Multi-million-dollar settlements

A box truck heading south on Interstate57 in southern Illinois suddenly veered across the grass median.

According to police, driver Dennis D. Hernandez - who was hauling sound equipment for the VH1 television series "Rock of Love Bus with Bret Michaels" - had fallen asleep. Prosecutors say he was driving under the influence of marijuana.

William B. Wiley of Tallahassee, Fla., and his wife, Colleen N. Wiley, were on their way to Iowa on that day, Sept. 26, 2008. As the Wileys drove north on I-57 near West Frankfort, Hernandez's truck crossed over the median, heading straight at them.

According to a lawsuit filed later by the Wileys, Hernandez slammed into their pickup truck, injuring both of them.

Hernandez hit another northbound vehicle, killing the two young women inside: Yasmin S. Jackson and Kevetta C. Davis, 19-year-old sophomores at Southern Illinois University.

The accident resulted in three lawsuits - and three multi-million-dollar settlements. A year after the accident, the families of Jackson and Davis each received settlements of $6.5 million in Cook County Circuit Court. A month later, William and Colleen Wiley received a settlement of $16 million in a lawsuit filed in downstate St. Clair County.

"We settled the case in about 10 months, which is remarkable in just about any jurisdiction, but particularly around here," said Daniel M. Kotin, a partner at Corboy & Demetrio, who represented Brenda Davis, the mother of Kevetta Davis, in one of the Cook County lawsuits.

"If we'd gone to trial, it likely would have been two to three years - and here's a family that was looking for closure," said James D. Montgomery Jr. of Cochran, Cherry, Givens, Smith & Montgomery, who represented Kevetta's father, Kevin Davis.

When defense attorneys offered $6.5 million to the family during mediation, Montgomery said he believed it was a "very strong offer" that would help the family to begin putting this tragedy behind them.

The defendants included Hernandez, who lives in California, and his employer, 51 Minds Entertainment LLC, the New York company that produced "Rock of Love." The families also sued the VH1 cable channel and its parent company, Delaware-based entertainment giant Viacom Inc.

"We needed to make sure there was enough of a deep pocket that we could reach into to satisfy all these claims," Kotin said. "That's why adding these corporate defendants was crucial."

"Dennis Hernandez was the employee of 51 Minds Entertainment," Montgomery said. "He was not an employee of VH1 or Viacom. But because he was performing an activity on behalf of VH1 and on behalf of Viacom, he was effectively acting as their nonemployee agent. That's how we built the theory against them."

The defense attorneys - John W. Bell and Robert R. McNamara at Johnson & Bell and Bruce M. Wall and Paul T. Kleppetsch at Cassiday Schade - declined to comment.

Yalanda and Tracy Jackson, the parents of Yasmin Jackson, hired Dallas lawyer Nuru Witherspoon and filed their own lawsuits in Cook County Circuit Court's Law Division against Viacom, Enterprise Leasing Co., Bret Michaels, Dennis Hernandez and 51 Minds Entertainment.

Witherspoon declined to comment. A Chicago lawyer who worked with him on the litigation, E. Lynette Denton, said the five lawsuits filed by the Jacksons were consolidated into one case. Lawyers for the Jackson and Davis families ended up together in the same mediation session. Each family agreed to settle for $6.5 million, Denton said.

While the Jackson and Davis families were seeking money for wrongful deaths, William and Colleen Wiley were suing for a different reason - to help pay for Colleen's medical bills and suffering.

"Her entire abdomen was crushed," said Patrick E. Foppe, who represented the Wileys along with Kevin L. Fritz, a fellow attorney at Lashly & Baer in St. Louis. "Her injuries were incredible. She's a walking miracle."

The 2008 accident generated headlines in the St. Louis Post-Dispatch , Chicago Tribune , New York Post and celebrity-news website TMZ. Undoubtedly, the accident received some of that attention because of its connection to the reality TV show starring Bret Michaels, lead singer of the heavy-metal band Poison.

"Rock of Love With Bret Michaels" made its debut in 2007, pitting 25 women against one another in a contest to become the singer's girlfriend. The Tribune once called the series "trash-tastic," and the New York Times lambasted it as "carnival sludge."

"These women drink large quantities of booze, caress Bret in groups of three and flaunt their skills at phone sex on national television," Times critic Virginia Heffernan wrote.

By the time of the 2008 accident, filming was under way on the third season of the show, which was now called "Rock of Love Bus With Bret Michaels." Michaels was taking his would-be girlfriends on the road in a tour bus.

Michaels traveled separately from the truck driven by Hernandez, and he was not present at the scene of the accident. According to a report on the Missouri Lawyers Mediawebsite, the accident took place "as rocker Bret Michaels readied a mud pit in Nashville for the women vying for his affections."

After hearing about the crash, Michaels temporarily suspended production of his show.

