No easy answers in wrongful death suit

ByBOB POCKRASS via <a href="" title="ESPN" class="espn_sc_byline">ESPN </a>
August 13, 2015, 1:43 PM

&#151; -- From the moment Tony Stewart's car struck and killed Kevin Ward Jr. in a sprint-car race Aug. 9, 2014, at Canandaigua (N.Y.) Motorsports Park, it appeared highly likely he would face a wrongful death lawsuit.

That became a reality Friday when the Ward family filed its lawsuit in New York state court in Lewis County, the county where they live and operate a painting business. The case pits Stewart against the family of Ward, a 20-year-old Empire Super Sprints driver who ran out of his car on foot toward Stewart's car as Stewart drove around under caution. The right rear tire of Stewart's car struck and killed Ward.

Stewart already has been exonerated once. A grand jury heard testimony in September and needed less than an hour of deliberation to determine not to charge Stewart in the death of Ward, who had enough marijuana in his system to influence his actions, according to the district attorney.

But a civil wrongful death case doesn't have as high of a standard of proof as a criminal case, and this case is unique in racing death liability. This isn't a situation where a part or piece failed or the track or racing series is being accused of negligence. This is trying to determine what went through the mind of each of the drivers in those tragic seconds. In the months -- and years -- ahead, several factors could determine the outcome of the case, so is taking a closer look at the participants and what aspects might come in to play.

Who are the attorneys?

Both sides have accomplished attorneys. The Ward family has hired Mark Lanier, who entered the national spotlight when he won a historic verdict against Vioxx manufacturer Merck in 2005. His firm remains a heavyweight, having been named one of the 10 "Most Feared Plantiffs' Firms" by Law360 last year.

Stewart has noted Indianapolis attorney James Voyles, who has represented boxer Mike Tyson, basketball coach Bob Knight and Indianapolis Colts owner Jim Irsay. He also represented racing safety pioneer Bill Simpson in his lawsuit against NASCAR after a Simpson Performance Products belt was blamed for contributing to the death of Dale Earnhardt Sr. in the 2001 Daytona 500. (Simpson eventually dropped the suit.)

"[The Wards] have a very good lawyer in a very difficult case," ESPN legal analyst Lester Munson said. "Whatever value there is to the Ward case, Lanier will be able to obtain it.

"But I don't really see this as any kind of big case or a big threat to Tony Stewart. The family has suffered a tragedy. ... Maybe they can get a settlement out of this. If there's a trial, I can easily see the jury awarding absolutely nothing to the Ward family."

How much money can the family ask for?

In New York, juries award wrongful death damages as a percentage of fault. So a jury would determine how much fault Stewart had and how much fault Ward had. The Ward family would then receive a portion of the total claim based on the percentage the jury found Stewart had contributed to Ward's death.

"Based on the use of marijuana and getting out of the car and standing on the track, Ward has himself in a situation where he's going to be in the 75 to 80 percent responsible range would be my guess," Munson said. "That means whatever the family gets would be minimal."

The family likely would ask for an award in the millions, but the family cannot get money for its own pain and suffering. In New York, the family can get money for any financial support they could have expected to receive from Ward, based on their needs and his future earnings. The family also can get money for Ward's pain and suffering from the time he saw Stewart's car coming at him until the time he died.

That obviously is hard to determine. Was Ward going to be a racing superstar? He was driving on a regional sprint-car circuit at age 20, an age when many superstars already have started a NASCAR career. He had just four wins in the Empire Super Sprints over a five-year stretch.

The Empire Super Sprints is not a big-money sprint-car circuit, holding only 30 to 35 races a year, depending on the weather. Except for a couple of special events, the winning team earns $1,500 to $3,000 per race, with a fifth-place finish earning the team $530 to $550.

"A 20-year-old kid who raced some cars -- he hadn't established [himself]," said Syracuse University College of Law professor Peter Bell. "Are you going to be able to prove you are a major-league star and get the millions? No. They're going to have a lot of trouble proving they were going to get any significant economic support."

A key could be whether Ward suffered any fear when he saw Stewart's car coming at him and if he had any vital signs between the time he was struck and the time he was pronounced dead 45 minutes later.

"Impending fear of death is going to be significant -- if he was aware that he's going to die, has one or two seconds of that, that is compensable in a five-figure award," said noted New York City trial attorney Marvin Salenger, whose law firm has won several multimillion-dollar settlements and verdicts over the last 30 years.

How much will Ward's marijuana use impact the case?

That is probably the biggest question with no clear-cut answer. If the Ward family can prove that Stewart did anything unexpected from a race-car driver -- who is a three-time Sprint Cup champion -- in a similar situation, then it doesn't matter as much that Ward had marijuana in his system.

