Eli Gilbert v. Erik Johnson and Waste ManagementDefense PresentationbyWilliam J. Conroy, Esquire*

Vacant LotWawaBath RoadRoute 413Vacant Lot*

Two Tractor-Trailers Parked in the Lot on the Morning of the Accident*

Waste Management Team Consisted of:Erik Johnson driver of the trash truckGary Ausemore right front seat pssgr in trash truckKevin Richmond driver of trailing pickup truck*

Both Eli Gilbert and Erik Johnson had the right to legally enter the vacant lot

Both pedestrians and vehicles were allowed to enter the lot to use the Goodwill drop-box

*

Overall the parking lot area where the crash occurred is best described as dark and unlighted.Plaintiffs Expert Agrees that the Lot was Dark*

Erik Johnson worked with paramedics Maynard Hathaway and Anthony Correia to remove Eli Gilbert from under the truck

(Johnson Dep., p. 265:1-9)Q. You assisted EMS in extracting him from below the truck?A. Yes.Q. How did you do that?A. Well, they finally decided what they were going to do. I asked for a pair of scissors because I noticed the strings of his backpack were entangled inside the transmission or the gearshift

*

Why They Worked Together that Morning?(Johnson, Dep., pp.150:13-151:1)Q. Why is it that Gary was the passenger in your vehicle that day as opposed to Kevin?A. To help navigate to the particular section we were supposed to be responsible for that day.Q. Did you understand whether Gary was familiar with the location that you were going to?A. Very familiar. He was there -- he's been at Bristol for 15 years, so I felt confident in his ability to navigate me properly.*

Broad OverviewWawaBath RoadRoute 413Vacant LotDirection of travel of trash truck to go to Wawa*

The Vacant Lot

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Police Scene Photograph*

Police Scene Photograph*

Police Scene Photograph*

Eli Gilberts Likely PathEli Gilberts Path from home*

Location of Waste Management Facility - .6 mileVacant LotWaste Management*

911 DISPATCH DETAIL RECORD*

911 Dispatch Report 6:33AM call placed by Erik Johnson2:49 into the call, (6:36AM) Dispatch learns that a Pedestrian was struck4:00 into the call, (6:37AM) Gilbert is not responsive to Johnsons questions4:45 into the call, (6:38AM) Johnson says Eli Gilbert was not run over by the wheels4:12 into the call, (6:38AM) EMS dispatched3:24 into the call, (6:37AM) Richmond overheard in background speaking to WM Dispatch*

Erik Johnsons Hand-Written Statement*I told Kevin, the person following to call a supervisor and then I called 911 @ 6:33 AM

Bristol Township Police Determined the Point of Impact and Point of RestBath Road78.1 ft from Left curbside corner of entrance to the vacant lot to the point of impact Area of ImpactPoint of Rest*

Officer Lyons Arrived at 7:04AM Took Erik Johnson for Blood Test and to Station for a Statement*

Erik Johnsons Hand-Written Statement*

Kevin Richmonds Statement to Officer Shallcross*

Kevin Richmonds Statement to Officer DiGregorio*

Gary Ausmores Statement to Officer Shallcross*

Officer Eklunds Conclusions from Police Accident Reconstruction Report*

ERIK JOHNSONS OBSERVATIONS*

Why was Erik Johnson Going to Wawa?(Johnson Dep., 151:14-152:1)Q. Where were you planning to go?A. Originally Dunkin' Donuts.Q. Okay.A. So we proceeded towards Dunkin' Donuts and we felt that Wawa -- we had a -- I had a change of mind and we both agreed that Wawa would be a little bit better. It's well-lit, more familiar area. I wasn't sure of where a Dunkin Donuts was. Just one I knew that was -- would eventually be on the way.*

What Route did Erik Johnson Take to Reach the Wawa?Q. Okay. Describe for me the route that you took to -- in the direction of the Wawa that morning?A. Well, after we had gone down North 413, I had made a U-turn in a McDonald's parking lot to safely navigate so that way it wasn't -- plus with the size and scope of the truck, there was no way I could have done it any other way.Q. Where was the McDonalds parking lot where you made the U-turn? Where was that located?A. A little bit -- I'd say a quarter mile north of the Wawa in question.Q. On Route 413?A. Yes. (Johnson Dep., 152:2-18)*

