Whittenburg v. Werner Enterprises Inc.

• Decision Date: 03 April 2009
• Docket Number: No. 07-6063.,No. 07-6119.,07-6063.,07-6119.
• Parties: Mack WHITTENBURG, Plaintiff-Appellee, v. WERNER ENTERPRISES INC.; Marisela Neff; Jon M. Morlan; and Drivers Management LLC, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

561 F.3d 1122

Mack WHITTENBURG, Plaintiff-Appellee, v. WERNER ENTERPRISES INC.; Marisela Neff; Jon M. Morlan; and Drivers Management LLC, Defendants-Appellants.

No. 07-6063.

No. 07-6119.

United States Court of Appeals, Tenth Circuit.

April 3, 2009.

Michael L. Carr (Steven E. Holden and Jane R. Cowdery, with him on the briefs), Holden Carr & Skeens, Tulsa, OK, for Defendants-Appellants.

Broadus A. Spivey, Broadus A. Spivey, P.C., Austin, TX, and Sam L. Stein, Whittenburg Whittenburg Stein & Strange, P.C., Cherokee, OK, for Plaintiff-Appellee.

Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Mack Whittenburg was driving his pickup truck on the highway when he collided with a stalled tractor-trailer. Suffering a number of injuries, Mr. Whittenburg brought suit against Werner Enterprises, Inc., the trucking company, as well as Werner's driver management company and the individual tractor-trailer drivers. The jury ultimately returned a verdict assessing the defendants' negligence at 75% and Mr. Whittenburg's damages at $3.2 million. The defendants timely appealed. We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg's counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel. Neither line of argument was appropriate. Their volume and volubility, the fact they went unrebuked despite contemporaneous objections, and the apparent influence they had on the jury's verdict, collectively lead us to the reluctant conclusion that, not only were they improper, but a new trial is required.

I

On the morning of December 1, 2003, driver-trainee Marisela Neff was at the helm of the Werner truck while her trainer, Jon Morlan, was dozing in the sleep seat. After realizing she had taken a wrong turn onto Oklahoma Highway 325, Ms. Neff awakened Mr. Morlan who, after consulting a map, advised Ms. Neff to make a U-turn. Part-way through the U-turn the truck got stuck and remained jammed in the highway, blocking the road in both directions and shining its headlights toward oncoming traffic.

Mr. Morlan exited the truck and attempted to ascertain whether and how it might be moved out of the way of traffic. Meanwhile, Ms. Neff saw headlights approaching and ran into the middle of the highway waving a flashlight. When that failed to slow the oncoming vehicle, she ran back to the truck and began to beep the horn and turn on more lights. Mr. Whittenburg, the driver of the approaching car, testified that as he approached the obstruction he observed only the truck's headlights shining down the opposite side of the road. Believing the lights to emanate from a large vehicle parked on the opposite shoulder, Mr. Whittenburg did not slow down and as a result collided with the truck.

Both sides agree that it was dark at the scene, with little or no ambient light, and that neither Ms. Neff nor Mr. Morlan placed reflective warning markers, available in their truck, on the highway. There was reflective tape on the sides of the Werner truck, though whether Mr. Whittenburg was in a position to see the tape's reflection given the angle of the truck was a matter of dispute; Mr. Whittenburg testified he did not see the reflective tape.

Ultimately, Mr. Whittenburg brought this suit for injuries he suffered as a result of the collision. At the close of trial, Mr. Whittenburg's counsel presented a closing argument in which he asked the jury to "imagine" with him that, shortly after Mr. Whittenburg had left the house the night of the accident, Werner delivered a letter to Mr. Whittenburg's children. Because many aspects of this portion of the closing argument are challenged, we reprint it here:

And so I want to take you back to November 30th, and I want you to do just an imagining thing with me.

You recall Ann Whittenburg sitting there on the stand and saying, "Sunday afternoon we saw Mack off that day that he went to the ranch." Now, just bear with me; think with me.

Imagine that there's Brit, and there's Ann, and they sent Mack off, he's on his way out there Sunday afternoon, maybe six o'clock. Mack turns around the corner as he leaves Palacio back to I-40 and he's going to take 35 north on his way to 287 out of the Amarillo.

Brit turns around and gets ready to walk back in the house, and there's an envelope sitting there on the floor, and he reaches down and he picks it up, and he gives it to Ann, and Ann opens it, and she looks at it, and it's a letter.

