UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. * * * * * * * * * * * * * * * * * * * MICHELE LACAILLADE, ET AL * * v.

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE * * * * * * * * * * * * * * * * * * * MICHELE LACAILLADE, ET AL * * v. * * LOIGNON CHAMP-CARR, INC. * * * * * * * * * * * * * * * * * * * * -CV--JD --0 TRANSCRIPT OF CLOSING ARGUMENTS OF PLAINTIFF BEFORE THE HONORABLE JOSEPH A. DICLERICO APPEARANCES: For the Plaintiff: William J. Thompson, Esq. Nicholas D. Cappiello, Esq. Lubin & Meyer, P.C. For the Defendant: Mark W. Shaughnessy, Esq. Anthony M. Campo, Esq. Boyle, Shaughnessy & Campo, P.C. Court Reporter: Susan M. Bateman, LCR, RPR, CRR Official Court Reporter United States District Court Pleasant Street Concord, NH 00 (0) -

2 I N D E X CLOSING ARGUMENT: PAGE By Mr. Thompson 0

3 0 P R O C E E D I N G S THE COURT: Counsel. MR. THOMPSON: Thank you, your Honor. Good afternoon. I get to talk to you in the opening statement and then we really don't get to talk again until the closing statement, and everything in between is us trying to get you the evidence that you're going to need to fairly decide this case. I always feel at this point in the trial -- I would like to say thank you. I would like to say thank you to each of you in terms of your time and your attention that you have given to this case. It's important to everybody, and it's important to Mrs. Lacaillade and her family that they get a fair hearing, so thank you for being here. This case has always been about Mr. Lacaillade. It's been about Mr. Lacaillade to start, and it's about Mr. Lacaillade at the end. And Mr. Lacaillade is never coming back. Mrs. Lacaillade, Michele, has lost her husband. Taylor and Drew don't have a father, and that all, in our view, is the result of very, very poor judgment exercised by the tractor-trailer driver. You heard that Taylor doesn't like to hug people now, as she feels that she may lose somebody

4 0 else that's close to her. You heard that Drew feels guilty when he does things, activities with other people that he used to do with his dad, because he's here and his dad is not here. These are the things that the Lacaillade family has to live with and will live with for years and years and years to come. A sweatshirt and a few pictures of dad does not equal a father. Paul Lacaillade, as you heard from the witness testimony, was a really good guy. He served his country. He earned his education. He was a hard-working man making an honest living. He was the kind of father that Michele said every child would want to have. He was the kind of husband that every woman would want to have, and that can't be replaced. We can't go back and make him alive again. But what we can do in this trial is acknowledge that responsibility should be addressed and accounted for. And so it's not about sympathy, even though it's obviously sympathetic when somebody suffers a loss. Any death is tragic, but when a death is avoidable, well, then it shouldn't have happened, and I suggest the evidence in this case -- not the arguments of counsel, but the evidence -- is that the reason Mr. Lacaillade isn't here to be a part of his

5 0 family with this great future is because the tractor-trailer driver did not use reasonable care. He violated a number of different laws in Maine, which Judge DiClerico will explain to you in a moment, and he was not using basic common sense. We talked about how one passes a vehicle. We already know how one passes a vehicle, but we did it in this case with the witnesses and the evidence. You pass a vehicle, whether it's a bicyclist or anything else, safely, by slowing down, by looking where the bicyclist is in the road, by looking down the road and seeing what the distance is, what the visibility is, what the line of sight is. In this case the tractor-trailer driver took a gamble. It tried to pass Mr. Lacaillade on a corner where he couldn't see clearly around the bend, where he didn't know if there was a car or a vehicle coming in the other direction because he couldn't see. That wasn't a good place to pass, and he got himself in a position because, as you know, there was a vehicle coming in the other direction, where he didn't have anyplace to go. He couldn't stay in his lane of travel or he would have a head-on collision with the pickup truck, so he had to move out of that lane, and in doing so on