Why Did Erik Johnson not Park at Wawa? Q. What was your thought process with regard to parking in the Wawa parking lot?A. At first I assessed the situation of time and busyness of the Wawa parking lot. There had always been people starting to pull in and there was a lot of heavy foot traffic from people that were already parked exiting vehicles entering the store. So I figured that it was going to be -- when I couldn't make a left turn into Wawa physically, and so I decided that seeing I -- at the time semi trucks parked there, that it was an empty lot and it would be safer based on my experience and knowledge at that time to park or make a turn here where it was empty and then safely proceed if it was in my best interest, which I decided when I got into the parking lot it was becoming too crowded for a vehicle since there was already vehicles already inside the parking lot and trucks. (Johnson Dep., 158:2-24)*

Why did Erik Johnson Turn into the Vacant Lot?Q. When did you become aware that that parking lot existed?A. Well, I had mentioned to Gary that, you know, the Wawa is kind of busy. Is there anywhere else we can park or go to?Q. Okay.A. And he suggested this parking lot. (Johnson Dep., 161:15-23)*

Erik Johnsons Testimony Regarding his Speed on Bath Road (Johnson Dep., 169:23-170:5)Q. Can you give me an approximation of how fast you were going along Bath Road prior to making -- prior to beginning to make a left in the parking lot?A. 20 to 25 miles per hour, I would say.

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Erik Johnsons Testimony Regarding Where He was Looking Turning into the Lot(Johnson Dep., 173:6-175:4)Q. Where were you looking? A. Forward and through my headlights.Q. You were looking forward along your -- when you say with the headlights, what do you mean?A. The illumination of the headlights. Try to see if I can scan anything more above the headlights where the beams end.Q. Were you scanning your mirrors as you were making a left turn into the parking lot?A. No.Q. Other than looking straight ahead along the headlight beam as you were making a left turn into the parking lot, did you look in any other direction as you were making that left turn?A. No, I was just focusing on what was ahead and making the left turn.

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Johnson Was Scanning the Lot for HazardsQ. Were you scanning for obstacles anywhere other than straight ahead?A. I try -- I look -- scan from left to right.Q. How did you scan from left to right?A. Well, as a professional driver, with my experience, it's a natural habit to look from left -- your side window, try to as best you can scan as a half -- or a half-moon so to speak direction. You scan the scenario in front, sides best you can. You're using peripheral vision also. (Johnson Dep., pp. 177:21-178:11)*

Johnson Did Not Observe Any Hazards in the LotQ. You said that as you entered the parking lot, you were scanning for hazards. Did you observe any hazards?A. Not that I could see directly in front of me, no, or the sides.Q. At any point from the time that you entered the parking lot until you came to a rest, did you observe any hazards?A. No. Q. Did you observe any potholes? A. I felt the pothole, but I didn't see the pothole.- (Johnson Dep., pp. 181:14-182:4)*

Johnsons Reaction to Hitting the Pothole(Johnson Dep., 186:19-187:10)Q. So once you hit the first pothole, what did you do with regard to your speed?A. Well, I just again decelerated from what I was -- at my turn-in speed, which I don't know. I covered my brake with my foot, again due to my training and experience, slowed the truck even more and kept my foot over the brake as to anticipate or try to anticipate any other potholes or anything that may pose a possible threat.Q. And once you hit that first pothole, you decelerated?A. Even more than I did making my initial turn, correct.

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Erik Johnson was Unable to Estimate or Guess as to his Speed

Q. As you were preparing to turn left into that adjacent parking lot, how fast were you going? A. I don't know. I don't have an approximate speed or even a guess. (Johnson Dep., 169:2-6)Q. Once you enter the parking lot, at what speed are you traveling?A. Actual, speed I can't recollect. I don't know. But I did take it very slow. I know that for a fact. (Johnson Dep., 185:12-19)Q. Can you give me an approximation of how fast you were going as you were turning into the parking lot?A. No, I can't give you an approximation. (Johnson Dep., 169:18-22)

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Erik Johnson Could Only Observe What He Could Actually SeeQ. Did you consider at the time that it was important for you to be aware of not only what was in front of you, but what was to the side of your truck?A. Yes, I don't believe that that would be appropriate in that case because of the low visibility and the darkness and especially since the only light that I had and the visibility that I did have was in front of me. So I kept my vision more in front than I did try to the sides or anything like that. Where normally, if under different circumstances and light, I could see with my peripheral vision without having to physically turn my head left or right. That since it was such a low visible time and situation, that my focus was directly in front and what I could see and what I could control with. (Johnson Dep., 198:1-21)Q. Did you consider that because it was dark out and that you had limited visibility that it was of increased importance for you to observe what was not being illuminated by your headlights?A. I can't observe anything that I can't see. I can only take into consideration possibilities, but again, it would be speculation. I can only focus on what I can see and what I can control. (Johnson Dep., 199:18-200:5)*

