San Luis Obispo County sheriff’s candidate Ian Parkinson has been criticized in recent weeks for not disclosing 10 years ago during a civil trial that one of the plaintiffs bringing the wrongful-death lawsuit — for which he was called as an expert witness — was his sister-in-law.
Critics have questioned whether it was a conflict of interest for Parkinson to testify.
However, several legal experts said an expert witness does not have a responsibility to disclose bias. Rather, they said, it is the opposing attorney’s job to investigate, establish whether bias could exist and determine whether to raise the issue at trial.
Parkinson, a San Luis Obispo police captain, was hired by a local plaintiff’s attorney as an accident-reconstruction expert to discuss the mechanics of a fatal collision near King City that had killed 62-year-old Ted McCormack, his sister-in-law’s father, in 1998.
A review by The Tribune of court documents in McCormack v. G&H Farms and the court reporter’s transcript of Parkinson’s testimony during the trial show that he did not discuss his tie to one of the plaintiffs, Rita Tavernetti, nor was he asked about it.
Tavernetti, Parkinson confirmed to The Tribune, is married to his wife’s brother.
After the trial in Monterey County Superior Court in 2000, the jury awarded the family nearly $1.4 million, according to court documents.
Plaintiff’s attorney James Murphy, who hired Parkinson to testify in the case, said that Parkinson told him he was related by marriage to Tavernetti. Murphy, whose office is based in Arroyo Grande, said he disclosed the information to defense attorney Frank Cunningham, who died about two years ago.
Parkinson said Tuesday that his testimony in the case was based on physical evidence and did not address who was at fault in the collision.
“We didn’t conceal it from them,” Parkinson said of his relationship to Tavernetti. “If I knew that 10 years later I would run for sheriff, would I do it differently? Yes, I would make sure it was on the record that we disclosed it.”
Ted McCormack was driving a green pickup southbound on a frontage road near King City on May 14, 1998, about 7:50 p.m. A white Ford F-150 pickup towing a trailer loaded with irrigation pipe was headed north on the frontage road. Both the trailer and the pipe were owned by the defendant, G&H Farms.
As the vehicles were about to pass, the trailer became disconnected from the pickup, swerved into the southbound lane and crashed into McCormack’s truck, driving several pieces of irrigation pipe though the windshield and striking McCormack in the head.
McCormack’s truck then traveled down the road, rolled into a reservoir about a quarter mile away, and sank. McCormack died as a result of the collision.
The truck towing the trailer fled the scene.
McCormack’s wife, Helen, his two daughters and a son filed a wrongful-death lawsuit against G&H Farms in September 1999, alleging the company was responsible for McCormack’s death and that the pipe trailer was being moved by a company employee.
G&H Farms argued the pipe was being stolen at the time of the accident, according to a trial management report filed in March 2000.
In fall 1999, G&H Farms had filed a motion for summary judgment — a court order ruling that no factual issues remained to be settled at trial — and the two parties had discussed a settlement of $5,000.
Shortly before an Oct. 29, 1999, hearing date, a private investigator hired by Murphy contacted his office and said he had found a witness who passed McCormack’s truck immediately before the collision and could identify the vehicle pulling the pipe trailer as one owned by G&H Farms.
Cunningham, the defense attorney, argued in court documents that Matthew Hayes’ “alleged identification of a truck he saw towing a pipe trailer does not establish G&H Farms’ involvement in the accident.”
In order to find G&H Farms liable, the plaintiffs had to prove that an employee or agent of G&H Farms was driving the truck in the course and scope of his employment with the company, according to Cunningham’s memorandum in support of the defense’s motion for summary judgment.
Hayes’ testimony was unreliable, the defense argued, because of his relationship with the plaintiffs, and because he did not come forward as a witness for 16 months and until after a reward offered by the family was increased to $100,000.
In a deposition taken on Sept. 16, 1999, Hayes said he signed a document stating he was not interested in collecting a reward and would not accept it. He also said he dated Tavernetti for a few months in high school.
Also at issue, G&H Farms stated in court documents, was that McCormack’s blood-alcohol level tested at 0.23 percent at the time of the accident — a point on which the plaintiffs filed a motion to have excluded from testimony at court, arguing that it was prejudicial and irrelevant because McCormack had no time to react prior to impact. That motion was granted, Murphy said.
Murphy hired four experts to testify during trial: Steve Blewett, a mechanical engineering expert with 38 years’ experience, to testify on how the pipe trailer became disconnected; Robert Post, an expert in human factors, to testify about Hayes’ ability to identify the Ford F-150; Robert Johnson, an expert economist, to discuss the damages; and Parkinson, to describe the manner in which the pipe trailer collided with McCormack’s truck.
Parkinson started working as a traffic accident reconstructionist in 1992 and continued his private business until about six years ago.
