AIN'T OVER 'TIL THE FAT LADY SINGS, OR HOW A 2.1 MILLION DOLLAR VERDICT CAN BE WON BY AN INVESTIGATOR DURING TRIAL

After nearly four years of lawyer, engineer, and Florida Highway patrol scrutiny, a legal investigator on the fourth day of trial, armed with only a photograph and a computer solved a wrongful death case and brought closure to a grieving family and a 2.1 Million dollar verdict from a Polk county jury.

Brian Barton of Brian J Barton Investigations, contracted to help Michles and Booth Law Firm on a week long trial and was expected to testify as a rebuttal witness on a limited point but turned out to be a key player in solving a riddle that escaped all other observers for years. "Working with Marcus (Michles) is always an exercise in sleep deprivation," said Barton laughing, "I'm not sure the man ever sleeps so we had a lot of very late nights working on the file. One night I got to messing with the pictures and working the zoom feature on the photo suite for his PowerPoint cross examination of the opposing expert and we began to put the pieces together over a couple of days." Diligent work, examination of wiring diagrams, design schematics and a couple of trips to the local Ford dealer led to a last minute introduction of evidence that was worthy of a television drama. On a clear Saturday afternoon on a straight, two lane road in Polk county fifty five year old Clarence Waddell and his 1993 Ford Ranger pick up truck was crushed between a 10 ton flatbed Mack Truck owned and operated by Exceletech,Inc. and a 26000 pound slow moving watering truck owned and operated by S&S Sod, Inc. The Florida Highway Patrol Homicide Investigation Unit determined that Mr. Waddell had attempted to pass the Exceletech truck and had misjudged his reentry into the northbound lane, clipping the Exceletech truck, causing a clockwise rotation of the pickup, which then slamed into the back of the watering truck. Mr Waddell's truck was compressed, rolled, exploded and burned Mr. Waddell beyond recognition.

The plaintiff's expert's reconstruction of the accident, combined with close scurtiny of what was left of Mr. Waddell's truck, led Michles and the plaintiff's legal staff to conclude that in fact the initial point of the collision was not as the FHP had concluded but was instead to the left rear of the pickup truck, suggesting that Mr. Waddell had either successfully completed his pass or was simply rearendded by the Exceletech truck for unknown reasons. This of course conflicted with the only surviving eyewitness account which was that of the Exceletech driver Elmer Jenkins who recalled seeing a flash to his left as the vehicle cut in front of him

Following nearly four years of discovery including several expert opinions as well as video recreations, culminating in a week long trial in Bartow, Florida and a remarkable series of events which suggest once again the dynamic nature of civil litigation and the difference a talented investigator can make in a case. "Brian was relentless, and what he gave the Waddell family and our firm was truly special", said plaintiff's co-counsel Jim Barnes. "Literally while Marcus was cross examining the defendant's expert I was in the hall with a laptop computer showing Brian's work to the homicide investigator and convincing a Florida Highway Patrolman that he had it wrong in his report- no easy task, I assure you"

Brian Barton, a retired Pensacola Police Officer and prior homicide investigator was retained by Michles and Booth for the purpose of providing rebuttal testimony to the defendant's reconstruction expert. He was retained as well for the purpose of transporting and maintaining chain of custody of the Waddell vehicle for the duration of the trial. The vehicle was actually used during the trial as expert testimony was elicited outside the courthouse at and literally on the actual vehicle as both sides sought to have their experts discuss and use the property damage directly with the jury. Of critical Importance was where the initial point of impact was to the Waddell vehicle and of particular significance was the Homicide report which noted that the right rear taillight of the pick up truck was found lodged in the front grill of the Exceletech truck. This obviously supported the defence position and the conclusion of the Florida Highway Patrol that the Waddell vehicle had been struck in the right rear. Unfortunately, the Exceletech truck had been destroyed before anyone other than the FHP had a chance to examine that vehicle. Although photographs of the truck were taken by the homicide investigator none displayed the critical tail light, and at the depositions of the troopers none could identify from the pictures any such taillight.

On the second day of the trial Michles and Barton began to theorize that the fire would have melted the plastic on the right side of the truck and not the left side. This was supported in part by the wiring to the light which was intact, with the insulation melted away. If they were Correct the tail light referenced in the homicide report could not have been the right tail light as the troopers had concluded. During trial they set out to prove their theory. Using their computers and some photo enhancement software, the photos of the front of the Exceletech truck were slowly enlarged several hundred times until a black object was visible in the grill. What was seen did not resemble a tail light and had been severely damaged in the impact. "I was pretty sure what we were seeing was a tail light, upside down and reversed, but Marcus was not convinced", said Barton recalling the Tuesday night meeting. "He (Marcus) didn't hesitate though and sent me to the Ford dealership for schematics and even wanted me to buy, if possible, the parts and the wiring harness for the truck".

On the Wednesday of trial and while the homicide investigator was testifying that Mr. Waddell was fully responsible for the accident and his own death, Brian Barton was visiting the Lakeland Ford Dealer for parts. That night the trial team determined that the object could well be the back of a tail light - but which side, right or left, remained a mystery. "Unfortunately' 93 was the last year this particular tail light was used so the dealer didn't have a tail light for that year, all I could get was the diagram and drawings", said Barton. On Thursday Brian again visited the Ford dealership and this time purchased a left rear tail light. " I told them I worked for a madman and I was going to get fired if I didn't come back with a tail light. ( Is Marcus going to read this)," said Barton laughing. That night the pieces were assembled - the wrecked truck, computer enhancement and the light. The conclusion was unavoidable _ the light was the left (not right) tail light of a 1993 Ford Ranger Pick up Truck.

"The concept of recalling the trooper as a rebuttal witness for the purpose of rebutting himself was new to me and obviously the defence counsel went nuts, contending that we had set them up with surprise testimony. The Judge was very concerned as well but fortunately we had the receipts evidencing that days purchase of the light. Following a heated proffer, the judge allowed a stipulated correction of the accident report with respect to which tail light it was. After 4 hours of deliberation the jury arrived at the correct conclusion in my opinion," said Michles. "What was that part again about the madman....."

By Marcus Michles of The Michles & Booth Law Firm in Pensacola Florida