Q. Once you enter the parking lot, at what speed are you traveling?A. Actual, speed I can't recollect. I don't know. But I did take it very slow. I know that for a fact.Q. What do you mean when you say "very slow"?A. As my training and experience have taught me, that if you're in an unfamiliar area or situation or terrain always cover the brake, never speed because of obvious hazards that could pose a possible threat.Q. Okay.A. So for me to actually guess a speed limit, I can't do, or a speed that I was traveling at.Q. Okay. I'm not asking you to guess.A. No, I understand that and my point is this, it wasn't I would say more than 5 miles an hour because of the initial contact with the first pothole. I wasn't aware of how many other potholes could be in the parking lot or what other hazards could possibly be a threat, so I needed to have a safe speed. (Johnson Dep., 185:12-186:8)

Plaintiffs Counsel Persisted on a Speed Estimate*

Erik Johnsons Actions Once the Truck Stopped (Johnson Dep.), pp. 216:21-217:7

Q. What happened after you came to rest in the parking lot?

A. After? Well, I turned the -- or I pulled the parking brake actually, turned the ignition off and I dismounted the truck as I normally would if I was exiting or entering the vehicle and then I went -- proceeded to turn off the disconnect battery that powers the truck.*

Gary Ausmore Exited the Truck as Soon as it Stopped (Ausmore, Dep.), p. 30:17-22Q. How long after he pulled the air brake did you get out of the truck?A. As soon as he pulled the air brake I popped the door and got out of the truck because the truck was safe, it stopped, it ain't going to move. We were going to the Wawa. (Ausmore Dep.), p. 32:16-20Q. Did you expect that Mr. Johnson was going to be walking with you to the Wawa?A. Figured he was going to be walking behind me because I immediately left out of the truck and I figured Kevin would be right behind us.*

How did Erik Johnson Learn he Collided with Something?Q. And what happened?A. I exited my vehicle and did the following step with turning off the battery disconnect. As I was walking towards the Wawa, Kevin Richmond came out of his truck and said that I hit something or someone. And so then I proceeded to check. (Johnson Dep.), p. 218:4-11

Q. At any time prior to exiting the vehicle, did you perceive that you had struck something?A. No, I didn't. I had no idea.Q. At any time prior to exiting the vehicle, did you perceive that you had struck a person?A. I had no idea that I struck anything.Q. When did you first perceive that you had struck something?A. Kevin Richmond had informed me verbally. (Johnson Dep.), pp. 217:11-24

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Where did Erik first see Eli Gibert?Q. You say that when you found him he was beneath your truck.A. That's correct.Q. Where beneath the truck was he?A. Towards the rear part of the truck. Q. Where was he relative to the rear wheel axle?A. He was under between the two rear axles. (Johnson Dep. pp. 236:20-237:9)Q. Where was he relative to the wheels at the end of those axles?A. He was in the middle under the truck.Q. In the middle between the rear wheels?A. [H]e wasn't underneath any of the wheels. He was underneath the body of the truck. (Johnson Dep. Pp. 238:2-238:17)*

Where did Erik Johnson first see Eli Gilbert (cont.)(Johnson Dep. Pp. 238:21-240:1)Q. And how was his body oriented?A. Length-wiseQ. Okay. So his head was toward the front of the truck and his feet were toward the rear of the truck?A. That's correct.Q. And how was his face oriented? Was it down? Was it up? Was it to the side?A. It was up*

What did Erik Johnson do once he realized he hit a person? Q. Okay. When you say you reacted as fast as you could, what did you do?A. I called 9-1-1. I told Kevin Richmond to call a supervisor and I physically myself dialed 9-1-1.Q. What did you tell the 9-1-1 dispatcher?A. That I believed that I hit someone, a pedestrian and that I never saw him, it was dark out and that emergency services would need to be dispatched immediately. (Johnson Dep., Pp. 222:10-22)Q. After you got off the phone with the 9-1-1 dispatcher, you said that you immediately went under the truck to be with Eli.A. That's correct.Q. At what point did you remove yourself from being under the truck?A. I removed myself from under the truck after I knew Eli was in the hands of the paramedics.Q. So from the period of time that you got off the phone with the 9-1-1 dispatcher until after he was taken custody of by paramedics, you were with him under the truck?A. Yes. (Johnson Dep., Pp. 251:23-252:14)

