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Whittenburg v. Werner Enterprises Inc.

April 3, 2009


Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-05-1395-W).

The opinion of the court was delivered by: Gorsuch, Circuit Judge.


Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

Mack Whittenburg was driving his pickup truck on the highway when he collided with a stalled tractor-trailer. Suffering a number of injuries, Mr. Whittenburg brought suit against Werner Enterprises, Inc., the trucking company, as well as Werner's driver management company and the individual tractor-trailer drivers. The jury ultimately returned a verdict assessing the defendants' negligence at 75% and Mr. Whittenburg's damages at $3.2 million. The defendants timely appealed. We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg's counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel. Neither line of argument was appropriate. Their volume and volubility, the fact they went unrebuked despite contemporaneous objections, and the apparent influence they had on the jury's verdict, collectively lead us to the reluctant conclusion that, not only were they improper, but a new trial is required.


On the morning of December 1, 2003, driver-trainee Marisela Neff was at the helm of the Werner truck while her trainer, Jon Morlan, was dozing in the sleep seat. After realizing she had taken a wrong turn onto Oklahoma Highway 325, Ms. Neff awakened Mr. Morlan who, after consulting a map, advised Ms. Neff to make a U-turn. Part-way through the U-turn the truck got stuck and remained jammed in the highway, blocking the road in both directions and shining its headlights toward oncoming traffic.

Mr. Morlan exited the truck and attempted to ascertain whether and how it might be moved out of the way of traffic. Meanwhile, Ms. Neff saw headlights approaching and ran into the middle of the highway waving a flashlight. When that failed to slow the oncoming vehicle, she ran back to the truck and began to beep the horn and turn on more lights. Mr. Whittenburg, the driver of the approaching car, testified that as he approached the obstruction he observed only the truck's headlights shining down the opposite side of the road. Believing the lights to emanate from a large vehicle parked on the opposite shoulder, Mr. Whittenburg did not slow down and as a result collided with the truck.

Both sides agree that it was dark at the scene, with little or no ambient light, and that neither Ms. Neff nor Mr. Morlan placed reflective warning markers, available in their truck, on the highway. There was reflective tape on the sides of the Werner truck, though whether Mr. Whittenburg was in a position to see the tape's reflection given the angle of the truck was a matter of dispute; Mr. Whittenburg testified he did not see the reflective tape.

Ultimately, Mr. Whittenburg brought this suit for injuries he suffered as a result of the collision. At the close of trial, Mr. Whittenburg's counsel presented a closing argument in which he asked the jury to "imagine" with him that, shortly after Mr. Whittenburg had left the house the night of the accident, Werner delivered a letter to Mr. Whittenburg's children. Because many aspects of this portion of the closing argument are challenged, we reprint it here:

And so I want to take you back to November 30th, and I want you to do just an imagining thing with me.

You recall Ann Whittenburg sitting there on the stand and saying, "Sunday afternoon we saw Mack off that day that he went to the ranch." Now, just bear with me; think with me.

Imagine that there's Brit, and there's Ann, and they sent Mack off, he's on his way out there Sunday afternoon, maybe six o'clock. Mack turns around the corner as he leaves Palacio back to I-40 and he's going to take 35 north on his way to 287 out of the Amarillo.

Brit turns around and gets ready to walk back in the house, and there's an envelope sitting there on the floor, and he reaches down and he picks it up, and he gives it to Ann, and Ann opens it, and she looks at it, and it's a letter.

It's a letter to Brit and to Sarah and to Cecily and to Justin and to Amanda.

I'm just imagining, but listen to these facts.

This letter's dated November 30th, 2003, and it's from Werner Enterprises.

"Brit: "That was the last time you will ever see your dad as you now know him. You should let your siblings know this.

"In just a little while, our company drivers, Jon Morlan and Marisela Neff, are going to get in one of our big semi-trucks in Limon, Colorado, and we're going to head south toward Amarillo pulling a loaded trailer. Ms. Neff will be driving. She's too inexperienced to make this trip safely, and Mr. Morlan will be too tired to properly supervise her, and, while Mr. Morlan crawls in the truck sleeper and goes to sleep -- . . .

"Ms. Neff will be unable to properly follow the route that she and Mr. Morlan laid out, and she will be too confused to read the upcoming road signs.

"Our drivers will arrive in Boise City, Oklahoma, just ahead of your dad, sometime around midnight or thereafter. Ms. Neff will take a wrong turn west of Boise City, and Mr. Morlan -- Mr. Morlan will be too in much of a -- he'll be in too much of a blue funk to be of any help to her after she does call on him for help.

"He will refuse to take the steering wheel when she calls for his help, and she will high-center the truck on the highway when she attempts a U-turn, rather than taking a little extra time to find a place that -- safe place to turn around or to call for help. And Ms. Neff will center -- will high-center this semi-truck out on the same highway that ...

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