He had to receive annual approval from the city to continue his off-duty consulting work, per a legal requirement in the state Government Code pertaining to government workers.
He was paid $150 per hour for his work as an expert witness, and he estimated during the trial that he spent about 35 to 40 hours on the case. Parkinson said he had been retained by Murphy as an expert witness in 12 to 15 cases and that 60 percent to 70 percent of his expert witness work was for defense cases.
During his testimony at the September 2000 trial, Parkinson said he first visited the accident scene 10 days after it happened.
Parkinson walked the jurors through his reconstruction of the collision, explaining his analysis of skid marks, gouges and scrapes in the roadway, according to the court transcript.
Parkinson agreed with Ronald Gilbertson, the chief investigating officer for the CHP, that the collision happened because the truck did not have a safety chain attached to the pipe trailer.
However, Parkinson disagreed with Gilbertson’s conclusion on where the actual strike between the pipe trailer and McCormack’s truck happened. Gilbertson said it happened on the shoulder of the road, Parkinson maintained it occurred on the roadway and testified that McCormack would not have had enough time to respond and avoid the trailer.
Parkinson also testified that he had reviewed a deposition by Cheryl Coppos, who witnessed the collision. She testified that she had seen the trailer impact McCormack’s vehicle on the shoulder of the road, before the truck rolled down the road and out of sight.
Parkinson testified that since Coppos was traveling in a smaller car behind the trailer, her view was obstructed and that she couldn’t have seen the pipe impact McCormack’s vehicle.
Cunningham’s cross-examination included questions about Parkinson’s analysis of the accident, and about his experience investigating traffic collisions. Cunningham did not ask Parkinson whether he knew any of the plaintiffs.
Parkinson testified he had investigated about 3,000 to 4,000 traffic accidents during the nearly 17 years he’d worked as a police officer at the time, and made several hundred reconstructions of accidents since 1990.
“The case was more about who was responsible for the accident than the accident itself,” Parkinson said Tuesday. “I never testified it was G&H Farms’ fault. I was simply giving a foundation for why this guy died.”
As an expert witness, he had an obligation to be objective and base his testimony on fact, he said.
Experts weigh in
Two of defense attorney Cunningham’s former colleagues said they did not know whether he was aware of Parkinson’s connection to the McCormack family.
“I really don’t remember one way or the other if that information was disclosed,” said Jennifer Moon, a defense attorney who represented G&H Farms with Cunningham. “But I can’t believe that if it had been disclosed to Frank Cunningham that he wouldn’t have tried to at least ask a couple of questions about it.”
William Gavin, Cunningham’s former partner who did not work on the McCormack case, added: “It seems to me that this would be a built-in bias or prejudice that the jury should know about and should have been revealed to everybody.”
Parkinson was deposed, but the deposition would have been returned to the attorneys after the trial and records of it have since been destroyed, Murphy said. Gavin said the case file at his office was destroyed four years ago.
John G. Sprankling, a distinguished professor and scholar at the University of the Pacific’s McGeorge School of Law, said he is not aware of any ethical obligation that would prevent an expert witness from appearing in a case in which he knew someone involved.
Although it might be prudent for a plaintiff’s counsel to disclose the connection to a defense attorney, a plaintiff’s attorney does not have an ethical obligation to do so, he said.
“We use an adversary system of justice,” Sprankling said, “and expect that counsel on both sides will investigate and discern the truth.”
A defense attorney could ask questions during pretrial discovery, he said, such as whether the expert witness knew anyone involved in the case.
“If you were a defense attorney and realized there might be a bias it would be a tactical call whether or not you wanted to raise that,” Sprankling said.
An expert witness is required to testify truthfully to any question, but if a defense attorney doesn’t ask a question, a witness is under no obligation to volunteer that information, said Jeff Stulberg, a San Luis Obispo-based civil attorney who also practices criminal defense.
“Simply because you know somebody doesn’t mean that makes them an incompetent or biased expert,” he said. “If somebody doesn’t ask my witness a question that I would ask, that’s the other lawyer’s fault in being less than thorough.”
Blewett, president of Stephen Blewett & Associates in Altadena, was hired by Murphy as a mechanical engineering expert to testify on how the pipe trailer became disconnected. He did not hear Parkinson’s testimony.
He said Tuesday that he would refer a case to someone else if he knew a party involved.“I just don’t like to have the appearance that there might be favoritism,” he said.
However, Blewett said, whether an expert witness should recuse himself depends on the situation. Blewett, for example, said he prepared a report for his niece’s then-husband about five to 10 years ago after the man had been involved in an accident.
Blewett’s opinion — in which he found his niece’s husband was not at fault — was used during mediation; the husband did not prevail in the case, he said.