*

How did Erik Johnson Assist the EMT? (Johnson Dep., pp. 265:1-266:3)Q. You assisted EMS in extracting him from below the truck?A. Yes.Q. How did you do that?A. Well, they finally decided what they were going to do. I asked for a pair of scissors because I noticed the strings of his backpack were entangled inside the transmission or the gearshift. I'm not sure on the nomenclature or what part the actual backpack was attached to, but it was attached physically to the truck and that I had to cut the strings from the backpack off from the truck so that way he could be released because he was in it, the backpack -- his backpack still and just -- again, with my layman and limited knowledge in medical conditions, I do know not to move a person at least minimally unless you absolutely have to. And that was part of the instructions the EMS said also said, I mean, we have to move him. So I said he was caught on the truck and I asked for a pair of scissors and then I assisted by cutting the strings off the truck.*

Erik Johnson Testified that He Saw Headphones on Eli Gilberts ChestQ. I don't recall exactly what your testimony was, but I think you said that his earbuds were by his sweatshirt?A. Yes, they were right around here.Q. Okay. They were resting on top of his chest?A. Correct.Q. Is that what you're indicating?A. Yes. (p. 260, l. 1-11)

*

Once Eli Gilbert was Extricated, Erik Johnson Spoke to Investigating Police OfficersQ. When he was extracted from beneath the truck, what happened next?A. We extracted him from the truck. I was under there. And then once I saw the ambulance -- or the EMT technicians, excuse me, removing him and putting him in the ambulance, then I came out of the truck.Q. And what did you do next?A. I seen my route manager Tom Hirsch and I talked to him about, you know, what's -- what he needed me to do. What's the next step? What should we do now? And his words were to go speak -- there was I guess the accident investigator on the scene and that to go talk to him about what had happened.Q. Did you understand the accident investigator that he was referring to be somebody that was with Waste Management?A. No, he was referring to the police through a hand gesture towards where all the police cars were and officers were standing in that -- just a general direction. (Johnson Dep., pp. 267:17-269:14)*

What could Erik Johnson have Done Differently to Prevent this Accident? (Johnson Dep., pp. 285:7-286:9) Q. Since the accident, have you considered whether you should have done something differently to have prevented this incident from occurring?A. I've gone through it in my head of course as anybody would and I believe considering the darkness, my heightened awareness, everything that I've been training for for the past going on 12 years, I believe that I did everything within my power and within reason to not be involved in this accident. I don't see what I could have done honestly differently. I believe that everything that I did or looked for, trained for, experience was to be the correct action at that time. It's a terrible tragedy that it happened, but at the same time that I believe that there was everything that I could do humanly possible training wise and experience wise that I believe that I still did what I feel was the right thing to do and the necessary thing to do considering the circumstances at that time.*

GARY AUSMORES OBSERVATIONS*

What did Gary See as the Truck was Turning Left into the Lot?Q. Did you see anything in the lot?A. The tractor-trailers.Q. How many tractor-trailers did you see?A. I believe there was two of them.Q. Where were the tractor-trailers within the lot?A. In the back where they're normally parked at.Q. You know that there are normally tractor-trailers parked in that lot?A. Yeah.Q. And you noticed two of them on this particular occasion?A. I believe I seen two. (Ausmore Dep., 22:9-22)

*

Did the Truck Hit a Pothole as it Entered the LotQ. Tell me about the pothole.A. It was a big one because it really rocked the truck when we was turning in.Q. Where is the pothole located relative to the entrance of the parking lot?A. I think it's like right there on the curve, you know, as you're going in, it was like a big -- because when he turned in it was boom. It just shook the whole truck.Q. How many feet into the parking lot if you can tell me was the pothole?A. I can't. It was just right there.Q. Did you see the pothole when Mr. Johnson drove into the lot?A. No.Q. But you felt it?A. Yeah, because it really rocked the truck. (Ausmore Dep., 23:9-24:2)

*

After the Truck Hit the Pothole, What Direction did the Truck Travel?Q. After Mr. Johnson drove over the pothole, what did he do in terms of the direction that he took the truck?A. Well, we were going to the Wawa so when he pulled in he just went in and there's a guardrail sitting there --Q. A guardrail between the Wawa and the empty lot?A. Yeah, there's a guardrail right there that I guess separates them or whatever for whatever reason and he just went in and swung the truck around to position it by the guardrail because we're going this way (indicating) to go to the Wawa. All you had to do is backup and weave out and we were going to go to the right. (Ausmore Dep., 25:23-26:13)*

Did Gary See Anybody in the Lot?Q. Did you observe anyone within that lot as Mr. Johnson was driving through it?

