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Apr 20, 2000

$50 Million Verdict Against Mack a Record for County

Featuring: Robert T. Cunningham

$50 million verdict against Mack a record for county 

April 20, 2000 

By JIM COX 

Jackson attorney Gaines McCorquodale told a panel of Clarke County jurors last Wednesday that he was going to ask for the largest civil judgment ever returned in Clarke County, a value equal to 250 Mack Trucks or $25 million. Co-counsel Robert T. Cunningham of Mobile later said he wondered if $25 million in punitive dumages was enough to send a message to the truck manufacturer about the danger of its product. Although he didn't request a specific amount he said the verdict should "set off a bomb up there in the [Mack] board room in Allentown, Pennsylvania" and make someone "literally head for the bathroom to throw up when they hear about it." 

The trial lasted for six days and jurors took less than an hour April 12 to return a judgment of $50 million for Mary Witherspoon of Morvin, the mother of Mack truck driver Tonnie Witherspoon who was burned to death after his log truck wrecked and overturned in November 1995. It was a one-vehicie accident. 

It is the largest civil jury judgment ever rendered in Clarke County. 

The trailer jackknifed and the truck rolled over, trapping Witherspoon, 33, inside. When firemen and rescuers arrived they talked to him for about 15 minutes as they tried to free Witherspoon. He used a fire extinguisher inside the cab and handed it out to those trying to save him. However, the fire grew so intense that rescuers had to back away and heard Witherspoon's screams as the fire consumed him. 

Ms. Witherspoon's lawyers argued that had Mack had an inertia switch installed on the truck's electrical system it would have interrupted electrical arching in the power system and prevented the fire that claimed Witherspoon's life. The switch is activated by sudden jolts and is the kind used to activate air bags. 

Cunningham noted the number of people who die annually in truck fires and said "not just Mack, but the entire trucking industry has a safety problem that needs to be addressed." He and McCorquodale said that the industry ignored a notice sent out by the National Highway Traffic Safety Administration in 1975 seeking comments on the installation of inertia switches. 

Mack's lawyer Ed Bowron contended that Mack has a safety system in place and that the cab was designed to withstand heavy impacts and weight and did so even when the trailer's lags crashed over it. He said truck rollovers cause 40 percent of deaths in the industry and that of that 40 percent, only one percent are fire related. 

Mack's attorneys discounted the theory that the electrical system caused the fire. They noted several times that traces of gasoline were found in the diesel fuel tank and suggested that made for a dangerous situation that could have increased the chance for fire and explosion. 

It is reportedly a regular practice of some truckers to add small amounts of gasoline to diesel tanks to give diesel engines added zip. It is an illegal practice and manufacturers do not recommend it. 

Regarding the inertia switch, Bowron said it was not practical and that the switch could be activated by a slight bump. Mrs. Witherspoon's attorneys countered that inertia switches are designed to control air bags and that they have to have a hard lick to be activated. 

Both sides presented engineering and accident experts and medical professionals who offered different views on the accident. 

Mary Witherspoon sat at the plaintiff's table throughout the trial but no Mack official was present at the defense table, only a retired engineer who now does consulting work for the company. Cunningham pointed out the absence of anyone from Mack in his closing argument, saying the company was not even concerned enough to have anyone present. 

Grove Hill attomey Lee B. Williams was co-counsel on the case that included out-of-town lawyers. 

None of the defense lawyers would comment on the case for The Democrat during the trial. However, an appeal of the verdict is expected. Mack has 30 days to file an appeal in the case. The jury was composed of six black females, two white females, two black males and two white males. 

The next largest judgment in Clarke County Circuit Court was for $2 million, rendered a few years ago in a land fraud case.

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