Bell said the marijuana could play a role in the fear and terror claim.

"The defense is going to say, 'This kid was running on to a track with cars whizzing by him, he didn't have any terror, he didn't have any fear -- he was doped up and the only thing he had on his mind was he was going to show Tony Stewart what was what and then he got hit,'" Bell said. "He probably didn't have any care. If there was any conscious thought going on in his head, he wouldn't be on the track."

Munson said Ward will not get sympathy from a jury because of the marijuana use.

"It's going to be extremely difficult for the family and the lawyer to persuade a jury that the jury should reward the family for a kid who is stoned and racing cars," Munson said. "That to me is the key to the whole case.

"They can say that Stewart was negligent, that it was intentional, that it was reckless, that it was gross [negligence] -- none of them are going to work if the jury concludes that [Ward] was stoned and driving in that race."

Why might Stewart settle if it was an accident?

Stewart has everything to lose -- he has his race teams, his race tracks, and his race series that all depend on sponsors. The family already has lost its son and his marijuana use has been made public.

The Ward family attorney says they have not sought or been offered a potential settlement. Neither Stewart's spokesman nor the Ward family's legal team would comment further on the pending case.

"Legally, there is no reason for Stewart to try to settle," Munson said. "He can win this case. As a PR matter, he may wish to settle and make peace with the family."

If Stewart settles, he would never have to testify under oath about what happened that night, opening what he said up to interpretation. He also would avoid any digging into his past as the Ward family tries to prove a pattern of irrational behavior.

"This gives somebody with the power of subpoena a chance to root around in the life of Tony Stewart. There's no doubt about that," Munson said. "And that would be of some concern. He would know, and Voyles would know, whether there's anything to worry about there. If there's something to worry about, they would have settled without the lawsuit probably."

A judge could rule that any evidence that doesn't pertain to what happened Aug. 9 is inadmissible. But that wouldn't prevent the Ward family's attorneys from asking anything in a deposition, where Stewart would still answer the question while his lawyer objects to its use in trial.

"At a deposition, you can ask a million questions, a lawyer may object or not object, but he's going to be forced to answer those questions, I think by a judge," Salenger said. "It might not be admissible at trial but look at Bill Cosby -- the deposition testimony gave 10, 15 years previously is now coming out."

Salenger said Stewart also might want to settle because the video portrays Stewart as someone who didn't do the right thing. While a jury might get the explanation of how the sprint cars operate and why it would be reasonable to accelerate the car to turn then, the video of his car striking Ward gives the appearance of Stewart being reckless to the average person.

"That's a horrible, horrible thing to do where the kid does a stupid thing and Stewart has the last clear chance to avoid the accident and rather than do that, he's more interested in whatever he's doing at the time," Salenger said about the way the video is viewed.

"His reputation stands to have a big stain, a big blemish and that's going to renew the interest the public has in the case to begin with."

Will insurance play a role?

Stewart most likely has a liability insurance policy that would cover at least part of the claim, and policies would require Stewart to have an obligation to cooperate with the lawyers of his insurance company.

If the insurance company believes it can settle the case under the limits of the policy and the Ward family has a chance of winning, it would push for a settlement, Bell said.

"Tony Stewart has a reputational interest and emotional interest that may make him look at this suit differently," Bell said. "The insurance company, they are not interested in settling cases that are losers for the plaintiff."

How long will this take?

A trial could come as early as 10 to 12 months, Munson said, but it could be two or three years away, according to Salenger. A big award likely would result in an appeal, which would extend the case even longer.

The case was filed in New York Supreme Court in Lowville. Stewart could try to take the case to federal court because it involves one person from Indiana (Stewart) and one person from New York (Ward). Because it was a wrongful death that happened in New York and the victim was from New York, the state court most likely would have jurisdiction, Salenger said. An accident case is not typically a question of federal interest.

"If I were Stewart's defense team, I would certainly keep it there," Salenger said. "It sounds like a rural, agricultural community and I think they're not used by big numbers. I think they'd be over-awed by Stewart's persona and his reputation."

Munson said he also expected the case to remain in New York's court system.

"Voyles is the kind of guy who will be happy to go in and try any case anywhere and he doesn't need to be in the federal court to do what he knows what he can do," Munson said. "He is formidable. I would think they will leave it where it is even though it appears to be the Ward family's home court."

Also knowing Voyles, Munson said the case might not have gotten this far if Stewart just wanted the case to go away.

"If he wanted to settle in a hurry, [Stewart] could have settled without the lawsuit," Munson said. "For all I know, Voyles might have said, 'We're not going to pay you a penny. Go ahead and sue us.'

"That would be just like him. He knows what he can do and he's very good at it."

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