Ann Groninger details the trial of the killer of cyclist Gene Rotberg.
There is nothing good about losing a beloved husband, father and member of the community. Eugene (Gene) Rotberg will never be replaced; everyone who knew him has a hole in his or her heart because of Gene’s absence. Of course, the loss to his wife, two grown children and grandchildren is immeasurable. But sometimes new hopes arise from the ashes. Losses can change the lives of other people, and affect change in the world.
Back in October and November 2018, after litigating the wrongful death case for almost two years, I finished, along with my law partner Valerie Johnson, a two and a half week wrongful death trial in Durham County, North Carolina. After deliberating for two and half hours, the jury returned a verdict of $4.5 million. Our client was the widow of Gene Rotberg; they’d been married for almost 30 years at the time Gene was killed by a distracted driver while Gene was riding his bicycle.
If you consider that Gene was on a bicycle, that he was retired with only a part time job income and that North Carolina is one of four states in the country still following the law of “contributory negligence,” a verdict of this size is almost unheard of. So what led to this unprecedented result?
We think several factors contributed to the significant verdict. Most significantly, though, jurors were able to see Gene Rotberg as not just a bicyclist, but as a loving husband, father, grandfather and someone they would want in their community. Also, our jurors are among the growing number of people who are sick of sharing the road with intentionally distracted drivers.
Here is how the case unfolded.
On May 10, 2016 I got the call from a close friend that the father of a mutual friend had been killed in Durham while riding his bicycle. The crash was on Highway 98, east of Kemp Road. I knew that road segment well; the routes of my early days of road biking almost 20 years ago in Raleigh encompassed it or crisscrossed it regularly. Anyone who spends some time riding the back roads around Falls Lake has probably used it as a connector road.
It’s important to document a scene as quickly as possible, but it’s not often you get to do that the same day. In this case our engineer was able to visit the scene within hours after the police finished their investigation.
Talking with families who have suddenly and unexpectedly lost a loved one is part of my job. It never gets easier. The heartbreak and bewilderment are palpable. You absorb their pain and carry it with you. It’s part of what makes this work so rewarding but also what makes it difficult. When you have a personal connection to the family, it becomes even more real.
At the outset, the crash made no sense. We knew the bicyclist was an experienced and extremely safety conscious rider. Our engineer, also a bicyclist, and I both knew that bicyclists who ride on Highway 98 always ride in the wide shoulder. When a bicyclist gets hit in the shoulder of a wide road, in the middle of the day and with thousands of feet of visibility, there is usually only one explanation: severe distraction.
As information began to trickle in, the story began to emerge: The driver was Russell Rutledge, owner of Rutledge Commercial, a small commercial dooring company. Rutledge’s story changed between the time he talked with local police and then the highway patrol. We learned that the Rutledge kept driving after the impact, turned around, then turned around again. We learned that he told the police he first saw Gene when he was 30 feet away and that police confiscated Rutledge’s cell phone.
Within the first week, we sent an investigator out to comb the neighborhood. No one saw the crash. Someone had heard it and a few neighbors had gone outside after and had a few bits of information to share.
We learned that Rutledge had driven from a customer in South Raleigh to his home office on Wake Forest Highway. While en route, Rutledge made and received calls, almost back to back, he read and responded to emails and read and responded to texts. He even texted while talking on the phone.
Rutledge turned right onto Wake Forest Highway and drove East. He reached a hill that was about a quarter of a mile from his home. That hill is where Gene Rotberg was riding on his bicycle. As Rutledge closed in on Gene, Rutledge drifted to the right, onto the shoulder and hit Gene and his bicycle almost squarely from behind, sending Gene, the bicycle and all of its accessories flying toward the guardrail at the side of the road and the grassy ditch beyond it.
One would assume then that Rutledge slammed on his brakes and came to as immediate a stop as possible. But that wasn’t the case. Rutledge continued down the road, then turned around and drove West past the crash site by about 500 feet, then turned around again and parked his car at the bottom of the hill that Rutledge had driven up right before the collision. He called 911 and first responders arrived in about 5 minutes. But they were unable to find Gene because Rutledge could not tell them where to look. After a 30 minute search and the arrival of more EMTs, Durham Sheriff deputies and fire department personnel, Gene was found in the grass at the top of the hill. He was pronounced dead at the scene.
On the day of the crash, Rutledge told police a story that he would vary somewhat over the coming years. On May 10, 2016, though, he told police that he first saw Gene when he was 30 feet away. He said that he was driving his truck at 55 mph, that Gene came out of the shoulder and into the travel lane and collided with Rutledge’s truck. For many reasons, Rutledge’s story made no sense.