6 0 this corner with this space he forced Mr. Lacaillade off the road. The facts should be what you decide this case on, not what counsel may speculate about, but the facts. The facts show that this was a dangerous pass on a corner with limited visibility. It was not a reasonable thing to do. It was a risk. It was a needless risk that the tractor-trailer driver took not with his life but with Mr. Lacaillade's life. You heard that this was not the way that Mr. Morin would typically pass a bicyclist. You heard it was the safe thing to do to leave as much room, to be on a straightaway, have a good line of sight, pull way to the left, pull as much of, if not all, of your tractor-trailer into the opposite lane to get clearance from the bicyclist, but that's not what he did in this case. It's what he started to do when he passed the two female riders. You heard some testimony from one of those riders, and you may recall in the opening statement where you heard from the defense that they were going to call at least five fact witnesses. The most important people were going to come into this case and tell you what happened at the scene. Well, they only called three of them. We called one, and one they

7 0 didn't call at all. Think about what all of those witnesses, the ones that you did hear from, actually said. Were they that able to provide any insight as to the actual crash? Because none of them saw the crash. Not one of them saw the actual crash. Mercedes Kuzina didn't see it. Mr. Albert and Mr. Smith didn't see it. Mr. Morin didn't see it. Nobody saw the crash. But what those witnesses did was provide important information about what happened and where the truck and the bicycle were before the crash, facts that help support the plaintiff's case that Mr. Morin forced Mr. Lacaillade off the road. We know from Ms. Kuzina that the truck pulled wide to pass her, well into the opposite lane, and she has that tractor-trailer straddling that yellow line, right wheels in the right-hand lane, left wheels in the left-hand lane, going right up that hill and never moving. The last time she sees that tractor-trailer the right tires are in the right lane and the left tires are in the left lane straddling the yellow line, so we know she couldn't possibly have seen the actual crash because that's not where the truck was positioned at the time of the crash. That testimony is consistent, in terms of

8 0 where the truck tires were, with Mr. Morin's own testimony. He has his left tires over into the opposite lane of travel as he approaches this curve. We know from the physical evidence in this case that at the time that the tractor-trailer ran over Mr. Lacaillade its left tires were on the yellow center line, and we went over this a number of times, but it's an important point. Physical evidence, proof, if you will, matching up the point where Mr. Lacaillade was run over and the marks that the tires left, and we know how wide the truck is, and we measure out and we know exactly where the truck was positioned at the time of impact. It is on the center line. So to get from the position in the left lane, where there is two to three feet, or whatever you want to believe from which witness, the truck is over into the left lane. At some point it moves back. It has to move back. It's obvious that it has to move from the left-hand lane to get to where it was at the time of the accident. When and how? Well, there's some conflicting testimony on that, and that's something that you will discuss and work out. As the evidence stands, either the tractor-trailer driver saw the truck coming in the

9 0 other direction and said, I've got to get out of the way, which would make sense because he had some time to see it, not a lot because there was limited visibility, but time enough to steer over. And Mr. Schack told you, just steering the truck, you know, it's not a herky-jerky movement. It doesn't leave a skid mark on the roadway. He had time to move over and get over that yellow line to try to let that other car go by. Meanwhile, he's got the bike over here. He's got himself in a tight spot, a tight spot he put himself in by deciding deliberately to make this pass on this portion of the roadway. And yet the tractor-trailer driver yesterday told us he didn't see the vehicle coming in the other direction until they were all side by side and they were all lined up, like the diagram we used with Mr. Schack, Mr. Albert and Mr. Smith. So either he saw it and he had to move over and in that narrow space force Mr. Lacaillade off the road, or I guess if you believe that he didn't see it, then where is he looking? He's not looking ahead. He's not paying attention to what's coming ahead. Either way, he's not driving carefully and he's not exercising reasonable care. Mr. Smith and Mr. Albert were witnesses that

10 0 were advertised by the defense to be critical in terms of being able to see the crash, and yet I was at their deposition. I knew what they said. I knew what they would say when they came here. They didn't see the crash. The truck was in the way. So what they saw as they approached heading toward New Hampshire -- the last thing they saw was this truck on the yellow line, entirely consistent with what we all believe happened from the facts. They didn't see it around the bend when it was straddling the line. By the time they saw it, it was right on the line. Obviously it had to move over at some point. And they see Mr. Lacaillade on the white line, or maybe to the right of the white line, which is entirely consistent with how the accident happened. He was on the white line by all accounts, by the witnesses who saw him before the bicyclists, and Mr. Morin himself, and at some point we know he had to get from the white line off the edge of the pavement. Well, as that truck moves over, that's a narrow space, and you're riding a bicycle along and you hear that truck. You heard evidence that you can hear cars coming. Well, this is a big truck hauling up a hill. That makes a noise. If you're an

