Dr. Lawrence Heaney testified that on the morning of the accident he was traveling westbound on Interstate 90 to Madison, Wisconsin. After Heaney passed the Belvidere toll plaza it began snowing heavily, creating varied road conditions that occasionally lapsed to slippery from the snow and slush. However, Heaney felt that he remained in control by simply varying his speed between 55 and 30 miles per hour. During this time, the speed of other cars varied, with several cars passing him at high rates of speed. Approximately four or five miles past the toll plaza, Heaney saw heavy snow ahead and took his foot off the gas. Although Heaney expected to encounter conditions similar to those he already had driven through, he did not know he was approaching the start of the bridge and he continued driving 45 miles per hour. Suddenly, there was a very abrupt change in the weather and road conditions, much worse than anything he had seen that day. At that point, Heaney hit what he called a "wall -16-

Nos. 1-04-3214, 1-04-3230 (Cons.) of snow" and visibility was reduced to 50 to 100 feet. Heaney then saw "dark shadows" ahead of him and he began to brake lightly. Heaney began to brake harder when he noticed that Fischer's flatbed trailer was in the right shoulder. Heaney next observed that Fischer's cab was projecting into the right lane and he slammed on his brakes but was surprised it was "very, very slick" and his braking and attempt to move the vehicle to the left had "virtually no effect." Heaney attempted to pump his brakes to slow down, but he was unable to avoid hitting Fischer's front tire. Heaney testified that in quick succession, he was pushed to the left and bounced off the Yoder vehicle's side. Heaney continued to try and brake, but then hit the Reidel car "solid" at 35 to 40 miles per hour and stopped. Heaney waited in his vehicle for a moment, heard "another thump or two," but was not involved in another collision and exited his vehicle. 12. Dr. Walter Scott Jellish Dr. Walter Scott Jellish testified that on the morning of the accident he was in the front passenger seat with his wife driving west on Interstate 90 to the Wisconsin Dells. Jellish, an anaesthesiologist, had spent the prior night on-call and was sleeping intermittently until his wife woke him up reporting the heavy snowfall. Jellish testified that visibility was "almost zero" and told his wife to stop the car when he saw brake lights in front of them. His wife stopped the car several feet behind the car in front of them. Jellish waited in the car for four to five minutes and talked with his partner, who had been driving behind them, before the two men went to assist paramedics on the scene. 13. Lance Powell Master Sergeant Lance Powell of the Illinois State Police testified to his course work and -17-

Nos. 1-04-3214, 1-04-3230 (Cons.) qualifications as an accident investigator and reconstructionist. Powell testified that on the date of the accident, he responded to the scene at about 12:15 p.m., approximately 1.5 hours after the accident occurred. When he arrived there was no snow on the road, only the shoulder and grass and dirt areas still had snow cover. Several cars had been moved from their final resting places by rescue personnel while rendering aid to the victims. Powell testified that all vehicles involved in the accident were located west of the bridge and positioned consistently with the above descriptions. Powell stated that it did not appear that the Knoll truck had gotten stuck in the mud as there was no earth piled around the tires, but that it had rolled into place. Powell opined that Alexander could have maneuvered his truck to the right shoulder and off the roadway, beyond the guardrail and before Ferguson's truck. Powell testified that he had five years' experience driving tractor-trailer trucks in Illinois from 1981 to 1986. He stated that he based his opinion on the above maneuver for Alexander based on his experience, photographs, his viewing of the roadway and Alexander's final position. Powell further opined that, if Alexander had accomplished this, there would have been room on the right shoulder for other cars to maneuver. On cross-examination, Powell admitted that he did not know the precise distance between the guardrail and Ferguson's trailer. Furthermore, he admitted that there were concerns in making the suggested maneuver, namely, getting stuck in the soft surface of the ditch and simply going into the ditch and not being able to get up and out of the ditch. Upon further questioning, Powell also admitted that, depending on what, and how, the truck was loaded, driving down into the ditch could allow the payload to shift and rupture the trailer. -18-

Nos. 1-04-3214, 1-04-3230 (Cons.) 14. Ronald Bowes and James Anthony Richmond Ronald Bowes and James Anthony Richmond each testified as treating paramedics. Bowes testified that he drove to the scene that day, describing the conditions as very slippery and stating that it took seven minutes to arrive, almost twice the typical time for that location. As described above, Bowes assisted in removing Zachary from the Yoder vehicle and attended to him in the ambulance with Jellish until Zachary was transported via helicopter from the scene. Before Richmond testified, the court reiterated that the term "son-of-a-bitch" was not to be used. Richmond testified that he was in the first ambulance on the scene and mostly conducted triage that day, organizing and directing the rescue efforts. Richmond stated that he did not recall rendering Jerelyn any medical aid. However, he did render emotional assistance and did talk with Jerelyn. After having his recollection refreshed, Richmond testified that he asked Jerelyn if she had been knocked out and she responded that she had not. He further testified that Jerelyn told him that she "told him to slow down." Richmond stated that this surprised him because he had never heard that before at the scene of an accident. 15. Robert Coulter Robert Coulter testified that he is an expert trucking accident consultant and reconstructionist with years of experience both driving tractor-trailers more than 900,000 miles and as an instructor of a tractor-trailer driving school. Coulter testified that in 1986, the United States Department of Transportation codified standardized CDL written and skills' standards for the states to follow in licensing drivers. See 49 C.F.R. pt. 383 (2007). Coulter noted that the stated purpose of the regulations was to reduce crashes, injuries, and fatalities involving large -19-

Nos. 1-04-3214, 1-04-3230 (Cons.) trucks and buses. Coulter testified that the regulations require a CDL holder to have the knowledge and skills of hazard perception to understand the hazards caused by driving in certain conditions and among other vehicles. In addition, drivers must have the skill to make emergency maneuvers to avoid and recover from any hazards. Coulter stated that section 392.14 (49 C.F.R.

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