In a statement released by VH1 at the time, Michaels said, "As a father of two, I cannot even imagine what the families must be going through at this time. I will make every attempt to reach out to them to let them know that my heart and prayers are with them during their time of grief."

VH1 also pointed out that Hernandez was a crew member for 51 Minds Entertainment.

"The crew member, who is not an associate of Bret Michaels or part of his tour staff, was traveling alone to the next location stop for the series," the cable channel noted in its statement.

But three weeks later, when the Davis family filed its lawsuit, Kotin remarked in a news release, "Viacom and VH1 have tried to distance themselves from defendant Hernandez and we expect that they will continue to do so. Nevertheless, this over-tired driver, apparently driving with a suspended license, was on Viacom and VH1 business at the time of this tragedy."

The two young women killed in the accident had performed together in a dance troupe at SIU called Fatal Fusion. Jackson, a resident of Belleville, played the violin and cello and aspired to become a lawyer.

Davis, a 2007 graduate of Walter Payton Preparatory High School in Chicago, was studying to become a pharmacist.

"It was like she was the light of the family," Davis' aunt, Jacqueline Robinson, told the Tribune shortly after the accident. "She was extremely smart and . whenever she walked into a room, she just lit it up."

Davis' parents, who are divorced, separately approached lawyers in the days following the accident. As it happened, the two lawyers they hired - Montgomery and Kotin - already had a history of collaborating on litigation.

"Fortunately, we get along really well," Kotin said.

Sometimes, he said, divorced parents have difficulties working together on a lawsuit like this.

"There can be certain circumstances where it can be very contentious," Kotin said. "But we were able to avoid that, and it ended up benefiting everybody. . It's important here that they present a common front."

The father, Kevin Davis, knew that his ex-wife also was hiring her own lawyer.

"And he was fine with that," Montgomery said.

"His heart had fallen, and he was having a hard time staying in focus because he was so emotionally bruised by what had occurred."

One of the challenges that Kotin and Montgomery faced was trying to show how much money Kevetta Davis would have earned for her family if she hadn't died.

"She was a sophomore in college," Montgomery said. "She hadn't embarked yet on her career, so she had no provable lost earnings."

Punitive damages also were out of the question, since Illinois law doesn't allow punitive damages to be awarded in wrongful-death lawsuits, Kotin said.

If the case had gone to trial, Kotin and Montgomery were planning to ask a jury to compensate the Davis family for the "loss of society" with Kevetta.

It's also possible that the plaintiffs might have proven that Kevetta Davis survived for a brief time after being hit by the truck.

"That would be another element of damage called a survival claim, where a jury would compensate her family for her pain and suffering before she died," Kotin said. "We didn't have a lot of hope in terms of developing a survival case, because her injuries were so catastrophic. It was pretty darn quick. But the issue was still there."

Kotin and Montgomery took a deposition from one of the first police officers who responded to the accident. On the question of whether Kevetta Davis lived past the moment of impact, "that particular officer didn't really help or hurt," Kotin said. "But there were many more people who still could have testified."

Kotin and Montgomery began their own independent investigations of the accident as soon as they were hired by Kevetta's parents.

"There was a pretty thorough police investigation," Kotin said. "I'm sure there are a lot of lawyers that would simply rely on that. But we didn't do that. We went out and made sure everything was done independently, just in case something wasn't accurate with the initial police report."

"This 'Rock of Love Bus' is kind of a party scene, and one of the concerns was this guy [Hernandez] had been up partying all night," Montgomery said. "Being the first to leave the next day, . he may not have been of proper mind. We are aware that there was some [marijuana] found in his blood."

Since the defense attorneys won't comment, it's unknown why they sought an early settlement. Kotin and Montgomery said they believe one motivation was avoiding bad publicity for Viacom and VH1.

"Anybody that has seen that show would probably have a pretty good idea about what might have been going on with that driver in the day and hours before this crash," Kotin said. "And even though that might not have been admissible evidence at trial, people think."

"You certainly could have an angry jury come out of this . if you've got jurors aware of what the 'Rock of Love Bus' is," Montgomery said. "It's nothing that we can foretell . but certainly if I were on the jury, I would be very angry with what happened here."

Meanwhile, in St. Louis, Fritz and Foppe were moving forward with their own lawsuit, representing the Wileys.

William Wiley, who was 63 at the time of the crash, suffered broken bones in his wrist and a fractured rib, as well as other injuries. But his wife, Colleen, who was 59 at the time, was more gravely wounded, with injuries to her shoulders, back, neck, chest, pelvis, legs, knees and hands.

After being extricated from their vehicle, the Wileys were flown to Barnes-Jewish Hospital in St. Louis. During Colleen Wiley's five months of hospitalization, surgeons had to remove her gall bladder, spleen and parts of her liver and intestines, Foppe said. She experienced cardiac arrest six times and had a stroke, he said.

William Wiley, who is an attorney, contacted the Lashly & Baer law offices a couple of days after the accident, Foppe said.

