Monday, October 10, 2016

Motorcyclist wins verdict over school-bus company

A man who alleged injuries after a bus backed into his motorcycle will receive nearly a quarter million dollars in damages.  “I think that the jury felt that the testimony of the plaintiff’s treating doctors was credible and returned a verdict accordingly,” said Jason Roth of Copley Roth & Davies.  

Roth represented plaintiff Michael Henry in his suit regarding the 2009 incident in Cass County in which a full-sized school bus reversed after coming to a halt at a four-way stop, apparently to give other traffic room to turn. However, the 40-foot vehicle collided with Henry’s Harley-Davidson which had come to a stop behind it. The plaintiff fell off his bike and rolled, alleging neck and shoulder issues.

Both liability and the cause of the injuries were disputed in the matter, Roth said. Defendant Apple School Bus contended that Henry had stopped in a blind spot, which was out-of-range of the larger vehicle’s mirrors, he said.  However, the plaintiff argued this was irrelevant since the bus driver had a duty to make sure the way was clear before backing up.  “Who has a better understanding of the blind spots on a school bus, the school bus driver or a motorcycle rider?” he asked.

He said that the defense also argued that the bus moved slowly and Henry could have avoided contact with it, however Roth countered that his client had neither the time nor the space to do so.  “We always thought that was nonsense,” he said. “It’s a two-lane road. He’d basically be pulling into oncoming traffic on the left side of the bus. If he went to the right, he’d be going into a ditch.”
The injuries themselves were also an issue. Henry sought no medical assistance at the scene but in the days following the incident visited his primary care physician who diagnosed him with a cervical strain, Roth said. A regimen of conservative treatment, including physical therapy, followed. However, nearly two years passed before another physician diagnosed cervical dystonia and ordered regular injections of Botox.

Roth said the defense argued that Henry had a 25-year history of neck problems and that his involvement in a subsequent accident, in which a tree fell on him causing a punctured lung and numerous broken bones could be responsible for his troubles.  “The medical records certainly suggested he had a preexisting condition in his neck but he hadn’t sought any specific medical treatment for it,” said Roth. “He certainly had not ever been in such a state where he required Botox injections every four months.”

The jury eventually awarded $275,000 in damages but reduced the figure by 10 percent based on allocation of fault.

Roth listed Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker as representing the defense in the matter. Neither returned a request for comment.

Verdict: $275,000 (reduced to $247,500 due to allocation of fault)
Motor vehicle collision
Venue: Cass County Circuit Court
Case Number/Date: 12CA-CV02352/July 21, 2016
Judge: William B. Collins
Plaintiff’s Experts: Dr. Todd Fristo, Independence, (primary care physician); Dr. Steven Simon, Overland Park, Kansas, (pain management)
Defendant’s Expert: Mark Ezra, St. Louis, (motorcycle operation)
Allocation of Fault: 90 percent to defendant/10 percent to plaintiff
Last Pretrial Demand: $695,000
Last Pretrial Offer: $50,000
Insurer: National Interstate
Caption: Michael v. Apple Bus Company; Sara James
Plaintiff’s Attorneys: Jason P. Roth and Brandan Davies of Copley, Roth & Davies, Overland Park, Kansas

Defendant’s Attorneys: Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker, Overland Park, Kansas

Motorcyclist wins verdict over school-bus company

A man who alleged injuries after a bus backed into his motorcycle will receive nearly a quarter million dollars in damages.  “I think that the jury felt that the testimony of the plaintiff’s treating doctors was credible and returned a verdict accordingly,” said Jason Roth of Copley Roth & Davies.
Roth represented plaintiff Michael Henry in his suit regarding the 2009 incident in Cass County in which a full-sized school bus reversed after coming to a halt at a four-way stop, apparently to give other traffic room to turn. However, the 40-foot vehicle collided with Henry’s Harley-Davidson which had come to a stop behind it. The plaintiff fell off his bike and rolled, alleging neck and shoulder issues.

