U.S. District Judge Clay Land finds Postal Service liable in catastrophic accident after taking rare step of empaneling advisory jury

Steve Lowry, left, and Jim Carter represented Mary Bilbrey and her disabled son. Both lawyers said they were persuaded by the evidence and their clients' own accounts of the accident indicating that the postal worker was at fault.

Steve Lowry, left, and Jim Carter represented Mary Bilbrey and her disabled son. Both lawyers said they were persuaded by the evidence and their clients' own accounts of the accident indicating that the postal worker was at fault.

Three days before Christmas in 2006, Jason Murray and his pregnant fiancée, Mary Bilbrey, were returning from a Christmas shopping trip when a mailman making his rounds on a state highway in Walton County pulled his postal truck into the path of their car.

It was raining, and when Murray swerved to avoid colliding with the postal truck, he lost control of the car, skidded off the roadway and collided with a wooden fence.

A rail from the shattered fence broke through the car windshield and pierced Mary Bilbrey's abdomen, sending her into hemorrhagic shock, leaving her with permanent, disabling injuries and her unborn son, who survived, with profound brain damage.

Those were the findings of U.S. District Judge Clay D. Land in a personal injury case in Athens last month in which the judge awarded $11.5 million to Bilbrey and her son, Anthony, who will be 4 years old on Dec. 23—the anniversary of the accident. The plaintiffs had asked for $25 million.

Before arriving at that verdict on Nov. 19, the judge took the rare step of empaneling an advisory jury—the first time that he or his colleagues on the Middle District bench had ever done so according to the plaintiffs' lawyers.

Land did so because there were only three witnesses to the accident—Murray, Bilbrey and U.S. postal worker Randy Malcom, who gave a contradictory account of the events that led to the crash, said Stephen G. Lowry, a partner at Harris Penn Lowry DelCampo who represented Bilbrey and her young son.

Land told the lawyers that the outcome of the trial was so dependent on the credibility of the three witnesses that he decided to impanel an advisory jury "to get input from 12 impartial people as to what they believed on the issue of negligence and causation of the collision," Lowry explained.

Because Malcom is a federal postal worker, the U.S. government was named as the lead defendant in the case. The government was represented by Bernard Snell, an assistant U.S. attorney in Georgia's Middle District in Macon. Neither U.S. Attorney Michael J. Moore of the Middle District nor Snell could be reached for comment.

Lowry and his co-counsel, Savannah attorney James E. Carter, said they were persuaded by the evidence and their clients' own accounts of the accident indicating that Malcom was at fault. Lowry added that after calling 911 Malcom left the scene without offering any assistance to the couple.

Malcom, they said, claimed that his postal truck had pulled off the roadway and was idling when Murray's car passed him, hydroplaned and skidded off the road.

"Essentially, we had ... competing versions," Lowry said. "The postal driver said he didn't pull out [in front of the couple]. Jason and Mary said he did."

Lowry said that five police officers dispatched to the accident scene said when they arrived within three minutes of the 911 call that Malcom's mail truck wasn't there and that no one came forward, including Malcom, as a witness.

When a state trooper who investigated the accident attempted to contact the U.S. Postal Service based on Murray's account of the accident, no one would return his calls, Lowry said. When insurance adjusters attempted to get information from the U.S. Postal Service, they were informed they could not speak to Malcom or examine his mail truck for possible damage.

"They were stonewalled at every turn," Lowry said. "Malcom left the scene of the accident, and the post office basically stonewalled all attempts to investigate what happened."

After a trial lasting two and a half days, Land gave the advisory jury six special interrogatories to answer regarding who was at fault for the accident. After deliberating for a single afternoon, "The jury found that the accident was solely caused by the negligence of the postal employee and the post office," Lowry said.

Land concurred.

The jury, Lowry said, made its finding without hearing evidence documenting the extent of the injuries sustained by Bilbrey—who was in a medically induced coma for nearly five months while she recovered from the traumatic injuries she sustained—and by her profoundly brain-damaged baby. As a result, the jury avoided findings that might have been governed by sympathy for the accident victims, Lowry explained.

The verdict ultimately was Land's, based on the judge's findings and conclusions, Lowry added. "He did want to have the input of a jury. … He really wanted to find out what the jury was thinking on those issues and if they thought anybody else was at fault," he said.

While the jury deliberated over liability in the case, Land presided over the damages portion of the trial.