THE CRIMINAL CASE
We continued to gather information and investigate the driver. In September 2016 we filed the wrongful death lawsuit while continuing to wait for the case to play out in the criminal courts.
Most people who do not practice law and have not experienced the legal system themselves do not understand the relationship between civil and criminal courts in a case like this. In this case, the driver was charged with misdemeanor death by motor vehicle. It is the State of North Carolina and not the victim or victim’s family who brings criminal charges against a defendant. An assistant district attorney is assigned to prosecute the case. While we can help our clients navigate the criminal process and share information from our investigation with the DA’s office, we do not play any official role in prosecuting the case.
When information about the driver’s cell phone began to come in, we hoped the DA would bring felony charges based the driver’s extremely reckless driving, or in the language of the criminal courts: “criminally reckless behavior.” Had the DA done that, it would have been the first case in North Carolina to base a felony charge on distracted driving behavior. Considering even what little we knew at the time about Rutledge’s cell phone behavior during his drive, we thought it was the right case to be the first one. But that was not to be.
In May 2017, the driver pled guilty to misdemeanor death by motor vehicle and was sentenced to 75 days in jail. He immediately obtained “work release” which allowed him to leave the jail from 7 am to 6 pm every day from Monday through Saturday. So he only spent nights and all day Sunday in jail during those 75 days.
THE CIVIL CASE
Once the criminal case ended, we were able to see the North Carolina State Highway Patrol’s (NCSHP) full investigative file. That contained a wealth of critical information. What turned out to be the most critical to the case was (1) all of the defendant’s statements, (2) the debris field and (3) last but certainly not least, the driver’s cell phone records.
We also were finally able to take Rutledge’s deposition; it usually makes no sense to do this before the end of the criminal case as the defendant will “plead the Fifth” (refuse to answer questions) in response to questions that have any bearing on the criminal case. We learned a lot from Rutledge himself, including that he typically spent 6 hours a day driving from customer to customer, to pick up parts and handle emergencies. Rutledge also claimed that he was wrong about the 30 foot distance from which he first saw Gene; he now claimed it was a couple of bus lengths, but something less than 200 feet. Still thousands of feet shy of actual sight distance.
During the course of the criminal case, we had only the ADA’s summary timeline of Rutledge’s phone use. Once we had access to the NCSHP file, we saw the “cellebrite report,” or the report of the download of Rutledge’s phone. We were able to see the exact time of each call, to whom it was made and whether he entered a contact or dialed a number. We were able to see the time and recipient of each email and saw that he was sending emails to the same people who had just emailed him, showing he’d also read the emails. And we were able to see the substance of his texts. Although his brand new truck was Bluetooth enabled, Rutledge had not connected his iPhone 6 to the truck. We learned that Rutledge spent a large part of his 6 hours of daily driving using his phone.
Click here to see his cell phone usage timeline.
We also saw the mapping of the debris field. That means the NCSHP had collected the evidence from the scene, including 4 lights from the bike, a bike mirror and pieces of the truck, for example, and logged the location each item was found using known coordinates at the scene. The crash reconstruction team then mapped out each piece of debris to find the location of the crash. Every single piece of debris, but one, was found in the grassy area to the right of the shoulder. The one other piece of evidence, a AAA battery from a bike light, was found in the shoulder. Not one piece of evidence was found in the 12 foot travel lane where Rutledge should have been driving. Based on the location of the evidence, the NCSHP concluded that Rutledge hit Gene in the shoulder.
As I mentioned, Rutledge initially told police that, as he approached Gene, that Gene had come into the travel lane and collided with Rutledge’s truck. This was scientifically impossible unless Gene had made the move so gradually that Rutledge would easily have seen it happening and been able to avoid it. But because Rutledge hit Gene directly from behind, Gene could not have suddenly veered out into the lane. Further, had the impact happened in the travel lane, we likely would have seen debris in the main travel lane instead of all of it being in the grass to the right of the shoulder. And further, had Gene suddenly veered into the lane, we would have seen him come up on the windshield of the truck and fall down onto the road, instead of being sent off to the right.
Based on the new evidence, we filed a motion to amend our complaint to add a claim for punitive damages, based on the distracted driving. The motion was granted. More about that in the next section.
Mid 2017 through 2018 was filled with depositions: our three experts – financial expert, crash reconstructionist, and human factors experts, two defense experts – cell phone expert and crash reconstructionist, 3 highway patrol officers, a medical examiner and some lay witnesses. And multiple written discovery questions were sent back and forth. With the punitive damages claim, we were entitled to find out about the driver’s financial worth, so we pursued that information. We also sent what are known as “requests for admission:” questions that require the other side to admit or deny certain facts. And our investigation continued.