Both liability and the cause of the injuries were disputed in the matter, Roth said. Defendant Apple School Bus contended that Henry had stopped in a blind spot, which was out-of-range of the larger vehicle’s mirrors, he said.  However, the plaintiff argued this was irrelevant since the bus driver had a duty to make sure the way was clear before backing up.  “Who has a better understanding of the blind spots on a school bus, the school bus driver or a motorcycle rider?” he asked.

He said that the defense also argued that the bus moved slowly and Henry could have avoided contact with it, however Roth countered that his client had neither the time nor the space to do so.  “We always thought that was nonsense,” he said. “It’s a two-lane road. He’d basically be pulling into oncoming traffic on the left side of the bus. If he went to the right, he’d be going into a ditch.”
The injuries themselves were also an issue. Henry sought no medical assistance at the scene but in the days following the incident visited his primary care physician who diagnosed him with a cervical strain, Roth said. A regimen of conservative treatment, including physical therapy, followed. However, nearly two years passed before another physician diagnosed cervical dystonia and ordered regular injections of Botox.

Roth said the defense argued that Henry had a 25-year history of neck problems and that his involvement in a subsequent accident, in which a tree fell on him causing a punctured lung and numerous broken bones could be responsible for his troubles.  “The medical records certainly suggested he had a preexisting condition in his neck but he hadn’t sought any specific medical treatment for it,” said Roth. “He certainly had not ever been in such a state where he required Botox injections every four months.”

The jury eventually awarded $275,000 in damages but reduced the figure by 10 percent based on allocation of fault.

Roth listed Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker as representing the defense in the matter. Neither returned a request for comment.

Verdict: $275,000 (reduced to $247,500 due to allocation of fault)
Motor vehicle collision
Venue: Cass County Circuit Court
Case Number/Date: 12CA-CV02352/July 21, 2016
Judge: William B. Collins
Plaintiff’s Experts: Dr. Todd Fristo, Independence, (primary care physician); Dr. Steven Simon, Overland Park, Kansas, (pain management)
Defendant’s Expert: Mark Ezra, St. Louis, (motorcycle operation)
Allocation of Fault: 90 percent to defendant/10 percent to plaintiff
Last Pretrial Demand: $695,000
Last Pretrial Offer: $50,000
Insurer: National Interstate
Caption: Michael v. Apple Bus Company; Sara James
Plaintiff’s Attorneys: Jason P. Roth and Brandan Davies of Copley, Roth & Davies, Overland Park, Kansas

Defendant’s Attorneys: Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker, Overland Park, Kansas

Motorcyclist wins verdict over school-bus company

A man who alleged injuries after a bus backed into his motorcycle will receive nearly a quarter million dollars in damages.  “I think that the jury felt that the testimony of the plaintiff’s treating doctors was credible and returned a verdict accordingly,” said Jason Roth of Copley Roth & Davies.
Roth represented plaintiff Michael Henry in his suit regarding the 2009 incident in Cass County in which a full-sized school bus reversed after coming to a halt at a four-way stop, apparently to give other traffic room to turn. However, the 40-foot vehicle collided with Henry’s Harley-Davidson which had come to a stop behind it. The plaintiff fell off his bike and rolled, alleging neck and shoulder issues.

Both liability and the cause of the injuries were disputed in the matter, Roth said. Defendant Apple School Bus contended that Henry had stopped in a blind spot, which was out-of-range of the larger vehicle’s mirrors, he said.  However, the plaintiff argued this was irrelevant since the bus driver had a duty to make sure the way was clear before backing up.  “Who has a better understanding of the blind spots on a school bus, the school bus driver or a motorcycle rider?” he asked.

He said that the defense also argued that the bus moved slowly and Henry could have avoided contact with it, however Roth countered that his client had neither the time nor the space to do so.  “We always thought that was nonsense,” he said. “It’s a two-lane road. He’d basically be pulling into oncoming traffic on the left side of the bus. If he went to the right, he’d be going into a ditch.”
The injuries themselves were also an issue. Henry sought no medical assistance at the scene but in the days following the incident visited his primary care physician who diagnosed him with a cervical strain, Roth said. A regimen of conservative treatment, including physical therapy, followed. However, nearly two years passed before another physician diagnosed cervical dystonia and ordered regular injections of Botox.

