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Bicyclist in shoulder lane killed by distracted driver: lawsuit

Amount:

$4,000,000

Type:

Settlement

State:

North Carolina

Venue:

Durham County

Court:

Durham County, Superior Court

Injury Type(s):

arm-fracture, arm (fracture, ulna);
arm-fracture, arm (fracture, radius);
leg-fracture, leg (fracture, femur);
chest-fracture, rib;
other-death; pelvis-fracture, pelvis;
face/nose-fracture, nose

Case Type:

Wrongful Death; Motor Vehicle – Bicycle, Cell Phone

Case Name:

Estate of Eugene Rotberg, by and through its administrator Diane Rotberg v. Russell Grant Rutledge and Rutledge Commercial, LLC,
No. 16-CVS-4138

Date:

November 6, 2018

Parties

Plaintiff(s):

Estate of Eugene Rotberg (Male, 66 Years)

Plaintiff Attorney(s):

Ann E. Groninger;
Copeley Johnson & Groninger PLLC;
Charlotte,
NC,
for
Estate of Eugene Rotberg ■ Valerie Johnson;
Copeley Johnson & Groninger PLLC;
Durham,
NC,
for
Estate of Eugene Rotberg

Plaintiff Expert(s):

Fred Trueblood; Accident Reconstruction; Raleigh,
NC called by:
Ann E. Groninger, Valerie Johnson ■ J.C. Poindexter; Economics; Roanoke,
VA called by:
Ann E. Groninger, Valerie Johnson ■ John Collins; Forensic Analysis; Greenville,
NC called by:
Ann E. Groninger, Valerie Johnson ■ Steven Farlow; P.E.; Engineering; Raleigh,
NC called by:
Ann E. Groninger, Valerie Johnson ■ Deborah Radisch; M.D.; Autopsies; Raleigh,
NC called by:
Ann E. Groninger, Valerie Johnson ■ Michael Maddox; Ph.D.; Ergonomics/Human Factors; Abingdon,
VA called by:
Ann E. Groninger, Valerie Johnson

Defendant(s):

Russell Grant Rutledge, 

Rutledge Commercial LLC

Defense Attorney(s):

George Simpson;
Simpson Law, PLLC;
Raleigh,
NC,
for
Russell Grant Rutledge, Rutledge Commercial LLC ■ Caroline Stutts;
Simpson Law, PLLC;
Raleigh,
NC,
for
Russell Grant Rutledge, Rutledge Commercial LLC

Defendant Expert(s):

Thomas Griffin;
Accident Reconstruction;
Raleigh,
NC called by:
George Simpson, Caroline Stutts ■ Spencer McInvaille;
Forensic Analysis;
Morrisville,
NC called by:
George Simpson, Caroline Stutts

Insurer(s):

Erie Indemnity Co. for both defendants

Facts:

On May 10, 2016, plaintiff’s decedent Eugene Rotberg, 66, retired, was bicycling on N.C. 98, near Sherron Road, in Durham County. His bike was hit from behind by a pickup truck driven by Russell Rutledge, who had been traveling in the right lane of the highway. The truck was owned by Rutledge’s company, Rutledge Commercial, LLC. Rotberg died at the scene. Diane Rotberg, acting as the administrator of her late husband’s estate, sued Russell Rutledge and Rutledge Commercial. Rotberg claimed that Russell Rutledge was negligent in the operation of his truck and that Rutledge Commercial was vicariously liable for Russell Rutledge’s actions. The estate alleged that Eugene Rotberg was in the shoulder lane at the time of the crash. Counsel presented phone records allegedly showing that Rutledge had made calls, sent texts and received emails in the half hour before the crash. Therefore, the estate argued that Rutledge was distracted by his phone, which caused him to drift onto the shoulder and hit the bicycle. Based on an alleged failure to reduce his speed, Russell Rutledge was charged with misdemeanor death by motor vehicle. He pled guilty to this charge in May 2017. Prior to trial, Russell Rutledge denied liability and claimed that Rotberg was negligent. Rutledge maintained that he was in the right lane the entire time and that the bike drifted into his lane. During the trial, he admitted that he was liable for failing to reduce his speed when the bike allegedly came into his lane. The defense presented a digital forensics expert who stated that it was unclear whether Rutledge had read the emails on his phone prior to the crash. The estate’s counsel moved for summary judgment on the defense’s contributory negligence claim. The motion was denied, but the judge determined at trial that there was not enough evidence for the jury to consider any contributory negligence by Rotberg. The jury was only asked whether the defendants were negligent.

Injury:

Eugene Rotberg was left unconscious immediately after the accident. First responders arrived at the scene within five minutes, but Rutledge could not initially remember where he hit the cyclist. Rotberg‘s body was not located until approximately 30 minutes after the incident. By that time, Rotberg was already deceased. He left behind a wife, Diane Rotberg, and two grown children. While a full autopsy was not performed, the death certificate stated that Rotberg died of blunt trauma injuries. His specific injuries included broken ribs, pelvic fractures and fractures to his left femur, nose, left radius and left ulna. The estate’s counsel presented an economics expert who noted that Rotberg did maintenance tasks and fixed items around his house prior to his death. The expert suggested that the jury award Rotberg‘s widow $2.5 million for loss of services, protection, care and assistance. The estate’s counsel also asked for $4.5 million in damages for the family’s loss of society, companionship, comfort, guidance, kindly offices and advice. Counsel specifically asked for $2.5 million for Diane Rotberg and $1 million for each of Rotberg‘s adult children. The defense argued that the loss of services award should be less than $2.5 million because Diane Rotberg could hire someone to perform the handyman services that her late husband provided.

Result:

The parties agreed to settle the entire case for $4 million. The settlement occurred after the jury found for the estate on the issue of negligence and awarded the estate $4.5 million in compensatory damages, but prior to a trial to determine punitive damages. The amount of the settlement represented the limit of the defendants’ insurance policy.

Trial Information:

Judge:

James Hardin

Demand:

$3,000,000

Offer:

$1,500,000

Trial Length:

11
 days

Trial Deliberations:

2.5
 hours

Jury Vote:

11-0

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.

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