Karen Kidd Mar. 29, 2016, 11:53am


HARRISBURG – A Dauphin County Court of Common Pleas judge is being asked to order a new trial after a jury ruled for defendants in December in a lawsuit over the 2005 motorcycle death of a Lower Paxton Township woman.

Attorneys for James Anderson, husband and administrator of the estate of the late Vickie Anderson, are asking Dauphin County Common Pleas Court Judge Andrew H. Dowling for a new trial in a case in which jurors found for the defense in December.

The plaintiff’s attorneys claim mistakes were made during the trial - mistakes that were brought up and also pointed out during that trial, and that there was a call for mistrial over those mistakes that was not granted.

"The law in the Commonwealth is clear that contributory and comparative negligence are not defenses to a strict liability action," the motion for post-trial relief says.

"Moreover, as the only Plaintiff seeking damages as against the tire Defendants was the Estate of Vickie L. Anderson, and, as Vickie Anderson was a passenger on the motorcycle, the Court should not have permitted any statements, arguments and issues of comparative negligence concerning the conduct of James A. Anderson Jr. and/or Vickie L. Anderson to be communicated by defense counsel."

James Anderson, acting as administrator of his wife's estate, had sought $887.13 in past medical costs, $6,110.92 in funeral expenses and $1,154,975 in past and future lost earnings, as well as damages under the state's Wrongful Death and Survival Acts. Named as defendants in the lawsuit were LeMans Corp., Pirelli Tire, AGV Lazer USA, Susquehanna Valley Harley-Davidson and Harley-Davidson Motor Co.

After nine days of trial and 90 minutes of deliberation, the jury found for the defendants against the plaintiff's claims of design and manufacturing defects, breach of implied warranty, and negligence.

Vickie Anderson died May 29, 2005, when the rear tire blew out on the Harley Davidson Ultra Classic on which she was a passenger and her husband was driving. James Anderson lost control and Vickie Anderson was thrown from the motorcycle and suffered head trauma that killed her.

During trial, both sides had their own tire and helmet experts, in addition to conscious pain and suffering experts. Anderson testified his wife had remained conscious about 10 minutes, and the estate's forensic pathology expert opined that Vickie Anderson suffered conscious pain and suffering.

However, the defense's own forensic pathology expert said she would have become unconscious upon impact and would have suffered no conscious pain and suffering in the time leading up to her death.

The defense also was allowed, over plaintiff's repeated objections, to introduce evidence about whether James Anderson was in some way negligent in his wife's death, according to the post-trial motion, which quotes directly from the trial's transcript. "Your Honor, over plaintiff's objection, the Court permitted the jury to hear an abundance, a plethora of evidence of negligence, evidence as to blaming this accident on Mr. Anderson, on issues dealing with assumption of the risk, which really became the focus of not only their opening but also the cross-examination of almost every witness prior to [plaintiff expert] Mr. [Gary] Derian.

"Today Your Honor ruled that this is a strict liability case, that your - the issues of negligence and issue of assumption of risk will not be going to the jury. This jury is so tainted and plaintiff so prejudiced."

To which Judge Andrew Dowling replied, "Well, let me just correct that. I said that I'm looking at that issue. I'll make that decision at the time we have our charging conference. But I didn't make any final determination on that."

To which the plaintiff's attorney is quoted as reminding Dowling that Anderson was acting in the case only as the estate's executor and, as such, was not on trial.

Dowling then is quoted to have said, "What's your motion?"

"It's a motion for mistrial, Judge," the plaintiff's attorney replied.

Dowling denied that motion, according to the quoted trial transcript.

In the post-trial motion filed earlier this month, the plaintiff argues that the case's standard of review has been met because legal mistakes were made during the trial, which mean's Anderson's lawsuit should receive a new trial.

"Plaintiff suffered great prejudice and irreparable harm by the Court permitting the Defendants to raise and argue defenses concerning the conduct of James A. Anderson and Vickie L. Anderson," the post-trial motion said.

"As the Court erred as a matter of law and/or abused its discretion permitting Defendants to raise and argue negligent issues, including but not limited to the conduct and reasonableness of James A. Anderson Jr. and/or Vickie L. Anderson, which resulted in great prejudice and irreparable harm to Plaintiff, Plaintiff request that this Post-Trial Motion be granted."

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