11 0 experienced bicyclist, you sense that, you hear that and you know that's coming. And so Mr. Lacaillade, appropriately, is trying to be on that white line, and as that truck comes over it pinches him even more. He's doing everything he can to hold his position, but he's right on that edge where it drops off. He's got nowhere to go. He doesn't have an out because the tractor-trailer driver didn't leave himself an out. And so the only place for Mr. Lacaillade to be is to try to hold that line, to try to stay up and hope he doesn't get grazed or knocked over by the truck itself, and in doing so he loses control and drops off the edge of that pavement. Well, that's how we have always explained the accident. That's what we think the facts show. The defense has come in and suggested, ah-ha, it was the shoulder that caused this accident. Well, true to a point. I mean, it was the tires of the bicycle dropping off the edge of the pavement that caused Mr. Lacaillade to lose control and then to fall back into the roadway where he was run over. The defense made a big deal about that with Mr. Schack, now you know this and you're speculating, but that's what the police at the scene found. That's

12 0 not in dispute. The actual event that caused him to lose stability was the bike dropping off the pavement. Okay. But that doesn't answer the question: Why was he forced off the pavement? Why would he ride off the pavement? Why would an experienced bicyclist ride off an edge of the pavement and crash if he wasn't forced off by a truck? You heard that he didn't ride in the breakdown lane area in that shoulder area to the right of the white line. You heard that there's debris in there, things that collect, sand and all of that, trees and things, metal and rubber and everything that sort of gets pushed off to the side by the cars. You heard that it's not dependable. It's not consistent. Solomon Walden talked about that. He talked about how people like Mr. Lacaillade, who are experienced riders of these high performance bikes and with these real thin tires, no way is he riding on that. You're riding on that white line. And if there's no traffic, you're riding out in the actual roadway where it's smooth, and that makes sense. So the question isn't was it the falling off of the edge that caused him to crash. Of course it was. The question is: Why was he going off the edge? Why was he forced off the edge?

13 0 You have evidence of a tractor-trailer trying a pretty risky pass on a curve in the roadway where all of the evidence suggests he had to move from the left over back into the right, putting -- you know, we'll throw out numbers,. feet or. feet, all of that can come really close to Mr. Lacaillade, however the numbers break down as you sort through all of the evidence, coming really close to him, and that explains why an experienced rider trying to hold the edge drops off. There's no other reason why Mr. Lacaillade would have driven off the roadway. Now, that didn't stop the defense in this case from speculating and raising these theoretical possibilities, as outlandish and crazy as they were, you know, the lawyers are allowed to use their imagination. You heard evidence of the foot coming out of the pedal, or evidence that the tire blew out, or evidence that he was fiddling with a computer. There's no evidence whatsoever for any of those things. All of the evidence has Mr. Lacaillade riding normally, seated, not going side to side or wobbling. Now maybe as he started and said good-bye to the others riders, maybe he gave some pumping to get going to get up that hill, but as he's going up that hill

14 0 Mr. Morin has him riding normally on the white line. As he's going around the corner, Mr. Smith and Mr. Albert have him sitting, riding normally, not wobbling, not going side to side. So there's no evidence -- and again, focus on the evidence. There's no evidence that he went off the road for any other reason other than the obvious reason. A 0,000 pound -wheeler tractor-trailer moving right into his lane at the very time he's running out of room, that's why the accident occurred. This diagram that Trooper Porter put together sort of shows that. This is the one that Mr. Campo put up in his closing. Take a look at it. You've got some estimation by Trooper Porter about where the objects were. She knows the width of the lane. She knows the width of the truck. She puts the truck as best she can on that yellow line. Where's that bike rider going to go when that tractor-trailer moves over? He can stay on the white line as best he can, but look how close the tractor-trailer is going to be to him. Can he move over? Well, he moves over at some point from that white line to the edge of the road where he falls off. That happens over a period of time, and the defense will use their two seconds and try to do the math and