"Finding out what happened was important for him," Foppe said. "Mr. Wiley didn't have a clear recollection. He was in the hospital, dazed, wondering if he had done this to his wife." (William Wiley did not return a phone message requesting an interview.)

Foppe said his firm quickly launched an investigation of the accident. The evidence made it clear that the Wileys bore no responsibility for the crash, he said.

The law firm's investigators photographed the accident scene, measuring the marks left by tires. They interviewed witnesses and double-checked the information that the Illinois State Police was gathering on Hernandez. And they examined the electronic data stored on the vehicles, Foppe said.

"On a pickup truck, the most critical piece of data is the airbag computer chip module," Foppe said. And so the investigators checked that data on the pickup truck that William Wiley was driving. It showed the speed Wiley had been going and when he hit the brakes.

That data demonstrated that Wiley had virtually no time to respond before being hit by Hernandez's truck, Foppe said.

"It was like a missile coming across the road," Foppe said. "No time to react."

Foppe said it's crucial for attorneys to preserve this sort of evidence as soon as possible.

"That data isn't stored forever," he said. "It's something people don't think about until a lawsuit is filed, and by that time, the vehicle is sold off for salvage."

Like the lawyers in Chicago, Foppe and Fritz believed that Hernandez's employer, 51 Minds, and Viacom should be held responsible for the crash.

Unlike the Chicago lawyers, the St. Louis attorneys had a chance of getting punitive damages, since they were representing clients who had survived the accident. And they believed they had the sort of evidence that could persuade a jury to award punitive damages, Foppe said.

"It became clear that Mr. Hernandez . had been working very long hours the week before the accident - 12-hour days," Foppe said.

The rental truck Hernandez was driving had a weight rating of more than 12,000 pounds, which meant that it was required to follow commercial truck regulations, Foppe said. Among other things, the law required Hernandez to keep a log showing what hours he was driving. According to Foppe, Hernandez failed to do that - and on top of that, he was driving without a valid license.

"He had a very colorful driving record," Foppe said, adding that he believed he could prove that Hernandez had smoked marijuana within a "relatively short time period" before he hit the road in his truck.

Criminal charges are still pending against Hernandez. C. Stephen Swofford, an assistant state's attorney in Franklin County, said Hernandez is scheduled to stand trial in October on two counts of aggravated driving under the influence of cannabis, but the trial might be postponed until November. Hernandez, who is free on bail, could be sentenced for up to 28 years in prison if he is found guilty, Swofford said.

Last year, defense attorneys said they wanted to go to mediation to seek a settlement in all three of the lawsuits resulting from the crash. Donald P. O'Connell, the former chief judge of the Cook County Circuit Court, served as the mediator for the Jackson and Davis lawsuits in Chicago.

"Everyone gathers in one big room," Kotin said. "Oftentimes, the parties like to put on a dog-and-pony show, to put on the highlights of their case. I don't ordinarily like to do that. I'll just save that for trial. In this mediation, I don't think anybody put on any kind of a presentation. We simply greeted each other and then went off into separate rooms."

Montgomery said he began the day seeking a settlement of about $10 million.

"The mediator works each side separately," he said. "There's a little bit of shuttle diplomacy going on. If you can get to a number both sides can live with, and think it's right, then you have a settlement."

The mediation lasted for most of a day. By the end, everyone agreed on a settlement of $6.5 million for each family. The defendants paid the settlement through their insurance companies, AIU Holdings Ltd. (formerly AIG) and Fireman's Fund.

The mediation in the Wiley lawsuit in St. Clair County also lasted one day. The two sides did not agree on a number at the end of the session, but the defense attorneys contacted the plaintiffs a few weeks later and agreed to pay $16 million, Foppe said.

Foppe praised the defense attorneys for their professional approach.

"We were able to amicably resolve discovery disputes," he said.

Kotin echoed that comment.

"We've got to give credit to certain lawyers on the defense side of the case," he said. "I think John Bell over at Johnson & Bell, who had the primary defendants in the case, was a large reason that this case was able to move to mediation so quickly. He realized early on that they didn't have much of defense to put up here - and that prolonging this and delaying this any further would do nothing other than cause a lot of pain and grief."

Foppe said the settlement is helping Colleen Wiley to live with the devastating injuries she suffered in the crash. Foppe said he hopes the lawsuit serves as a warning to companies about the importance of following safety regulations for commercial trucks.

"They need to take note of the state and federal regulations, to make it safer for everybody," he said.

Kotin and Montgomery declined to make Kevetta Davis' mother and father available for interviews, but they said they believe the parents felt some justice was served by the settlement.

"I think so," Kotin said. "It's always a bittersweet ending. Sometimes in a tragic death, the ongoing lawsuit keeps everything a little bit fresh. And then, when the lawsuit is over and the money is paid out, and you shake hands and say goodbye to your clients, it's over. That person is gone and you move on to a different chapter. It's a tough day."

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