Roth said the defense argued that Henry had a 25-year history of neck problems and that his involvement in a subsequent accident, in which a tree fell on him causing a punctured lung and numerous broken bones could be responsible for his troubles.  “The medical records certainly suggested he had a preexisting condition in his neck but he hadn’t sought any specific medical treatment for it,” said Roth. “He certainly had not ever been in such a state where he required Botox injections every four months.”

The jury eventually awarded $275,000 in damages but reduced the figure by 10 percent based on allocation of fault.

Roth listed Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker as representing the defense in the matter. Neither returned a request for comment.

Verdict: $275,000 (reduced to $247,500 due to allocation of fault)
Motor vehicle collision
Venue: Cass County Circuit Court
Case Number/Date: 12CA-CV02352/July 21, 2016
Judge: William B. Collins
Plaintiff’s Experts: Dr. Todd Fristo, Independence, (primary care physician); Dr. Steven Simon, Overland Park, Kansas, (pain management)
Defendant’s Expert: Mark Ezra, St. Louis, (motorcycle operation)
Allocation of Fault: 90 percent to defendant/10 percent to plaintiff
Last Pretrial Demand: $695,000
Last Pretrial Offer: $50,000
Insurer: National Interstate
Caption: Michael v. Apple Bus Company; Sara James
Plaintiff’s Attorneys: Jason P. Roth and Brandan Davies of Copley, Roth & Davies, Overland Park, Kansas

Defendant’s Attorneys: Michael D. Matteuzzi and Matthew J. Brooker of Matteuzzi & Brooker, Overland Park, Kansas

Monday, April 18, 2016

Are the police allowed to lie to people during an investigation?



Kansas criminal defense lawyer answers common question about police interaction with a person suspected of a crime.  Remember you have a constitutional right to have a lawyer present during questioning.  If you find yourself being questioned by an officer exercise your rights to counsel.

Monday, February 8, 2016

Lawsuit alleges dealership skipped recall work, injured woman settles claim for over $2 million.

A lawsuit filed on behalf of a woman injured in a wreck in Shawnee, Kansas, caused by the unintended acceleration of her car, resulted in a settlement of more than $2 million in an out-of-state court. 

According to plaintiff’s attorney Jason Roth, in March 2013 the plaintiff, then 75, was driving her granddaughter to school when her 2009 Pontiac Vibe accelerated out of control, ran a stop sign and collided nearly head on with another vehicle as plaintiff attempted to gain control of her vehicle. The woman suffered severe injuries in the crash, including loss of her left leg below the knee.

The plaintiff’s Vibe had previously been a rental car. In 2010, that model year of the Vibe — which was manufactured as part of a joint venture between General Motors and Toyota and was essentially the same vehicle as a Toyota Matrix — was the subject of two safety recalls related to the claims of unintended acceleration in Toyota vehicles. The recalls required cutting the accelerator pedal to reduce its length and removing padding around the area of the accelerator to prevent entrapment.
The rental car company took the car to a GM dealer for performance of the recall work. According to Roth, the suit alleged that the dealership never completed the work, even though it prepared paperwork indicating that it had done and been paid for the work.

The dealer returned the Vibe to the rental car company, which continued to use it until selling the car to the plaintiff in August 2011. The rental car company claimed it was not aware that the recall work on the Vibe had not been completed.

The plaintiff claimed the dealer was negligent and responsible for plaintiff’s injuries because of its failure to complete the recall work. The defendant, however, claimed the unperformed recall work had nothing to do with the cause of the crash and that the cause of the crash was pedal misapplication by the plaintiff. The investigating officer’s report said “the cause of the crash appeared to be operator error” by the plaintiff, according to Roth.