THE PUNITIVE DAMAGES CLAIM
A lot of people think it’s a no-brainer that if you’re hit by a distracted driver, you will get punitive damages. That is not at all the case. First, there is no precedent in this state – not a single case or statute – that says distracted driving supports a punitive damages claim. In the history of North Carolina, courts have allowed punitive damages claims only under very limited circumstances. To get punitive damages, you have to prove willful and wanton behavior (or fraud or malice, but those don’t usually apply in driving cases).
Second, proving distracted driving is not as easy as proving drunk driving or excessive speeding. If a drunk person causes a crash, he’s still drunk after the crash happens and the level of drunkenness can be measured. Speeding is a little harder to prove because either someone has to see it or there must be physical evidence (i.e., black box download) of it. Still, it either is speeding or it is not.
Distracted driving is different in two ways: First, you never have exact proof because you almost never know the exact moment of the crash. So how do you match up a call or text with the crash? Also, the software system police use to download phones only downloads texts, emails and calls. It does not detect web activity or usage of other apps, such as Facebook. To prove a distracted driving case, you need strong circumstantial evidence.
The second way in which distracted driving cases are different is that there is no yardstick for distracted driving. Drunk driving has a number and speeding has a number. How much distraction is enough to rise to the level of willful and wanton behavior? Is it enough if the person heard a call come in and glanced at the phone? That would likely be ordinary negligence? So how hooked to the phone does one’s eyes have to be for the behavior to be willful and wanton under the law? Whatever the threshold is, we believed our driver met it.
So we filed our motion to amend the complaint to add the punitive damages claim. In granting our motion, the judge recognized that our case was one of “first impression” in North Carolina and that, sometime before trial, we would have to put forth proof that we had enough evidence to present our claim to a jury.
As predicted, the defense next filed a motion for “summary judgment” – a motion that asks the judge to find against the other side on one or more issues “as a matter of law.” When doing so, the judge has to consider the evidence in the light most favorable to the non-moving party. The defense claimed again that the law did not support our claim and, even if it did, that we did not have facts to support it.
Rutledge claimed that he was not distracted by his phone during the moment of the crash. There was two minutes between the last text and the 911 call. Rutledge claimed he sent the text while stopped at a light. A number of emails came in to the phone between the text and the 911 call but the software did not show whether the emails were opened and the police did not look at the actual phone. In any case, the driver had his phone for several hours after the crash and was using it before it was confiscated so even if the emails showed read, it could have been during that time.
We argued that failing to see a person in the road until he was 30 feet away when there were thousands of feet of sight distance, overwhelming evidence that the crash happened in the shoulder, and not being able to show police where to look for the victim were facts that screamed distracted driver. The history of nonstop cell phone usage throughout the drive demonstrated his mode of behavior that morning as he drove his truck along I-40 and back roads through Wake and Durham Counties. Later, during the deliberations, jurors adopted the term we used to describe the driver’s operation of his truck: “rolling office.”
The judge denied the defense’s motion and we were set to bring the distracted driving claim to a jury.
A lot of people don’t understand what goes into preparing for a trial, especially one of this magnitude. Think of it as rehearsing for a play, except you have only a few weeks to rehearse and you won’t know all your lines until showtime. You also have to write your own script, make your own props and prepare your own technology. And up until the play starts, you’re still writing scripts and working on a bunch of other plays at the same time. All of that typically leads to 100 hour work weeks during trial.
We started Monday afternoon with multiple motions from both sides. The defense again wanted to throw out our distracted driving claim, this time asking the Court to dismiss our punitive damages claim and also asking to limit the evidence the jury got to hear about Rutledge’s cell phone use. As a result, we were allowed to show Rutledge’s cell phone usage from the time he left his customer in South Raleigh through the 911 call, but not the thousands of pages from the Cellebrite report showing his previous activity, even though we could show for some of it that he had been driving. Also we were not allowed to show his Facebook timeline with its repeated posts of photos (and a video!) he took and posted while driving. Some of that evidence might come in during the separate punitive damages phase, but the judge would reserve that ruling.
Another important motion was the defendant’s request to bifurcate the trial. When there is a punitive damages claim, the defendant has the right to have it tried separately, but with the same jury, from the other claims. Either side may also ask that liability and damages be tried separately. The defense wanted liability tried separately and compensatory and punitive damages tried together. Judge Hardin said no, we would try liability and damages together; punitive damages separately. We were happy with that ruling.