A. No, I didnt. (Ausmore Dep., 27-28, l. 24-2)

*

What did Gary do When the Truck Stopped to Park? (Ausmore, Dep.), p. 30:17-22Q. How long after he pulled the air brake did you get out of the truck?A. As soon as he pulled the air brake I popped the door and got out of the truck because the truck was safe, it stopped, it ain't going to move. We were going to the Wawa. (Ausmore Dep.), p. 32:16-20Q. Did you expect that Mr. Johnson was going to be walking with you to the Wawa?A. Figured he was going to be walking behind me because I immediately left out of the truck and I figured Kevin would be right behind us.*

When did Gary First Realize Something had Happened?Q. So you're walking over and you saw them?A. Yeah, when I came out of the store I noticed them, you know, across the lot towards the truck.Q. And what did you do?A. I walked over. I picked up my pace because I knew -- in my mind I'm wondering why they're all going over that way.Q. Okay.A. And then when I got closer then I, you know, I knew something was wrong.Q. How far away from the truck were you when you knew something was wrong as you said?A. I was just about up on the guardrail. (Ausmore Dep., 36:6-18)*

Q. As Mr. Johnson was making a left turn into the lot, where were you looking?A. Ahead of me.Q. Ahead of you and what were you seeing?A. The trash truck. First I'm looking to make sure no one is coming so I can make my left after he gets in the lot, and then I start to make my turn and I'm looking right at the trash truck because it's going straight in front of me.Q. Did you observe anything about the parking lot as Mr. Johnson was making a left turn? A. A big pothole. Q. Where was the pothole located? A. Right at the entrance, right-hand side of the entrance. Q. About how big was the pothole? A. Oh it's huge.Q. Were you able to see that pothole?A. Not until after he hit it. That's when I avoided it and went around the pothole. (Richmond Dep., 31:17-21:12)What did Kevin Richmond See as the Trash Truck was Turning Into the Lot?*

Where was the Trash Truck as Kevin Richmond Started to Make the Left Turn into the Lot

Q. Let's go back to the point in time when you were making a left turn into the parking lot. As you began to make a left turn into the parking lot, approximately how far in front of you was Mr. Johnson's vehicle?A. About 40 feet.(Richmond Dep., 42:17-22)*

What did Kevin Richmond Observe?Q. Did you at any point prior to the impact see Eli Gilbert?A. No.Q. Did you at any point see the truck strike Mr. Gilbert?A. On impact.Q. About how long prior to the impact between Mr. Gilbert and Mr. Johnson's vehicle did you observe Mr. Gilbert?A. A half a second.Q. What part of Mr. Johnsons vehicle made first impact with Mr. Gilbert?A. The front drivers sideQ. At the time that you observed the impact, did you have an understanding as to whether Mr. Johnson had struck a person or something or something else?A. No. I thought it was something or someone. Something got hit.Q. Did you observe anything about the shape of what was being hit at the time of the impact?A. No, just the shape. I couldn't tell you defining shapes, just a shape.Q. What was the shape?A. Dark figure, dark object. (Richmond, Dep., 44:14-23; 47:2-7; 49:9-20)*

Was the Trash Truck Turning When the Accident Happened?Q. So at the time of the impact was he traveling straight or had he already begun to make that left turn within the lot?A. He was -- it was after he turned but he was still coming around in his turn when impact happened. He wasn't straight, he was completely -- he was coming in his turn to come out to straighten it out. So he was still in his turn when it happened. (Richmond Dep., 54:2-11)*

What did Kevin Tell Erik Johnson?Q. Tell me what you observed when you saw the truck run over the person with the front drivers tire.A. Got hit and knocked down, got run over. Obviously Mr. Johnson didn't know, kept driving. And that's when Mr. Ausmore got out of the truck, Erik got out of the truck. I said, Dude, you hit something or someone, it's under the truck. He didn't believe me. I said, Dude, there's something under that truck. So I pulled the truck up a little bit, angled it more towards the back of the truck, put the high beams on, and that's when I had noticed Mr. Gilbert underneath the truck. (Richmond Dep., 58:7-19)*