15 0 make that sound, whatever it is, but there's a period of time as that tractor-trailer is bearing down on him where he senses it, he knows it, and he sees the pickup truck coming in the other direction and he says, I've got to be over as far as I possibly can be, and he does that, and that's entirely consistent with what this image shows. Mr. Schack told us that the whole crash happened in a sequence of about. seconds after the defense had taken him through this one second, two second thing, or feet down the road. It's mathematically impossible, but that's exactly what the Maine State Police say happened. We know the point of impact where the tire went off the pavement. We know that Mr. Lacaillade was thrown back into the roadway. We know that he was run over. We know where his body ended up. It's all measured. It's not like there's some crazy math going on. It's all right here. Does it make more sense based on the facts that Mr. Lacaillade was forced off the road by this tractor-trailer truck, seeing something come in the other direction, having to move right, not leaving him enough room, or some pure coincidence that just at the exact same time that's happening one of these other

16 0 crazy theories is also happening? At the exact same time that that's happening his pedal slips out and that's what causes him to wipe out? Not on the evidence. You should decide the case on the evidence. You heard some testimony about this three feet issue and what the duty here is for the tractor-trailer driver. The tractor-trailer driver can see the whole thing. They can see the curve. They can see the bicyclist. And their obligation is to pass safely. It's not the bicyclist's obligation to create a three-feet clearance, a minimum three-feet, by the way, not that more isn't better, because we all heard that evidence. It's the tractor-trailer's obligation to leave a safe distance, to pull out, and to make sure that before you start that pass, how fast am I going? How fast is this vehicle or bicyclist going that I'm about to pass? What's the road? Where does it go? How does it curve? Can I safely pull out, pass, and get back without cutting him off and without getting into trouble with an oncoming car? And if you can't do that, you can't pass. It's the obligation of the tractor-trailer to make sure it's safe and that, as you heard, requires being able to see a sufficient distance. It's not

17 0 just, do I see a car in the distance. It's, I have to get out around, down past, and back before anyone coming in the other direction gets to this last point where I'm pulling back, because I've got to be out of the traffic lane from the other vehicle by the time I finish that pass. It's not like, oh, I don't see anyone coming, I can start, but I can't see around the bend. That's not a safe pass. You have to be able to see a sufficient distance down the road that you know you can get out, get by, and get back before some other car reaches that point, because otherwise you're putting the other car in jeopardy and you're putting the bicyclist, or whoever you're passing, in jeopardy, because you're trying to thread the needle, and that's the position that Mr. Morin got himself in. He got himself in a tight spot where he was trying to thread the needle. Maybe if the car is not coming in the other direction maybe he gets away with it. It's still a stupid place to pass, but maybe he gets away with it. It's unreasonable to think there's no car coming, maybe I'll just go around the whole corner on the inside and there won't be something coming. That's not reasonable. That's not a reasonable way to drive a tractor-trailer truck or to pass any vehicle.

18 0 The test is what the tractor-trailer driver should have done. It's not what the bicyclist could have done. We heard testimony on that. I think that's important, because there's some suggestion that the bicyclist could have moved out of the way or could have ridden off into the shoulder. It's not what the bicyclist could have done. It's what the tractor-trailer driver should have done because it's the tractor-trailer's obligation to create that safe distance on the pass. So when they say that -- well, let me back up. There was some claim in this case from the defense from the very beginning that there's no evidence that the truck moved from the left back to the right. You heard the cross-examination of Mr. Schack, you can't point to a single witness that says that the truck moved from the left lane back to the right lane. Well, Mr. Schack said, well, there's not a single witness, if you will, that gives that testimony, but I considered all of the evidence; the fact witnesses who have him driving, straddling the yellow line before the crash; and himself who has him straddling the yellow line before the crash; the witnesses who have him on the yellow line just before the crash, literally just before the crash, and the