After litigating the matter for more than a year, the case settled for $2.075 million following two days of mediation. Although the accident occurred in Kansas, the case was handled in the state where the GM dealership was based. Roth said he couldn’t identify the location. Roth provided a copy of the settlement agreement to confirm the amount.

Out-of-state
$2.075 million settlement
Motor vehicle collision

Venue: Confidential
Case Number/Date: Confidential/April 20, 2015
Caption: Confidential
Plaintiff’s Attorneys: Jason P. Roth, Copley Roth & Wilson, Overland Park, Kansas; Chad C. Lucas, Kuhlman & Lucas, Kansas City

Defendant’s Attorney: Confidential

Monday, January 25, 2016

When does a traffic stop go too far? Rodriguez v. United States 135 S.Ct.1609

You are pulled over on the side of the road.  Your face is flush, your palms are sweaty, you're terrified.  You made a mistake and you have drugs in your car.  The officer looks you over and starts to write you a citation.  Maybe its for speeding or failing to signal a lane change but at this point you don't care.  "Just give me the ticket and let me go."  You try to keep your calm but you're scared to death, the officer issues you a ticket or maybe even a warning.

Then he starts to get inquisitive.  Asks you where you are going?  Have you been in this area before? He has a hunch..  He may even ask you if you have drugs in the car or if he can search?  You're wondering, "I thought you just pulled me over for speeding...What's with all the questions?"  Why is this guy holding you up?  It seems you were free to go but now you're not.

He's illegally detaining you and the Supreme Court agrees.  If you find yourself in this situation you need to seek the advice of a criminal defense attorney.  The difference between a felony conviction and a outright dismissal of all charges is often a motion just like the one that was granted below.




­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­IN THE DISTRICT COURT OF (Omitted) COUNTY, KANSAS
CRIMINAL DIVISION
_________________________________
STATE OF KANSAS                               
                                                                       
                        Plaintiff,                            
            vs.                                                  
                                                                                  Case # Omitted
(Omitted)                                                    
                                                                                   Hon. Omitted
                        Defendant.                        
_________________________________
                                                               
MOTION TO SUPPRESS

COMES NOW, Brandan Davies as council of record for the defendant (Omitted) in the District Court of (Omitted) County Kansas as to the charge in the aforementioned case, and hereby moves to suppress any and all evidence obtained as a result of an unlawful detention and subsequent unlawful search and seizure of defendant’s property on (Omitted), 2015, in (Omitted) County, Kansas.
In support of said Motion, defendant alleges and states as follows:

FACTUAL STATEMENT

            On (Omitted) at approximately 10:00 a.m. the defendant was traveling on his way to Lawrence in the area of Interstate 35 and Marshall Road in (Omitted).   The defendant was approached by a (Omitted) County Sheriff’s vehicle based on the allegation that defendant had failed to signal.  The (Omitted) County Sherriff’s office was conducting a drug check lane ruse in that same area.  
The officer stopped the vehicle and the officer ran routine checks on the defendant’s vehicle and made contact with the defendant.  The officer questioned the defendant and had the defendant exit his vehicle and sit in the passenger seat of the officer’s patrol vehicle.  The officer wrote a warning ticket to the defendant and continued to question him. 
During the time period when the officer was writing the warning ticket the officer noted that the defendant had “a very dry mouth, his voice was shaky, a vein in the side of his neck was pulsing, defendant was extremely nervous and was possibly involved in criminal activity.”   The officer told the defendant he was free to go and let the defendant exit the patrol vehicle.
            When the defendant reached the door of his vehicle the officer again approached the defendant to ask more questions.  The officer again asked the defendant about his travels and the defendant gave the same answers he had previously given.  The officer observed the same nervous behavior as before.  The officer asked the defendant if he had any drugs in the vehicle on two separate occasions.  The defendant answered “no” to both inquiries. 
The officer asked for consent to search the vehicle and the defendant stated he did not give consent. The officer then informed the defendant that he was being detained while the officer made contact with a drug K9 to do an air sniff of the vehicle.  After the officer detained the defendant he admitted to having marijuana in the vehicle.

