Tourists seek $100,000 from city of Mitchell for bus accidentDuring first day of trial, city's attorney sets number about $60,000 lower
By: Tom Lawrence, The Daily Republic
There’s a difference in opinion of at least $60,000 on how much a Kansas couple deserves to receive for medical expenses and suffering after a 2009 accident in downtown Mitchell.
The lawyer for Richard “Rex” Russell and Mary Ellen Russell asked a Davison County jury for $100,000 during his opening statement in a civil trial that opened Tuesday morning at the Davison County Courthouse.
The lawyer representing the city and the former Palace Transit driver who struck the Russells as they walked in a downtown crosswalk said the couple should be compensated for their medical bills, which total about $16,000, and receive a maximum of $21,500 for pain and suffering. That would be a total settlement of nearly $38,000.
The city and the driver, Julie Payne, are both named as defendants. Payne no longer works for the city and was not in the courtroom Tuesday.
The jury is expected to come up with a settlement figure at the conclusion of the trial, which is scheduled to be completed today.
The Russells were struck by a Palace Transit bus while they tried to cross the street at the intersection of North Main Street and Seventh Avenue, near the Corn Palace, on June 18, 2009. The trial opened Tuesday, nearly three years later.
Thomas “T.J.” Von Wald, the Sioux Falls lawyer representing the Russells, said his argument was relatively simple.
“This case is about broken bones, broken dreams and life never being the same,” Von Wald said in his opening statement.
Douglas Deibert, the Sioux Falls lawyer representing the city and Payne, said while Von Wald made a “very dramatic” opening statement, his take on the case was “significantly different.”
“I just ask you pay attention to the real facts,” Deibert said in his opening statement.
There is no doubt that Palace Transit driver Julie Payne made a mistake and the Russells were knocked down and injured, Deibert said. They were treated at Avera Queen of Peace Hospital and discharged within a short time, he said.
“Despite what Mr. Von Wald argues, these were not significant injuries, thankfully,” Deibert said.
According to Von Wald, Rex Russell suffered a slight concussion, bumps, bruises and scrapes, while Mary Russell suffered broken bones in her right hand and a laceration on her elbow in the accident.
The Russells were returning home after a camping trip in the Black Hills, Von Wald said, when they stopped in Mitchell. They had seen the Corn Palace on TV and wanted to tour it in person.
Mary Russell said they parked their pickup and were walking south to the city-owned facility when they were struck by the bus in the crosswalk.
She said she heard “three distinct definite noise patterns” right before they were hit by the bus. Russell said she thinks she put her right hand up, and that’s when it was injured.
“I don’t know if I flew in the air, but I must have,” she said. “It was like everything shook. It was just a weird, horrible … not one pain. It was like being dropped from a rooftop … it was just unreal, such a shocking numbness.”
Her entire body hurt, Mary Russell said, and she landed on her back, unsure if she could move, her eyes closed.
“This is what dying feels like,” she thought, according to Von Wald.
Rex Russell said he has few memories of the accident and cannot recall any noises or images. He doesn’t even recall hitting the pavement or being taken to the hospital.
The couple was taken by ambulance to Avera Queen of Peace, where they were examined, treated and released.
Rex Russell said he was “really hurting, especially on my back where I was laying on the board” and wanted off the backboard to ease the pain. He also had “road rash” on one of his arms, he said.
Their departure from the hospital had an ironic twist.
They were unable to drive their vehicle, and when a Mitchell police officer was unavailable to give them a ride, Palace Transit took them to their hotel.
Mary Russell said while the driver was very helpful and pleasant — “Everyone was,” she said — she was amazed how much Palace Transit drivers have to do while operating the bus. She said they were taking notes and talking to a dispatcher, for example, while driving.
That night, Rex Russell said he was in pain and generally felt terrible. The couple had a difficult time sleeping that night, both said, and Rex Russell had to be awakened every hour to ensure there was no serious damage from the concussion.
Two of their three adult sons, Jay and Jeff Russell, came from Kansas to help their parents return home.
The next several weeks were difficult for both, Von Wald said, but especially for Mary Russell, who was on pain medication. She spent most of her time in bed or on the couch for a week and was unable to use her right hand for much at all.
The injuries and pain caused stress for both, their lawyer said.
Finally, Mary Russell saw an orthopedic surgeon. She was diagnosed with a crush-type injury in her hand and a cast was placed on it. Later, the cast was removed and a splint was applied.
Her grip strength “was gone,” Von Wald said, and her range of motion was greatly reduced. Mary Russell is right-handed.
She also suffered back pain that was “constant, throbbing and dull-achy,” Von Wald said.
Mary Russell saw a chiropractor in an effort to alleviate the pain and allow her to return to normal activities.