19 0 physical evidence that has him on the yellow line. So yeah, I put it all together and I say that he moved from the left to the right, and they made a big thing about that; you can't prove that and you're speculating. And did you notice what happened last night when Mr. Morin finally admitted that he did move from the left to the right? He finally admitted that. You heard he had previously said that he stayed straight and never moved to the right, and then finally, whether it was a moment of clarity or whether he realized the evidence was overwhelming, he finally admitted, yes, I moved to the right, but he said, I did it after. I did it after I passed Mr. Lacaillade. That just can't be true. It defies the physical evidence. He wasn't past Mr. Lacaillade when he moved to the right. He was on the yellow line when he ran him over. He had already moved from the left to the right before he passed Mr. Lacaillade. Now, you heard that in cases like this oftentimes there are experts, and they're offered as an aid to assist you. You can decide the case based on common sense. You can decide the case based on what you know about how to pass bicyclists safely. You see tractor-trailers on the road. You see

20 0 0 bicyclists and cars, and you know the rules of the road. You can decide this case on your own knowledge, your own life experience, and your own common sense. But you heard that there were going to be experts coming in to assist you. You heard that there was going to be my expert, Mr. Schack, and their expert, Mr. Metz, to give you their opinions, and he was going to be shown by videotape, but you never heard that. Instead what they tried to do is take a fact witness, Mr. Hanson, and sort of fit him into that spot. Think about that. I would like you to think about Hanson and Schack, and not necessarily that they're on the same par or that you should give their testimony the same weight, because I suggest you shouldn't, but I would like to talk to you a little bit about each and allow you to do some comparison. You heard all of this, and I don't mean to be repetitive, but I do think it's important. I would like you to remember that Trooper Hanson is not and was not ACTAR certified. You heard him acknowledge those are the minimum standards that accident reconstructionists have to go through to be qualified and to get certified. There are minimum standards that are put out.

21 0 And not only in 00 was he not ACTAR certified, but the testimony is that he wasn't successful passing it. He didn't bring that up. I had to bring that up. But that's something you may consider in terms of his qualifications or his experience. As of the time of this accident he had only investigated eight or ten, and that is what it is, you know, it's just a fact that you may consider with respect to his experience in terms of how he approached the situation at the scene. He did some things well, and Mr. Schack acknowledged that. He was able to match up the tire mark of the bicycle with the fibers on the roadway and determine the point that the wheel went off the edge of the pavement, the mark of first contact, and that was good work. He was able to match up the marks in the gravel that were consistent with being dropped off the pavement, and he could see where it was spinning out as the tire -- you will see in the photographs -- as the tire was spinning and going down, the angle he expressed, and he was able to put the location of the truck on the roadway. That's him in the photo that I had put up earlier doing the paint marks, because he was able to

22 0 say, okay, here's where the inside tire of the fifth axle ran over the head. These are the marks I see down the road. I can figure out where that part of the truck was on this roadway at the time of the crash. From that I can do the math. I can measure the width of the lane, I can measure the width of the trailer, and I can figure out exactly where the trailer was at the time that Mr. Lacaillade was run over, and he puts the paint marks down and he made that determination. So when he was right at the scene of the accident, the bike, the body, and the roadway, he did some things that were very good, and Mr. Schack appropriately said those were good things. But you would be wise, I think, to consider that he limited his analysis to that scene -- to what happened right there at the scene. That he did not consider what happened in the or seconds before the crash. In other words, you heard he didn't ask Trooper Porter to do any mapping more than about a hundred feet before the crash. He didn't do any time/distance analysis in terms of coming around the bend, how much time he would have had to see Mr. Lacaillade, how much time before he got to the crash site, how much time before the truck comes around the corner, how much time before he could see around the

23 corner. 0 He didn't do any of those things, and he didn't have the information from the fact witnesses. He used the physical evidence and the physical evidence only. That's fine to a degree for what he was doing. The physical evidence did allow him to do those things, as I mentioned, to figure out where the truck was and where the bike went off the road. All good. But he didn't talk to Mr. Morin. He didn't talk to any of the fact witnesses, and so he didn't have the benefit of what they said. He didn't know that the tractor-trailer was in the left lane straddling the yellow line and then moved back to the right. He didn't have the benefit of what Mr. Albert and Mr. Smith said; that at the time of the crash where they saw the truck and where they saw Mr. Lacaillade. He didn't have that and so he wasn't putting that into his analysis. He did not know about the other Maine laws. In his report he speaks to one part of the law in Maine, about this three feet clearance, but there are other laws, and you will hear them shortly, that apply in this case -- that Mr. Schack mentioned, for instance -- several other laws that speak to how to safely pass a bicycle, when it's appropriate to try to