ARGUMENT AND AUTHORITIES

Defendant asserts the sheriff’s deputy violated the constitutional rights of the defendant when he conducted an illegal search and seizure of defendant’s vehicle.  A warrantless search by a law enforcement officer is per se unreasonable under the Fourth Amendment to the United States Constitution unless the State can fit the search within one of the recognized exceptions to the warrant requirement. State v. Stevenson, 299 Kan. 53, Syl. ¶ 1, 321 P.3d 754 (2014). Those recognized exceptions are: probable cause plus exigent circumstances, consent, stop and frisk, search incident to a lawful arrest, inventory searches, the emergency doctrine, plain view or feel, and administrative searches of closely regulated businesses. State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013). 
In the instant facts, the State will undoubtedly argue that the search fit within the probable cause plus exigent circumstances exception to the warrant requirement.  Presumably the State will argue that the admission by the defendant that “he did have marijuana in the vehicle,” paired with the fact that the vehicle was mobile and the evidence could have been easily destroyed if the officer took the time to properly apply for a warrant, would squarely fit this search into the “probable cause plus exigent circumstances” exception.  The defense agrees that if the admission was legally obtained the warrantless search would probably fit within the exception.  However, the admission to possession of marijuana by the defendant was the product of an illegal detention by the officer and therefore should be suppressed and all evidence derived from that admission including the search of the defendant’s vehicle should be suppressed as well. 
The detention in this case was the type of “prolonged detention” that is specifically forbidden by the Fourth Amendment to the United States Constitution and the United States Supreme Court has already decided a case directly on point and analogous to the case at hand.  In Rodriguez vs. United States, 135 S. Ct. 1609 (2015), the defendant was the subject of a traffic stop in which drugs were obtained.  In Rodriguez, the officer prolonged a routine traffic stop without reasonable suspicion in order to conduct a drug sniff by a K9.  In Rodriguez, the court held that,
A routine traffic stop is more like a brief stop under Terry v. Ohio, (citation omitted), than an arrest.  Its tolerable duration is determined by the seizure's “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, (Citation omitted) and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, Johnson, (citation omitted) (questioning); Caballes, (dog sniff) (citation omitted), but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket, id., at 407, 125 S.Ct. 834.
Rodriguez v. United States, 135 S. Ct. 1609, 1611, 191 L. Ed. 2d 492 (2015). (Emphasis added)