Carter said that medical records and video depositions of key physicians who treated Bilbrey and baby Anthony—who was born and resuscitated as doctors worked to save Bilbrey's life on the day of the accident—as well as testimony from an expert who projected the cost of the child's care requirements over the course of his life helped persuade Land to hand down the $11.5 million award.

Bilbrey's medical bills alone totaled more than $1 million, Carter said, and the accident left her with permanent, disabling injuries. Land awarded her $2,674,192.04.

Land also awarded $8,884,174.62 to attorney Donna M. Swilley as conservator for Bilbrey's son, Anthony, to pay for his medical expenses as well as the cost of his care for life.

"The judge was very careful to verify that the doctors supported the life care plan," Carter said. In addition, Carter and Lowry called an economist to testify as to how much money should be set aside in order to pay for the child's future needs.

In his award order, Land found that Anthony's brain damage was so severe that the child "is completely disabled and unable to attend to his basic necessities without complete assistance. His injuries and disability are permanent, and he has lost the opportunity to ever participate in the most basic daily activities."

"We thought the judge really worked hard," Carter said. "He wasn't giving anybody any sympathetic verdict. He was struggling to find the right amount."

Lowry said that the lawyers' challenge at trial was to convince jurors—and Land —that the mailman's version of the accident was false.

They were aided in that endeavor by Malcom, whose description of the accident he claimed to have witnessed from his mail truck while it idled off the pavement "kept changing every time he told it" and included inconsistencies that were contradicted by the physical evidence in the case, Lowry said.

One of the biggest inconsistencies—but one on which the defense built its case—was Malcom's insistence that Bilbrey, then 8∏ months pregnant, was driving the car, Lowry said.

"Not only did she have trouble getting behind the wheel," he said, "the injuries she got were physically impossible" had she been driving—a point that the plaintiffs' medical expert made to the jury.

Lowry also said that when Malcom testified at the trial, the mailman changed his story as to when he had first seen Murray's car. In earlier versions, Malcom had said that when he first saw the car it was in the middle turn lane abreast of his truck.

Lowry said that when he argued that Malcom's account was consistent with the couple's claim that he had suddenly pulled out in the road in front of them, the mailman's story changed.

"He came to court and testified that he saw them in his mirror about 90 yards behind," Lowry said. "He said he pulled forward and to the right to make sure he was out of the roadway."

Lowry said that Malcom also claimed that when the couple's car drove by his truck, it "scared him because it was so loud."

But on cross-examination, Lowry said he discovered that Malcom could not hear well. "He couldn't hear anything I was saying," Lowry said. "The judge had me get within five feet of him. I'm yelling at him and he's still claiming he can't hear me."

"It was another thing," the attorney said, "that didn't add up."

Malcom also claimed that after he called 911 to report the accident, he remained at the scene until police officers told him to leave, even though none of the officers who testified remembered him being there, according to Lowry. But Malcom also admitted he never told police that he actually had witnessed the accident, Lowry said.

However, Carter said that they elicited testimony from witnesses that Malcom had informed his supervisor of the accident, claiming that "he had told police all about what happened, when, in fact, he didn't."

Malcom's postal supervisor and fellow workers who testified at the trial "all said Randy came back and told them he told police all about it and helped out the people in the car," Carter said. "All that was patently untrue."

"The jury took it for what it was worth," Carter continued. "He didn't stop to render aid. He didn't stick around. He called 911 and went on his mail route." And although Malcom claimed to have been delayed by the accident in finishing his route that day, Carter said that they subsequently learned that on the day of the accident—a rainy day three days before Christmas—Malcom actually finished his mail route early.

Murray, by contrast, "told the very same account of the incident to the police officer, at the hospital and to his mother within minutes of the wreck," Carter said.

Murray also told the story of the postal truck suddenly pulling in front of his car to the surgeon who saved Bilbrey's life that day and who promptly recorded it in Bilbrey's medical history, the lawyer continued.

Lowry said that a skeptical Land also helped the plaintiffs' case when the judge began questioning the government's accident reconstruction expert—who, according to Lowry, had an engineering degree he had obtained online from an unaccredited college.

"The judge was very skeptical of his opinion," Lowry said, and as Land fired questions at him, "He came across as very unprepared."

So thorough was Land's examination of the government's expert that Lowry said that when he stood to cross-examine the government's expert, "The truth was the judge had already taken him apart."