24 0 pass on a corner, when it's appropriate or not appropriate to go into some other lane when you can't see what's coming in the opposite direction. And Trooper Hanson didn't consider any of those things. He limited it just to that issue, and it's right in his report. I thought about what I could analyze here, and I looked at the clearance issue, the room issue, and that's the only issue that he looked at, and I think that's important because that's all that he considered. And even in doing that he agrees that there was a violation of Maine law. He agrees that there was a violation of this three foot clearance, this three-foot minimum, and yet we heard he didn't measure to the edge -- from the white line to the edge of the roadway. He didn't know what that distance is. Well, that's kind of important. He didn't know the extent of Mr. Lacaillade's riding experience, like these other things that are significant to think about how this crash occurred. He didn't consider the width of the bicycle rider. This. feet, remember, was from the tires on the white line to the side of the truck. He didn't factor in how the body obviously spreads out in either direction, and so, as Mr. Schack said, it's really more like. feet. He acknowledged that later

25 0 in his deposition when I asked him about it, but at the time he did his report he didn't think about that. That may be a function of his inexperience in doing this type of accident investigation as of that date. We all agree, as I said, that going off the pavement edge is what caused the loss of control of the bicycle. The issue is what caused him to go off the edge. And Trooper Hanson did not consider that. I asked him about that, and he said, well, I didn't think about that -- or I didn't analyze that. I didn't determine what caused him to go off the edge. Because if he had, he would have gone back and figured out what the witnesses said, what the path of travel was and how all of this came to be, but he didn't do that. So I would like you to think about Mr. Schack now and everything that Mr. Schack had to say. Mr. Schack, as you heard, is ACTAR certified. He was the first New Hampshire state trooper to become ACTAR certified in, I think he said. He's been recertified every five years ever since. He is second in command -- or was second in command at the State Police. He does the teaching of all of the New Hampshire state troopers. He was the sole guy who did that for a while, and now as a consultant he still

26 0 goes back and teaches the troopers about accident reconstruction. He speaks and gives seminars. He came on Thursday because the day before he was the keynote speaker at the attorney general's program on accident reconstruction. He has done thousands of accident reconstructions. Some, as you heard, types of property damage claims for insurance companies and whatnot that don't take a lot of time. No big injuries. And some are a lot more involved where he does consulting for attorneys in cases where there's a death or the injuries are much greater or the issues take longer to address, but he's a fair guy. One of the things that you get to do as jurors is assess the credibility of people from your everyday lives, and you would do it in the courtroom. Every person who took that witness stand you get to decide who to believe. You get to decide to believe some, none, a part, or all of what they have to say. And when you think about Charlie Schack, doesn't he strike you as somebody who is honest, who is candid, who is straightforward? He was up there for two different days, and throughout those two different days steady, measured, scientific, logical. And despite how the defense would like to characterize it as -- somehow the fact

27 0 that he's compensated for his time makes him biased, did he look biased to you? And despite how they would like to claim he's the advocate and paint him as that, wasn't he trying to be fair in every question that he answered, whether it was my questions or Mr. Shaughnessy's questions? Didn't he strike you as someone who was trying to be honest to all of the facts and tell the truth? He would concede things to Mr. Shaughnessy all of the time. If he said, you know, can you say this? I thought based on his earlier testimony he would say yes, and he would say, you know, I'm not sure I can, because he was honest. He would concede what needed to be conceded and, you know, he does most of his work for defendants, not for plaintiffs, in these types of cases. His conclusions, I would suggest, are scientific. They're based on the evidence and the facts. That's what he based his conclusions on. They are not only scientific, they are complete, and that's important. He looked at not only the physical evidence but also the witness accounts of the accident. He has read all of the Maine law that applied, not just one single section. He was logical and he went over his conclusions with you, and he gave the testimony on Thursday that Mr. Lacaillade --

