Coach Don Nelson's family seeks punitive damages; Widener wants case moved away from Pulaski County
By: Darrell Todd Maurina
Posted: Wednesday, February 3, 2010 8:45 pm
George Harry Widener
WAYNESVILLE, Mo. (Feb. 3, 2010) — Lawyers for George Harry Widener, a Jerome man accused of killing former Waynesville High School baseball coach Don Nelson by running over his motorcycle, failed Wednesday morning in an attempt to get Circuit Judge Tracy Storie to send the civil portion of the case to another county.
Rather than ruling on the motion from Lawrence R. Smith, Widener’s civil lawyer from the St. Louis suburban law firm of Brinker and Doyen, Storie disqualified himself, which means the civil case will have to be heard by a different circuit judge.
The criminal case of involuntary manslaughter against Widener is also stalled with no action since September when Storie disqualified himself from that case after Widener’s lawyers requested a change of judge from Presiding Judge Mary Sheffield, who had originally been scheduled to hear his case. The case has been sent to the Missouri Supreme Court for assignment of another judge, but according to records in the Pulaski County Circuit Clerk’s office, they haven’t yet acted.
Widener, 65, faces both civil and criminal cases in connection with a June 4 fatal crash in which St. Robert police say Widener was driving the wrong way in a Chevrolet Avalanche SUV on Old Route 66 and ran head-on into Nelson, who was riding a motorcycle. Nelson, 54, was pronounced dead at the scene. The civil lawsuit brought by the adult children, Kenneth Todd Nelson and Stacie Marie Cruz, was filed by Mark Turley of the Smith-Turley law firm based in St. Robert. Widener had already hired John Garrabrandt of the Dan Birdsong law firm in Rolla to represent him in the criminal case being prosecuted against him by Pulaski County Prosecuting Attorney Deborah Hooper.
A request by Widener’s criminal defense attorneys to move the case to Phelps County was earlier rejected when Hooper successfully argued that Widener, because of his Jerome residence, would be well-known in Phelps County just as Nelson is well-known in Pulaski County,
While the criminal case isn’t moving forward, the civil case has gone through several steps since the Smith and Turley law firm was retained by Nelson’s children. Most recently, Widener’s lawyer argued in court documents filed Dec. 18 that he “believes that there is good cause” to move the trial to another county “since the inhabitance (sic) of the county in which venue is laid are prejudiced against the applicant and as a result he cannot have a fair and impartial trial in that county.”
Efforts by numerous motorcycle riders to lobby Associate Circuit Judge John Clayton into denying a bond reduction effort factored into what’s technically known as a “change of venue” request by Widener’s lawyer. Court documents note that “the citizens of Pulaski County have already engaged in lobbying effort to influence rulings in defendant’s criminal action associated with this matter,” citing as evidence an article from the Pulaski County Daily News. Three other articles from the Pulaski County Daily News were also cited as evidence of “excessive media coverage which has tainted the potential pool of jurors in Pulaski County.”
Widener’s lawyer also noted that as a former high school basketball coach, Nelson “occupied a very visible position within Pulaski County.”
The Nelson family’s lawyer, Mark Turley, filed a notice on Feb. 28 denying the causes for a change of venue with a “request that the court hear evidence and determine the issues.”
It’s not clear when that will happen because the hearing will be conducted by someone other than Storie.
Earlier actions in the case include a December request by the Nelson family’s lawyers to add punitive damages to the original request filed June 12 for merely compensatory damages in the civil case. Associate Circuit Judge John Wiggins heard the request from the Nelson family on Dec. 9 to add a clause to the civil lawsuit arguing that Widener’s conduct “showed complete indifference to or conscious disregard for the safety of others, thereby entitling plaintiffs to an additional amount as damages for aggravating circumstances in such sum as will serve to punish defendant and deter others from like conduct.”
Widener’s lawyers objected to the punitive damage clause, filing an amended objection on Dec. 18 arguing that Nelson’s “damages and (his family’s) injuries and damages, if any, were solely caused by (Nelson’s) own negligence and fault.”
Widener’s lawyers also cited numerous other objections, including that punitive damages violate the state and federal constitutions because they “constitute penal damages and amount to an unconstitutional criminal and excessive fine or punishment in a civil proceeding” and argue that Widener, who is retired but whose wife owns a local business, would suffer because “the imposition of punitive damages discriminates against the defendant on the basis of wealth in that greater amounts of punitive damages for the identical conduct may be awarded against some defendants who have more economic wealth than other defendants.”
Other claims of constitutional violations include that punitive damages “are based on vague, conflicting, uncertain and purely subjective standards without adequate notice to defendant, creating a chilling effect on speech and expression,” as well as risking the imposition of multiple penalties and fines for the same conduct.