The final important motion was our motion for summary judgment on the defendant’s contributory negligence claim. Under the law of contributory negligence, if a person is hurt by someone else’s negligence but the injured person is even 1% at fault, the injured person will receive nothing. By contrast in comparative negligence states, the injured person will receive compensation, reduced by the percent of the injured person’s fault. It is very easy for insurance companies to argue that a person making a claim is at least 1% at fault and the result in a contributory negligence state (NC, MD, AL, VA) is devastating.
Rutledge admitted at trial, for the first time, that he was partially responsible for Gene’s death; he continued to claim that Gene was partially responsible for coming out into the roadway into the path of the Silverado truck. But there was no evidence of that other than Rutledge’s story and on that issue, Rutledge had the burden of proof. We asked the judge to throw out the claim. He said no.
There were other motions about other items of evidence. Most significantly Rutledge’s horrendous driving record. He’d had 14 other crashes since he started driving, including one the previous year on the same road and, according to the police report, also due to distraction. The jury would hear none of that evidence, nor the multiple other driving offenses on his record. Our client was distraught. We weren’t surprised.
It took us 3 days to pick a jury. We had about 20 mini focus groups (and a few not so mini ones) so we knew the type of jurors we were looking for. Many people had such strong feelings about bicyclists, distracted driving or paying damages to compensate for loss of life that they just could not be fair to one side or another (or just did not want to be on the jury; it was easy to tell who was being honest and who was not). It is an arduous process and jurors who come in on day one have to sit through the whole thing. But it is critical to finding people who can fairly decide the case. In many courts outside North Carolina (and all federal courts) jury selection is very limited, with judges asking the questions or attorneys limited to a very few questions. In those courtrooms, trying a case is a little closer to just rolling the dice than it is a strategic presentation. Our trial judge gave both sides a fair opportunity to fully question potential jurors.
Finally, we started opening statements and evidence. We had over 100 exhibits ready to present. We called Rutledge as our first witness. I didn’t count how many times the defense objected, but the jury was in and out of the courtroom constantly during his testimony, as the judge heard arguments about various bits of evidence. Overall, Rutledge did ok; better than we expected considering how terrible his story was in the first place. Although he wasn’t able to give any details on time, distances or manner of movement, he stuck with his story about Gene crossing over the fog line into the road. We were able to ask him about his license, which was suspended at the time of the crash (of course it wasn’t his fault; his lawyer forgot to tell him to pay off a ticket).
The most interesting part of Rutledge’s testimony was what he said about the timing. Remember he said he was stopped at a light when he sent his last text. In fact, it was a very specific light at the corner of Sherron Road and Highway 98. If that testimony was true, then (1) Rutledge wasn’t sending a text when he hit Gene and we had to rely on more circumstantial evidence of distraction and (2) the 2 minutes between the text and the 911 call gave him enough time to crash and do all the turning around he did after the collision. What Rutledge forgot, however, or didn’t realize, was that the friend he was driving to meet told the 911 dispatcher and police, in his written statement, that Rutledge told him he was on his way and was on Mineral Springs Road just before the collision. It was impossible to travel Mineral Springs Road and Sherron Road without driving in a loop. Caught off guard, Rutledge said that must have been “passing” the entrance to Mineral Springs.
Well, since we knew from the Cellebrite report what time Rutledge had called his friend, we had Rutledge mark on the map (1) the time at which he passed Mineral Springs and (2) the time at which he sent the text at Sherron and Hwy 98:
When our expert got up on the stand later and testified, he calculated that Rutledge would have had to travel 288 mph to travel that distance within the time between the call and the text!
The witnesses following the driver were the investigating Highway Patrol Officer, the Highway Patrol Sergeant who did the reconstruction, the Sergeant who downloaded the phone, the medical examiner, a Durham County Sheriff’s Deputy, our expert engineer, two close friends who regularly rode bikes with Gene and knew his habits for traveling along Highway 98, Gene’s two grown children, Gene’s wife, Diane and a neighbor who was also a close family friend.
After the Highway Patrol testimony, it was clear that law enforcement believed and the evidence showed that Rutledge hit Gene in the shoulder of Highway 98 because he was distracted by his phone. There was also testimony that the State was considering charging Rutledge with a felony charge but that was dropped when Rutledge agreed to plead guilty to the misdemeanor. Our client had not been made aware of that decision making process during the criminal proceeding.
Our reconstructionist tied together the various parts of the highway patrol testimony and further explained why the evidence showed that the collision occurred in the shoulder. I’ve worked with this engineer many times and for the first time ever, he was nervous: “I don’t know what I’m missing in this case,” he told me, “it seems so obvious.” I was the only one aware of his anxiety, however; to the jury he appeared calm, rational and intelligent.