Before the accident, she walked three miles almost every day, but after it, she found walking caused her pain. Routine household chores she once did with ease are now difficult to complete, said Mary Russell, who is now 68 and was 65 at the time of the accident.
Rex Russell, who is 70 now and was 67 when the accident occurred, has also sought further medical attention. He was given treatment for his neck and lower back and a series of exercises was recommended.
Rex said his pain has ended and he feels he has no physical limits. But he said he doesn’t feel like doing as much as he used to, and isn’t sure if that is due to the accident or his advancing age.
Both saw their treatment end in October 2009, but their lives were altered forever, Von Wald said.
They sold their fifth-wheel camper, not wanting to use it anymore, according to Rex Russell. However, Deibert said Rex Russell told him last fall during a deposition that selling the camper was not linked to the accident.
As they recovered, Mary Russell said she was cautious with her right hand and unable to do routine chores without pain. Using a computer causes her discomfort, she said, and her right hand often tightens in a ball now, she said.
Even shaking hands was difficult and painful, and after a career in financial services, that was a major loss, she said.
Mary Russell said she remains nervous in traffic, in parking lots and while crossing streets since the accident.
Rex Russell said he found himself apprehensive while driving and backing up.
“Life is not the same for those two,” Von Wald said.
Mary Russell’s medical bills totaled $10,874.38, while Rex Russell’s bills totaled $5,826.62.
Von Wald said a “fair amount” to compensate the couple is $30,000 for Rex Russell and $70,000 for Mary Russell. The city is in the state municipal risk pool, which would cover the cost of the settlement.
Deibert told the jury there was more to the story than what the plaintiffs claimed.
Mary Russell had a prior fracture of the same hand, he said, and Rex Russell had two previous back surgeries.
Those surgeries for bulging discs took place in 1972 and 1982, long before the accident, Von Wald pointed out during Rex Russell’s testimony.
Deibert said the evidence indicates the Russells didn’t suffer severe injuries. They “rapidly improved” from the injuries caused by the accident, he said.
A chiropractor who testified via a recording said they were completely healed when he released them from his care in October and said they suffered no permanent injuries.
In August 2009, two months after the Mitchell accident, the couple took a cruise, Deibert said. Mary Russell fell during that cruise, fracturing a bone in her ankle and aggravating her wrist injury.
Rex Russell said it seemed she was unable to use her right hand to grasp the rail and perhaps stop herself from falling, or lessen the damage.
Mary Russell said they had paid for the cruise prior to the accident and either had to take it or lose it. She said they took part in few activities during it, but said she doesn’t intend to allow pain to stop her from being active.
“I worked my entire life to travel,” Mary Russell said.
The city’s attorney said the Russells seem healthy and capable of living their lives normally. Deibert said the damage doesn’t seem to have been too severe.
He said they only bought prescription medicine once, the day after the accident, and the bill was for less than $4.
By July 18, 2009, Mary Russell could make a full fist and was recovering, according to a doctor who treated her, Deibert said.
He asked the juror to look at them. Both can sit, stand and walk, as shown by their presence in the courtroom, Deibert said.
In fact, the trial was postponed once because they were on another cruise last fall, he said.
Deibert said after repeated chiropractic treatments — 21 for Mary, 17 for Rex — both were deemed in good health. They remain active and enjoy a good life, which Mary confirmed from the stand.
She is a retired financial consultant; Rex is a retired rural mail carrier and farmer. Those careers may have caused some of the pain Rex Russell felt, Deibert said.
However, Mary Russell said the accident remains a permanent issue in their lives.
“There’s not a day goes by I don’t think about it,” Mary said. “There’s not a day goes by I don’t have the physical effects of it.”
Rex Russell said his wife is weaker than she used to be and he feels the accident caused that. It altered their lives for the worse, he said.
Mayor Lou Sebert, representing the city, sat at the counsel table with Deibert. Mitchell Human Resources Director Billie Kelly and Brenda Paradis, who directs Palace Transit, were in the audience.
A panel of 13 jurors, six men and seven women, was selected Tuesday morning. Only 12 will cast votes in the case. First Circuit Court Judge Timothy Bjorkman, of Salem, is presiding.
Chiropractor Brent Lukert, of Sabetha, Kan., testified via a video and audio recording made when the two lawyers traveled to Kansas to interview him in October.
Dr. Brett Miller, an orthopedic surgeon from St. Joseph, Mo., will testify by the same method today. Judge Bjorkman told the jurors the evidentiary portion of the trial is nearly over.
The Russells were headed to the Corn Palace when they were struck by the bus. They still have never seen it up close or toured it, they said during a break in the trial.
“Maybe after all this,” Von Wald said.