December 10, 2009 Copyright © Las Vegas Review-Journal
CORRECTION: CORRECTION RAN ON 12/19/2009
THIS STORY SHOULD HAVE STATED THAT HERBST GAMING, NOT TERRIBLE HERBST, OWNS ETT INC., ONE OF THE PARTIES IN THE CASE.
Doug McMurdo
By DOUG McMURDO
las vegas REVIEW-JOURNAL
Allegations of willful destruction of evidence and lying to police were among the arguments heard Wednesday by a Nevada Supreme Court panel.
Justices were in Las Vegas to hear the appeal of a $14.1 million wrongful death lawsuit filed in 2001.
The case was one of the more high-profile of the decade and began when temporary workers stole an industrial truck belonging to Terrible Herbst, got drunk and then struck and killed 58-year-old Rosa Delgado as she tried to get into her car, which was parked on a downtown street.
In June 2006, a jury determined a trio of companies owned by Terrible Herbst should pay a three-quarter share of $4.1 million in compensatory damages to Delgado’s family and $10 million in damages designed to punish the company.
The driver, Darwin Ellison, was found liable for 25 percent of the verdict. The drunken driving incident was his third. He pleaded guilty to manslaughter and received a prison sentence of five to 20 years.
Following the 2006 proceeding, Terrible Herbst attorneys sought a new trial and a reduction in the verdict. Clark County District Judge Elizabeth Gonzalez denied the first request but reduced the punitive damages to a little more than $4 million.
Soon after, Terrible Herbst lead attorney Daniel Polsenberg and Robert Eglet, representing Delgado’s family, each accused the judge of abuse of discretion. Polsenberg said she should have granted a new trial. Eglet argued she had no right to reduce the jury’s verdict.
Polsenberg told justices Michael Cherry, Mark Gibbons and Nancy Saitta that Delgado’s death was a tragedy, but he argued the only persons that could be held responsible were Ellison and other temporary workers who took the company’s truck and went bar-hopping before striking Delgado.
Polsenberg said Delgado’s attorneys accused Terrible Herbst attorneys of lying, covering up evidence and using the company’s influence to impact the trial process. The allegation that evidence was willfully destroyed involved a videotape of a security guard who reportedly told police Ellison did not have authority to drive the truck when in fact he did.
Terrible Herbst attorneys at trial argued they had no control over the temporary employees. However, testimony from those temporary workers showed the company allowed Ellison to drive knowing he had a drinking problem and prior drunken-driving convictions.
Eglet said Terrible Herbst managers deliberately sought workers who did not have a driver’s license because they were less costly than temporary workers with a license.
While it is unusual for a judge to come under attack from both parties in an appeal, neither attorney spoke harshly of Gonzalez. In fact, Polsenberg said she was a “talented and incredibly gifted” judge who was new to the bench at the time of the trial.
The Supreme Court must determine if Gonzalez abused the court’s discretion when she denied Polsenberg’s request for a new trial and when she granted his request for a reduction of the award. A decision could take several weeks or longer to reach.