28 0 excuse me -- that the tractor-trailer driver was negligent in the operation of the tractor-trailer, causing the death of Mr. Lacaillade. He went through and explained how and why, why this happened, why it shouldn't have happened. He talked about why it was not safe to attempt to pass where the road curved to the left and the view of the driver was impaired, where in this position the driver couldn't see that there was oncoming westbound traffic, which would prevent him from staying in the opposite lane as he passed the bicyclist. He talked about how Mr. Morin put himself in a tight spot unnecessarily and unsafely. He agreed, as I indicated, with much of what the state police report found. He gave them credit for what they did, and some of it was good, in terms of analyzing the physical evidence. But some conclusions are off, and he pointed those out not in a snobby way but just in a -- you know, Trooper Hanson didn't have all of the facts. He didn't do all of the analysis. He didn't avail himself of all of those witnesses, and he didn't do any of the scientific analysis, that time/distance analysis, that would have allowed him to fully understand the facts of the accident.

29 0 Mr. Schack went over every inch of this accident scene. He told you he was there four different times. He took photographs. He took measurements. He took videos. He did a total station survey where you can do that forensic analysis. He did his own to clarify certain points, to show some different areas that weren't covered, and to verify the areas that Trooper Porter had actually done, and he did more. He examined all of the evidence, the physical evidence at the scene and the witness accounts, and when Mr. Campo stands up here in his closing and says to you, do you think Schack should have talked to Mr. Smith? Well, didn't he? He didn't call him up on the phone and say, hi, Albert, this is Charlie, but he read his deposition. Mr. Schack read every deposition taken of every witness in this case. He essentially did talk to all of the witnesses, and what he read he puts all together. He considered the speeds of the vehicles. He considered the location on the roadway of the vehicles, the bikeway. He drove this roadway himself in both directions to understand from each perspective what everyone was seeing, how you approach this corner, and whether this was a safe and reasonable

30 0 0 place to pass. He looked at that curve. He did the time/distance analysis. He determined with scientific certainty the angle of the road, the sight lines, the time to reach the curve, the visibility, and after doing all of that he told you what his reasoned opinions and findings were; that this was not a safe place to pass, it was a poor choice, and this was a tight spot that Mr. Morin put himself in unnecessarily and unsafely. And it's not, as Mr. Campo has suggested, that Mr. Schack didn't want to know what Mr. Smith said or what anybody else said. He knew what they said because he did the extra work and he read everybody's accounts, and he factored that in. And no offense to Trooper Hanson, but that's different from what Trooper Hanson did. Mr. Schack told us there was to seconds to decide what to do, based on the science. He plugged in miles an hour, and then he plugged in 0. Why? Well, because you might find a different way. There was some testimony he was going. Some testimony he was going 0. Okay. Well, let's do them both ways. So it could be seconds. It could be seconds. You, the jury, get to decide. That's a fair witness.

31 0 And he told us that what the tractor-trailer decided to do in that to seconds is to choose to pass Mr. Lacaillade on the worse possible place on the road. Mr. Morin yesterday told us he had time to think about it. He had plenty of time. He knew this curve in the roadway. He said in his deposition he knew it by heart. I don't know what he knew, but he certainly had driven this road lots of times before, and he said he had plenty of time to think about it, lots of time to think about it, and he made a deliberate decision to pass on this corner. Not only did Mr. Schack do a full analysis, but he did an analysis of why this bicycle went off the edge of the roadway, not just that it did -- we know it did -- but why. And based on all of the evidence the why is because he was forced off the roadway by this tractor-trailer. Now, the defense, Mr. Shaughnessy, cross-examined Mr. Schack for a little bit on Thursday and then basically all day on Friday, and you can think about that in terms of what was really asked and what was really developed and why they would be going off in all these areas. Because I would suggest that that cross-examination was taking us all on a trip to