In this case, the officer prolonged the stop past the original mission of issuing a traffic warning without reasonable suspicion in the same manner as the officer in the Rodriguez case.  We look to the standard an officer must meet to detain an individual to be clear on the matter.  To detain a motorist an officer must have “specific and articulable facts and rational inferences drawn from those facts [gave] rise to a reasonable suspicion” of criminal activity. U.S. vs. Werking, 915 F.2d 1404 at 1407. An officer's “inchoate and unparticularized suspicion or ‘hunch’ ” is insufficient to give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).  The articulable facts must actually give credence to the officer’s suspicions, “[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.” Lee, 73 F.3d at 1039; Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980).  Cited in United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997).  
            Here in the instant facts there are no specific and articulable facts and rational inferences drawn from those facts that give rise to a reasonable suspicion that the defendant was involved in criminal activity.  We simply have a traffic stop in which an officer finds a nervous person, issues a warning to that person then allows them to leave.  At that time the “mission” of the officer, to issue a traffic warning, was completed.  The officer obviously did not have reasonable suspicion the defendant was involved in criminal activity while he was in the officer’s vehicle or immediately thereafter because the officer did not detain him at that time, the officer told the defendant that he was free to leave. 
The officer then approaches the vehicle and reengages the defendant, asks him the same series of questions of which the defendant gave the same answers.  The officer then asks the defendant two times if he is in possession of drugs of which the defendant answers “no.”  The officer asks if he can search the vehicle and the defendant says no.  The officer then tells the defendant he is not free to leave.  Absolutely nothing had changed from the time the officer originally detained the defendant on the traffic stop and then released him, to the second time the officer detained the defendant except that the officer no longer had a reason to detain the defendant.  No articulable fact giving rise to reasonable suspicion that the defendant has involved in criminal activity was presented between the first lawful detention and the second unlawful detention.  The only articulable fact the officer is relying on to establish reasonable suspicion to detain the defendant the second time is the “nervousness” of the defendant.   Nervousness alone is not enough to establish reasonable suspicion. “While nervousness may also appear as a factor in many traffic stop cases, we have never held that by itself it creates a reasonable suspicion of criminal activity.” State v. DeMarco, 263 Kan. 727, 737, 952 P.2d 1276, 1283 (1998). 
Pursuant to K.S.A. 22-3216, and for the sake of brevity of this motion the defense has attached State vs. Chapman, 23 Kan. App 2d 999, (1997) and United States vs. Wood, 106 F.3d 942, (1997) to this motion.  Each of these two cases are directly on point with fact patterns nearly identical to the facts presented in this case, in which both courts found that the evidence seized was the product of an illegal detention.
CONCLUSION
            “The ‘exclusionary rule’ prohibits the admission of the ‘fruits’ of illegally seized evidence, i.e., any information , object, or testimony uncovered or obtained directly or indirectly as a result of the illegally seized evidence or any leads obtained therefrom.  This exclusionary principle is known as the “fruit of the poisonous tree doctrine’” State v. Canaan, 265 Kan. 835, 840 (1998). In this case the deputy illegally detained the defendant and in doing so obtained evidence he used to illegally search the defendant’s vehicle.
            WHEREFORE, the defendant requests, all evidence obtained as a result of the search, including without limitation any statements by defendant, be suppressed pursuant to the "fruits of the poisonous tree doctrine".  Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 44 (1963); see also, State v. Childers, 222 Kan. 32, (1977).

                                                                                    Respectfully submitted,


                                                                                    COPLEY ROTH & WILSON


                                                                                   
______________________________
                                                                                    Brandan Davies  S.Ct. # 24737
                                                                                    7500 College Blvd
                                                                                    Suite 700
                                                                                    Overland Park, KS 66210
o: 913-732-3014
                                                                                    f: 913-451-9501
                                                                                    e: brandan@crwlawyers.com 



Wednesday, January 6, 2016

Lawyer at Copley Roth and Wilson gets largest Truck accident settlement in Missouri in 2015.

The widow of a 64-year-old man who died in a truck collision settled a wrongful death suit for $11.6 million, according to her attorneys. The collision occurred on a Missouri interstate highway near a construction zone where traffic had slowed due to congestion, said Jason P. Roth of Copley Roth & Wilson in Overland Park, Kansas. The truck driver collided with the rear of the decedent’s vehicle at highway speed, with no evidence of braking or any evasive maneuver, the plaintiff alleged.

Extensive discovery revealed the truck driver was recently promoted to a salaried office position where he was not regularly driving a truck, Roth said. Under federal regulations, a driver of a truck cannot drive after working in any capacity for 70 hours in a period of eight consecutive days without 34 hours off duty. The plaintiff alleged that at the time of the collision the driver had been on duty for more than 70 hours.

The plaintiff also raised concerns regarding the truck driver’s physical qualifications to drive a truck. The truck driver weighed more than 400 pounds, and discovery in the case revealed the driver had been found at risk for sleep apnea but the company failed to follow up on the numerous warning signs regarding the driver’s physical qualifications, Roth said.  Roth said that with the history of excessive daytime sleepiness, likelihood of untreated sleep apnea, and driving a truck in excess of his allowable hours of service, the truck driver likely fell asleep at the wheel.

Shortly before the scheduled depositions of the trucking company’s experts, the company agreed to settle for $11.6 million. The trucking company also indicated it would discontinue its practice of using salaried office workers to intermittently drive trucks and re-evaluate its program regarding driver health and physical qualifications, Roth said.



An attorney for the defendant declined to comment.