Who did Kevin Richmond Call and Why?A. Nothing. I'm sorry, I'm wrong. I called -- I tried to call dispatch -- or here on the radio. Forgot that it was off. Turned it on. And then I talked to them and told them they needed to get over here. And that's when everything came down and --(Richmond Dep.), pp. 70:24-71:7

Q. Why did you call Tom?A. He's my boss.Q. But why did you call him; what did you tell him?A. Tell him I think Erik hit someone or something, he -- sorry. He needed to come see something in the empty lot next to the Wawa on 413 and Bath Road.Q. Why did you think he needed to come see something?A. Because at that point Erik was under the truck so I -- an incident, you call, they tell you. Something happens, you call. (Richmond Dep., 73:22-74:10)*

TO INVESTIGATE PLAINTIFFS CLAIMS, WASTE MANAGEMENT RETAINED HIGHLY TRAINED ACCIDENT INVESTIGATORS*

Dr. Chimba Mkandawire, P.E., CAISSDr. Mkandawire is an expert in the field of Accident Reconstruction, with an emphasis on addressing issues involving the biomechanics of human injury, with expertise in the areas of human tolerance, occupant kinematics, and rigid body dynamics.*

Dr. Joseph SalaDr. Salas work focuses on the cognitive, perceptual, physical, and developmental human factors issues relating to accidents and injuries. Dr. Sala applies this expertise to the analysis of visibility, the effect of attention on human performance, lifespan and age differences in behavior, human information processing and decision-making, and the development and evaluation of warning and safety information.*

Headlamp Analysis: Walking

ConclusionsMr. Lipian misuses and misapplies the program I.DRR to the current incident

The scenarios considered and analyzed within I.DRR bear no resemblance to current incident

Mr. Lipians analysis with I.DRR contained numerous input errors that render the results inaccurate and meaningless

Mr. Lipians Opinion on Point of Impact*

Rust and Scratches on Bumper Police Scene Photograph (1/7/2012) *

Rust and Scratches all over Bumper Police Scene Photograph (1/7/2012) ScratchesScratches*

This is How Mr. Lipian Claims Eli Gilbert Was Positioned at Impact*

Overhead View of Mr. Lipians Illustration of Point of Impact*

Clearance Under Metal Skid Plate and Front Axle*

Clearance for the front metal skid plate is a maximum of 13 inches and decreases to less than 12 inches *

Clearance for the front metal skid plate is a maximum of 13 inches and decreases to less than 12 inches *

Mr. Lipian Himself, Although Smaller than Eli Gilbert, Wearing Less Bulky Clothing and Without a Backpack Could Not Fit Under the Skid Plate*

Lipians January 30, 2014, Inspection of the Trash Truck*

MP3 Player Belonging to Eli Gilbert Found at Scene *

Paramedic Anthony Correia Testified that He Saw the MP3 Player and HeadphonesDid you observe any music listening devices?

I believe there was, but I didn't notice if it was on his head. But I believe there was a -- some kind of MP-3 or IPod player with him. (p. 58-59, l. 22-6)

*

Paramedic Maynard Hathaway Testified that He Saw Headphones

Do you recall headphones at the scene?

A. I think he had headphones. I don't know if they were in his pocket hanging out or around his neck hanging out -- hanging around his neck. I don't recall where they were, but I remember a pair of headphones. (p. 72, l. 4-15)

*

Erik Johnson Testified that He Saw the MP3 PlayerQ. Did you see an iPod or some kind of MP3 player or some type of device that headphones would attach to?A. After I was cleared to come under the truck and I was going to talk to my route manager, I did look over and I just kind of assessing the situation and the area I did see a little MP3 player on the ground, but it wasn't on him, as far as I know.Q. Where on the ground was it? Near the truck?A. Yes. (p. 258, l. 1-12)

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Erik Johnson Testified that He Saw Headphones on Eli Gilberts ChestQ. I don't recall exactly what your testimony was, but I think you said that his earbuds were by his sweatshirt?A. Yes, they were right around here.Q. Okay. They were resting on top of his chest?A. Correct.Q. Is that what you're indicating?A. Yes. (p. 260, l. 1-11)

*

Why Did Eli Gilbert fail to Hear the 38,000lb Diesel Powered?

