Heather Wolford, 64, was driving her 2000 Honda Odyssey minivan on a highway at night when an ambulance approached from behind on its way to an accident ahead. Wolford pulled onto the shoulder and stopped behind a tractor trailer also stopped there. After the ambulance passed, the driver of the truck and Wolford drove back onto the highway, both traveling at about 5 mph because of the slowed traffic. About 30 seconds later, Phil Chekhriy, driving a tractor trailer behind Wolford at about 25-30 mph, struck the rear of the Odyssey. The impact propelled the minivan into the rear of the tractor trailer in front—the one Wolford had followed back onto the road from the shoulder.
After the incident, both Chekhriy and the driver of the other tractor trailer told investigators that Wolford had suddenly darted from the left lane to the right lane between the two semis, cutting off Chekhriy’s assured clear distance ahead. As a result of those statements, Wolford was cited for improper lane change and convicted of that charge in traffic court.
Wolford suffered multiple injuries, including bilateral femur fractures, spinal fractures at T1-5, and multiple rib fractures. She underwent open reduction internal fixation surgery, in which rods and screws were implanted in each femur. She also underwent several months of physical therapy to treat the spinal fractures and relearn to walk. Fifteen months later, she had surgery to remove the hardware in her right leg and replace her knee. She then underwent two additional surgeries on her right knee to repair her patella tendon, which had detached after the knee replacement surgery. Each surgery was followed by additional physical therapy. Her medical expenses totaled about $600,000; the medical provider accepted $140,000 as full payment.
Wolford continues to suffer pain, swelling, and a reduced range of motion in her right knee, and she has severe scarring to the knee. Her right leg is also shorter than her left. She has a permanent limp and requires a cane to walk. A toll collector at the time of the incident, she has been unable to return to that job but may be able to obtain more sedentary employment.
Wolford sued Chekhriy, alleging that he was negligent in failing to pay proper attention to his driving and timely brake to avoid the collision. The plaintiff also sued Chekhriy’s employer, S&T Transport, Inc., alleging that it was liable under respondeat superior because Chekhriy was in the course and scope of his employment at the time of the collision. At trial, the plaintiff obtained an instruction that, under an Ohio traffic statute that applies to trucks on highways in nonresidential and nonbusiness areas, a truck driver must leave sufficient space between his vehicle and the vehicle ahead to permit a motor vehicle passing him in the left lane to enter safely between his truck and the vehicle ahead.
Chekhriy argued that Wolford suddenly moved into the lane in front of him, cutting him off, and that he did not have enough time to brake to avoid the collision. Contrary to his statement to the responding officer, however, Chekhriy admitted on cross-examination that the first and only time he saw the minivan was when it was directly in front of him, in the right lane, and that he never saw it in the left lane.
The defendants moved for a directed verdict based on the plaintiff’s traffic citation for improper lane change. They also requested a jury instruction that she was negligent per se under the doctrine of collateral estoppel based on the prior traffic court conviction.
The trial court denied the motion on the basis that Wolford did not testify at the traffic court trial, invoking her Fifth Amendment right not to do so. Therefore, the court concluded, the defendants failed to show that she had had a full and fair opportunity to litigate the issue in the earlier trial.
The jury found Chekhriy 100 percent at fault for the collision and awarded $950,000, including $400,000 for past pain and suffering, $210,000 for medical expenses, $200,000 for future pain and suffering, and $140,000 for past lost earnings. The defendants are jointly and severally liable. They have moved for a new trial, judgment n.o.v, or, in the alternative, remittitur of the pain and suffering award. Among other things, the defendants are arguing that the trial court should have granted their motion for a directed verdict and should have instructed the jury that Wolford was negligent per se under the doctrine of collateral estoppel.
Citation: Wolford v. Chekhriy, No. G-4801-CI-20107943 (Ohio, Lucas Co. Com. Pleas Jan. 23, 2014).
Plaintiff counsel: Scott E. Spencer, AAJ member Brian D. Vicente, and Robert Z. Kaplan, all of Toledo, Ohio.
Plaintiff experts: Van B. Boggus, orthopedic surgery, Sylvania, Ohio; and Jennifer Grogan, general surgery, Toledo.