Virginia Lawyers Weekly

In January 2006, two men driving on Interstate 64 both were killed in a fiery head-on crash in Goochland County.

The estate of one man filed suit against the estate of the other driver. But the defendant’s lawyer filed a counterclaim and went home this month with a $1 million jury verdict.

The case was confusing from the start.

The state police initially identified one of the drivers as driving the wrong way. Then they issued a retraction. Information was slow in coming out. Three apparently credible witnesses said one thing, only to be contradicted by a forensic report that was ordered belatedly. A toxicology report showed one driver with a .25 blood alcohol content.

The twists and turns began late one night on a dark stretch of I-64 near Oilville. Both drivers were alone in their SUVs.
Douglas Cowan of Goochland, a 37-year-old General Electric salesman, was headed home to his wife and children from the Richmond airport after a business trip. He was driving a white Chevy Trailblazer.

Also on the highway, driving a red Ford Expedition, was Dale Campbell, 52, of Norfolk. The construction manager was said to be travelling to visit his mother and daughter in another state.

Witnesses all agreed that one of the SUVs was going the wrong way at full speed before the collision. When the crash vehicles came to rest, however, both cars were facing the right direction. Both drivers were dead, the two SUVs were on fire.

According to James F. Neale, the Cowan family’s attorney, the eyewitnesses at the scene were almost unanimous that the white SUV – the Cowan vehicle – had been going the wrong way. Apparently, that was enough for the on-scene police investigators, who pointed the finger at Cowan in an initial news release. News reports about that conclusion, however, led another witness to come forward, and ultimately forensic teams performed accident reconstruction and reversed the police findings, blaming Campbell for the wreck.

The revised investigation was supported by the toxicology finding indicating that the Campbell was drunk. Cowan had no intoxicants in his system.

Nevertheless, armed with three strong eyewitnesses and the knowledge that Virginia courts disfavor accident reconstruction testimony, Campbell’s estate filed suit.

Defense attorney Neale made the decision to counterclaim against Campbell’s estate. “One party was very clearly a villain. I just thought that there would be jurors who would be reluctant to walk away without assigning liability. I wanted the jurors to have the ability to decide who was at fault.”

The lawyers fought protracted battles to get to trial. A punitive damages claim was struck, a venue motion was granted, and the judge refused to allow the plaintiff’s theory of “post-mortem alcohol diffusion” supported by a toxicologist and a medical examiner.
At trial, Neale focused on the evidence of intoxication. He used toxicologists Alphonse Poklis of VCU and Joseph Saady of the Virginia Department of Forensic Science.

Campbell’s counsel used a PowerPoint presentation illustrating the positions of three supportive eyewitnesses, and fought to discredit the implications of the toxicology evidence.

In contrast with the Campbell PowerPoint, Neale and his colleagues used a whiteboard with a road diagram. To depict the vehicles involved, the defense hired a model maker to create small versions of the autos that would stick on the white board with small magnets.

The model maker even studied photos and diagrams and then used heat to melt the victims’ cars to conform to their appearance after the crash. Neale said the judge allowed the models for demonstration only, but excluded them from evidence.

After a three-day trial in Goochland County Circuit Court before retired Judge Paul M. Peatross, the jury found in favor of Cowan’s family and awarded $1 million on the counterclaim.

Campbell had no insurance to satisfy that verdict, but Neale said that the verdict should help with his client’s uninsured motorist claims.

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