32 0 nowhere. There were things that were covered in there that have nothing to do with this case, and they knew it. You may remember that they were asking Mr. Schack about what the bicycle was made of, and Mr. Schack said, well, I can't tell you specifically. It was, ah-ha, you don't know, and he said, well, I can tell you it was an alloy of some sort, but I can't tell you if it was titanium or aluminum or a combination. Who cares? Was that an issue in this case? Did that have anything to do with this case? They asked him what brand of helmet it was. Seriously? Is any brand of helmet going to prevent Mr. Lacaillade's head when it went under that tractor-trailer -- was it going to prevent this accident? They asked him about forces as the bike goes off to the right making the bike fall to the right. He spent 0 minutes talking about forces about the bike going to the right. Well, nobody believes that. There's no evidence of that. He knew when he was asking those questions that the state police found that the bike fell to the left for all of the reasons that were covered in their report. Schack says he agrees with that statement in the report. Nobody said

33 0 anything about this falling to the right. That's just another attempt, I would suggest, to distract you. They went through -- and Mr. Campo will say that Mr. Schack was distorting the evidence. Think about that and ask yourselves, who was really doing the distorting. Because you also heard questions that Mr. Schack didn't know whether that turn sign in the video of the road, in Mr. Schack's video in 0, was in there in whether it was there in 00. It's right in Hanson's report, a picture of it taken the day of the accident. It's in evidence. Why did we spend ten minutes going over that? He asked Mr. Schack about whether he tested his theory that the bicycle fell off the roadway and went into a crash. He said, well, I didn't really want to put myself into that position, and there's no evidence to the contrary. The state police agree, he agrees, that that's exactly what happened. What is there to test? He was asked questions about whether there was any evidence of, you know, adjusting the computer. There's no evidence whatsoever of this little bike speedometer. They made a big deal that Heidi Placy was going to come in here and say that, and of course she never came in to testify. They said they were

34 0 going to call her, and they didn't. You heard -- he was asked questions about her statements -- Mercedes' testimony that the bike was wobbling and going side to side. Now, you may recall she didn't say that in her deposition. She said just the opposite. She said it was going normally, not wobbling and going side to side, and then she came to court and changed her testimony after sitting and meeting with the defense lawyers. You may appreciate from what you saw in this courtroom that there may be some family dynamics involved there, but what they asked Mr. Schack about, it turns out that there was really no evidence of that in this case. The economist came in to testify. I'm sorry. I'm just about done. I'm going to wrap up here. But you heard some evidence about how to put this loss into perspective. Well, there's really two ways that you measure a loss of this magnitude when someone is killed like this. The first is what economically they would have provided to their family, and that's something that not all of us can sort of readily grasp out of the air, so we brought you an economist. We thought that would be helpful to you.

35 0 Now, what Mr. Markham says isn't binding on you. You make all of your decisions entirely, but it is some evidence of what the present value, which is what today's dollars are, that would equate to what Mr. Lacaillade would have earned over the course of his whole lifetime. And Mr. Markham took out what his personal expenditures would be for his own activities, his food and whatnot, and he came up with an estimate of a number between three and a half to four million. Those are the numbers. You saw that. That's some evidence that you can relate to or consider. They didn't bring anyone to contest that, and so that's the evidence as to the economic damages. And I would suggest the far more serious loss is the loss of the relationship, and that loss has to do with the husband/wife relationship that Michele lost. She called Paul her soulmate, and she will have that loss going forward every day, every minute of every year, for the rest of her life. We put in some evidence of the life expectancy table, so you would have some idea of how long Mr. Lacaillade was going to live so you could sort of put some perspective on that. And also Taylor and Drew who lost their relationship with their father. Those losses are ones that you have to use

36 your own life experiences and your own good judgment as to what's fair and reasonable. Nothing more. Nothing less. All we want in this case is a fair hearing, and we believe that if you fairly consider the evidence, and just the evidence, the facts that are in this case, that the way to answer the verdict slip is to check off "yes" to question No., that the negligence of the defendant was the cause of Mr. Lacaillade's preventable and untimely and premature death, and then go on to answer the rest of the questions as you see fit. And if you do that, if you apply your common sense and your good judgment, you will be doing your job as jurors, and that's all we ask. Thank you very much for your time. (Conclusion of requested excerpt) 0

37 C E R T I F I C A T E I, Susan M. Bateman, do hereby certify that the foregoing transcript is a true and accurate transcription of the within proceedings, to the best of my knowledge, skill, ability and belief. Submitted: -- /s/ Susan M. Bateman SUSAN M. BATEMAN, LCR, RPR, CRR 0