It's a letter to Brit and to Sarah and to Cecily and to Justin and to Amanda.

I'm just imagining, but listen to these facts.

This letter's dated November 30th, 2003, and it's from Werner Enterprises.

"Brit:

"That was the last time you will ever see your dad as you now know him. You should let your siblings know this.

"In just a little while, our company drivers, Jon Morlan and Marisela Neff, are going to get in one of our big semi-trucks in Limon, Colorado, and we're going to head south toward Amarillo pulling a loaded trailer. Ms. Neff will be driving. She's too inexperienced to make this trip safely, and Mr. Morlan will be too tired to properly supervise her, and, while Mr. Morlan crawls in the truck sleeper and goes to sleep —

...

"Ms. Neff will be unable to properly follow the route that she and Mr. Morlan laid out, and she will be too confused to read the upcoming road signs.

"Our drivers will arrive in Boise City, Oklahoma, just ahead of your dad, sometime around midnight or thereafter. Ms. Neff will take a wrong turn west of Boise City, and Mr. Morlan — Mr. Morlan will be too in much of a — he'll be in too much of a blue funk to be of any help to her after she does call on him for help.

"He will refuse to take the steering wheel when she calls for his help, and she will high-center the truck on the highway when she attempts a U-turn, rather than taking a little extra time to find a place that — safe place to turn around or to call for help. And Ms. Neff will center — will high-center this semi-truck out on the same highway that your dad will be traveling on his — on his way out of Boise City to your family's ranch.

"Once stuck on the highway, our drivers will ignore the law, and they will ignore our company procedures, and recklessly set a trap for your dad.

"Rather than setting out warning triangles and turning off the headlights on the truck, they will focus on trying to free the truck and trailer as quickly as they can so they don't have to answer to their fleet manager for the delay and downtime they are experiencing, and also so Mr. Morlan won't have to explain why he allowed his student to execute an improper maneuver while under his watch.

"At approximately 1:30 during that cold early morning of Monday, December 1st, your dad will drive his pickup right smack dab into the side of our semi-trailer at approximately 55 to 65 miles an hour because he sees nothing but blinding headlights from our semi-truck shining into his eyes. He will be fooled into thinking that our 34,000 pounds of truck and trailer are parked safely along the eastbound shoulder of the highway.

"After he smashes into the side of the trailer and the impact literally rips the muscle and flesh off of his bones and shatters his lower right leg, our trainer, Mr. Morlan, will soon disappear into the truck and try to get himself woke up and out of his blue funk before anyone else arrives on the scene and can observe him.

"Ms. Neff will be hysterical, but, not to worry, the shift supervisor from our local Love's Truck Stop will come on the scene and she'll go back to Boise City and call for help.

"Your dad will survive the crash, and help does arrive, but he has to endure the claustrophobic remains of what's left of his pickup for nearly two hours while rescue workers work to free him from the wreckage, not knowing if they's going to burn to death or get rear-ended in the meantime.

"He will suffer serious and disabling injuries to his legs and his knees and his arms and his neck and his back. He will come home to you a different man.

"He will suffer pain and anguish for the rest of his life. He will suffer a loss of income and damage to his future earnings. He will live out his days looking forward to the next corrective surgery, and then the next, and even the next.

"We will wait for your dad to sue us to recover for his damages, and then we will try to avoid full responsibility for what happened. We will make excuses, and our lawyers will try to blame the collision on your dad, saying it was just an accident and that he had the last clear chance to avoid it. We will never take responsibility for our driver's actions.

"We will hire own — our own lawyers who will take your dad's life apart. Our lawyers will focus on the fact that your dad comes from a prominent Texas Panhandle family, and our lawyers will expose every part of your dad's professional and personal life in an attempt to make the jurors think poorly of him.

"Our lawyers will accuse him of being a trust-fund baby who intentionally remained under-employed just so he could bring this lawsuit and prove damages.

"Our lawyers will hire experts and will force your dad's lawyers to hire experts in order to prove that he wasn't at fault.

"We will fight to keep out of evidence that our driver-trainee pleaded guilty to unlawfully stop — unlawfully parking a stopped vehicle that night, and we will spend thousands of dollars to have —

...

"We will have our experts spend — we will spend thousands of dollars to have our expert perform a nighttime photo shoot in an effort to persuade your dad and possibly jurors that he was just not paying attention on that fateful morning.

"Our lawyers will spend whatever it takes to try to talk our way out of having to be accountable for what...