To the surprise of several of the court personnel, we did not spend a significant amount of time on testimony about Gene’s family’s loss. Each family member got up and testified calmly yet poignantly about his or her loss and what it meant to them. Their stories of how they learned of Gene’s death were heart wrenching. All in all their testimony took a few hours of the two and a half week trial and there were few dry eyes in the courtroom when it was over.
The defense evidence was a riot but disappointing in that they did not call their crash reconstructionist. We had an epic cross examination planned for him and he likely was astute enough to realize he would look pretty badly testifying that his opinion was based entirely on Rutledge’s statements.
The defense did call an expert in digital forensics whose only testimony was that you could not tell from the Cellebrite report whether emails had been read, a fact that was undisputed. Their remaining two witnesses were Bonnie Knott, a neighbor to the crash scene and Robert Hales, the friend Rutledge was driving to meet. Having been informed of the timing discrepancy, Hales suddenly forgot that he called 911 (we played the tape to remind him) and claimed ignorance of the road as an explanation for why he said Mineral Springs in his written statement.
Bonnie Knott testified that she put a pound cake in the oven at 11 am (25-26 minutes after the crash) and sat down to look out the window, at which time she saw a bicyclist riding by in the travel lane of Highway 98. Her testimony had My Cousin Vinny written all over it; we got to talk about Ms. Knott’s experience with baking pound cakes, as well as the lace curtains and blinds over her windows, the trees with thousands of leaves in her front yard and the distance between the chair she was sitting in and the road. Her testimony was so perfectly dramatic that we left out questions about her prior conviction for stealing from her employer.
And finally, closing arguments. Before closing though, you have more motions and a charge conference where the lawyers and judge discuss the law that is to be applied to the case. It was at this point that we moved for a directed verdict on contributory negligence. Finding that there was “no more than a scintilla of evidence” of contributory negligence, the judge declined to give the jury a contributory negligence instruction. Since Rutledge had finally admitted that he had fault in the collision, this left the defense with no argument on liability; a huge win for us. No matter how ridiculous a contributory negligence defense seems, you just never know if you will get a freak jury who will find that 1% negligence and return a $0 verdict. We got to argue to the jury, knowing that they had to put a number on the verdict sheet.
The defense asked also asked the judge to give the jury the instruction on impeding traffic:
The motor vehicle law provides that no person shall operate a motor vehicle on a highway at such a slow speed as to impede the normal and reasonable movement of traffic.
This is typical for every bicycle case I have tried and, as in every other case, the judge declined the instruction once I pointed out that it applies to “motor vehicles,” not bicycles.
After arguments, the judge reads the instructions to the jury and then the case is in their hands. In one sense, it’s a relief. There is nothing more you can do to advocate for your side. All the evidence is in and arguments made. On the other hand, giving up control of a case you’ve lived with for years to twelve people you’ve known for a few weeks and only talked with for a couple hours is the most nerve wracking feeling imaginable.
5 pm came and the jurors were asked if they wanted to stay or return in the morning. They opted to return. November 6 was election day. It was pouring rain. It was obvious the jurors had bonded; they were friendly to each and we saw them together outside of the courtroom.
A short time after being sent back out to deliberate, the jurors were back with a verdict. It is an excruciating process. The foreperson hands the envelope to the bailiff, who hands it to the judge, who very deliberately opens it up and reads it carefully, then writes it down on a piece of paper. The judge then hands the verdict sheet to the clerk, who reads the caption, the questions and, finally, the verdict. The jury found Rutledge responsible for Gene Rotberg’s death and wrote $4.5 million as their judgment.
Jurors disappeared before we had a chance to talk with them, but we called and spoke with several of them after the trial. Most were not only willing to speak with us but eager to talk about the trial and how it affected their lives. One juror felt inspired to begin bicycling again. Some vowed to tell their spouses every day what they meant to them. And some hoped their verdict would send a message to everyone who is tempted to look at a cell phone while driving: don’t do it.
Trying cases is a regular part of what we do as lawyers. We are in and out of courtrooms and depositions weekly. But this trial will stand out to us for years to come for many reasons, but most of all because of the lesson it teaches. Gene Rotberg was a beloved husband, father, grandfather and member of the community. He had so much more to contribute during his life. And because a driver could not wait another minute, until he reached his home, to look at his phone, Gene is gone. Gene could have been anyone sharing the road with Rutledge that day. Distracted driving is dangerous not only for bicyclists but for everyone. We hope that telling this story helps save even one life; maybe the next time someone who has heard of this case thinks to pick up the phone in the car, they will think about the lives their behavior could impact, including their own. This is why we do what we do.