The pothole, [R]eally rocked the truckit was boom. It just shook the whole truck.-Ausmore dep., 23:10-18*

Plaintiffs Expert Henry Lipian Measured the Noise Levels of this Diesel Truck Weighing 38,000lbsMr. Lipian did not compare these levels to any noises we hear on a daily basis.

We did. Specifically, the noise levels outlined by Plaintiffs expert Henry Lipian, at a distance of 12-15 feet from the trash truck, are comparable to household appliances such as Garbage Disposals and Food Blenders.

*

WASTE MANAGEMENT INTERNAL INVESTIGATION*

Kevin Richmond Completed an Employee Report of Injury Form*

What Richmond MeantQ. On Richmond-2 you were asked the question what did you learn from this incident that will help avoid a recurrence. Do you see that?A. Yes.Q. You answered to be more alert when driving the trash truck. Why did you answer that way?A. I'm the new guy, I was new at that point, that's what I learned.Q. Did you believe that Mr. Johnson was not being alert enough when driving the truck?A. No.Q. Do you believe that Mr. Johnson could have been any more alert when driving his truck to have avoided the accident?A. No.(Richmond Dep., 92:13-93:19 emphasis added)*

DAMAGES*

Pain and Suffering*

According to the 911 Call, Eli Gilbert was Unresponsive at 6:37AM*

Paramedic Anthony Correia Found Gilbert in Cardiac Arrest at 6:44AM(Correia Dep., p. 38:18-20)Q. And you arrived on the scene at 6:44.A. Correct.

(Correia Dep.), pp. 126:21-127:6Q. Is it fair to say, though, sir, that from the moment you did your assessment looking under the truck and felt for the pulse and did not feel one, that you believed that the patient was in cardiac arrest? A. Uh-hum. Q. You have to answer verbally. A. I'm sorry. Yes. Yes, I did, I did believe that.*

ELI GILBERTS FUTURE WAGE LOSS*

Comparison of Economic LossPlaintiffs expert estimates between $432,911 to $3,648,037

Defense expert estimates between $134,717 and $700,248*

Plaintiffs Expert David Hopkins Exaggerates Eli Gilberts Future Earning Potential

Hopkins concludes that Eli Gilbert would have earned up to $3,648,037, which required completion of College Degree within 4 years of date of accident and 49 year worklife expectancy as an Addiction CounselorEli Gilbert Dropped out of College after one semester earned 0 credits in 5 classesEli Gilbert never expressed interest in returning to collegeEli Gilberts actual worklife expectancy was 34 yearsEli Gilberts realistic lifetime earnings are up to $700,248 based on his education, worklife expectancy and expenses

*

Which Scenario Makes More Sense?Mr. Lipians own diagram shows no abrasions, lacerations, avulsions or injuries of any kind identified on Eli Gilberts torso. *

Mr. Lipian Himself, Although Smaller than Eli Gilbert, Wearing Less Bulky Clothing and Without a Backpack Could Not Fit Under the Skid Plate*

Lipians January 30, 2014, Inspection of the Trash Truck*

Lipian Could Only Fit to the Left of the Skid Plate in an Open Space Near the Driver Side Tire*

***NEED HARDCOPY OF TTHIS DOCUMENT FOR JURORS TO LOOK AT IN DELIBERATIONS ONHAND-AR**NEED HARDCOPY- FOR POWER POINT _NEED TO PULL OUT STATEMENTTEXT TOO SMALL TO READ*Text too small, need blow up*HIGHLIGHT WHAT IS IMPORTANT IN THE CONCLUSION*INSERT PICTURE OF ERIK JOHNSON*Scenario

In the second, the Waste Management truck is proceeding straight along a roadway, at 45 mph. At some point, Eli steps into the roadway and walks perpendicularly fifty feet across the road. Approximately 3 feet from impact with Eli, the WM truck begins to brake or steer before striking Eli with the front headlight assembly.

*GET RID OF THIS SLIDE-AR IT IS MAKING LIPIAN A CENTRAL CHARACTER IN THIS CASE THUS GIVING HIM CREDIBILITY & INCREASING HIS IMPORTANCE-AR

REFRAME: NOT ABOUT LIPIAN BUT ABOUT THE PROGRAM*F**DANGEROUS- WE ARE BLAMING ELI GILBERT AGAIN!!!!*WHY? WHY? WHY?**