Excerpts from testimony of Jessie Mahoney – Victim in highway incident

The following excerpts taken from transcript of disciplinary hearing regarding ethics complaint against Jeff Sutton filed with Disciplinary Administrator for the State of Kansas.

Questioning by Marty Snyder, attorney for Office of Disciplinary Administrator, State of Kansas

Pages 76-101

Q. Directing your attention to July 30th of 1992, (16) what were you doing on that day?
(17) A. I was- on that day?
(18) Q. Uh-huh.
(19) A. I was working as a flag person on the highway (20) at K-96.
(21) Q. All right. And as you were working as a flag (22) person that day, what mechanism did you have (23) for vehicular traffic that would come along the (24) highway while it was under construction?
(25) A. Okay. There are signs set out that say you’re
(1) in a construction zone within a range of (2) probably two miles back. And also then I had a (3) stop sign. You know, it tells that the flag
(4) person is going to be there.
(5) And then I had a stop sign, and I stopped (6) the cars to control the traffic. And it was (7) for the protection of the public and for the (a) workers in front of you.
(9) Q. So K-96 was under construction?
(10) A. Yes. We were blacktopping.
(11) Q. How many lanes did it normally have?
(12) A. Two.
(13) Q. One each direction?
Q. I guess, one east and one
(16) A. Yes, I think that’s right.
(17) Q. How many lanes were available to handle cars on (18) July 30, 1992?
(19) A. One lane.
(20) Q. So it was down to one lane?
(21) A. One lane over that four-mile stretch that they (22) were working on at that time.
(23) Q. Okay. So was there another flag person on the (24) other end of the four-mile stretch?
(25) A. Yes. And then there was a pilot truck or car
(1) in between taking the traffic through the work (2) area because they were doing blacktopping on
(3) the one side of the road.
(4) Q. So you would each take turns holding up the (5) traffic and alternating and letting them be
(6) guided by the pilot vehicle in each direction?
(7) A. Yes.
(8) Q. At approximately what time of the afternoon (9) that day did you see Mr. Sutton’s vehicle (10) approaching in the wrong lane?
(11) A. At approximately about 3:45 in the afternoon.
(12) Q. And were the cars that were eastbound- I (13) believe Mr. Sutton was eastbound. Were the (14) other eastbound cars at a point where they were (15) going ahead? Or were they stopped?
(16) A. They were stopped completely. I had them all
(17) stopped, and it was approximately about ten (1a) cars that
I had stopped. And then I was
(19) holding out my stop sign.
(20) They would be in the center of the road (21) where the cars were stopped. And then I would (22) be at the side with my sign held out so that (23) any people could see that I had the vehicle (24) stopped.
(25) Q. Okay. So at about 3:45 you had around 10 cars
(1) stopped traveling eastbound?
(2) A. Yes.
(3) Q. Okay. Do you recall seeing Mr. Sutton’s (4) vehicle sitting back at
the end of the line for (s) a period of time and then pulling out? Or do
(6) you know?
(7) A. All I- it was stopped. I could see a car (8) coming out from the line coming towards me.
(9) Q. Okay. Was the car traveling slowly? Or at a (10) high rate of speed?
(11) A. I could hear the acceleration.
I couldn’t say (12) how fast he was going. He was coming towards (13) me, so I stepped out into the lane, which I’m (14) supposed to be controlling both lanes because (Is) I’m supposed to be keeping anybody from going (16) on down the road.
(17) And I waved my sign in order to, “Hey, (16) hey, you’re supposed to be stopped,” you know, (19) that’s what the line is for to wait for the (2o) pilot truck.
(21) Q. And the truck ahead was just limited to one (22) lane?
(23) A. Yes.
(24) Q. And there could be cars coming back toward you?
(25) A. Yes. The pilot car would be bringing the other(1) cars back from the other direction. And then (2) the other lane was where they were doing (3) paving. It would be the wet- you know, the (4) blacktop would be wet from that side, and then (5) the machines and all the workers would be in (6) the road.
(7) Q. Okay. So there’s a north lane and a south (8) lane. Apparently the south lane was the (9) eastbound lane on K-96?
(10) A. Yes.
(11) Q. Between the south lane and the north lane, (12) where were you standing with your stop sign?
(13) A. I was practically in the center. It would be (14) the center of where the little lines would
(15) probably be.
(16) Q. How big is the sign that you were holding?
(17) A. Oh, approximately 6 foot tall, you know, with (18) the stop sign. I’m 5’8, and it’s a little (19) taller than I am. (20) Q. Okay. Thank you. What happened as (21) Mr. Sutton’s vehicle approached you?
(22) A. Well, he didn’t appear to be really slowing (23) down that much. I waved my sign, and then I (24) went to the side. And then I braced myself and (25) braced my sign showing him the stop sign out.
(1) And I’m just probably right over the middle (2) line, and I’ve got my sign out.
(3) Q. Were you anywhere near the north shoulder of (4) the road?
(5) A. No.
(6) Q. You were still about in the center?
(7) A. I was in the center.
(8) Q. With the sign braced against your side?
(9) A. Yes.
(10) Q. Okay. What happened next?
(11) A. He kept coming, and he ran into me and my sign.
(12) Q. His vehicle actually struck your sign?
(13) A. Yes. Yes. And I went up on the vehicle. And (14) when it finally stopped, I just remember (15) being-you know, my head was going backwards (16) and forward. I was going up on- I landed (17) like- I was on his vehicle when it completely
(18) stopped, and my sign was, like, up against his (19) windshield, like, kind of over to the side.
(20) Q. So you and your sign were leaning over the (21) front of his car when it stopped?
(22) A. Yeah.
(23) Q. Okay. Did he ever knock you down?
(24) A. No. I went up onto his car, and then he jumped (25) out of the car.
(1) Q. What happened next after he jumped out of the (2) car?
(3) A. He proceeded to jump out of the car and curse (4) at me.
(5) Q. Do you recall some of the words that he said?
(6) A. Yeah. I don’t usually use that language, but
(7) Q. What did he say? I understand.
(8) A. Okay. “You bitch, you scratched my car.” He (9) wasn’t concerned with what he had done to me.
(10) Q. You thought he was coming
out to check on you?
(11) A. Yeah, with his hands clenched like that (12) (indicating.) And then I jumped back and went (13) to the back of his car, he had a little- he (14) had a smaller car. And I said, “You better be (15) worried about what you just did to me, and (16) you’re breaking a law by coming around and (17) trying to go on by.” (18) Q. So he approached you with his fist clenched?
A. Yes.
Q. And called you a “bitch’? A. Yeah. “You scratched my
Q. He said that you had hurt his
A. Yes.
Q. Okay. And then you went around to the back of (2s) the car and did what?
(1) A. He said, ‘Well, I’m just going to the next (2) mile.” And I said, “You can wait a minute just (3) like the rest of the people, and you can wait (4) for the pilot truck to come.” And he said that (5) he was just going to the next road and that he (6) was going to go turn.
(7) And I said, ‘Well, I have your license (8) plate if that’s what”- you know, I told him he (9) could go in back or come to the front of the (10) line.
(11) Q. So you offered to let him in front of the line?
(12) A. Yes, because we were right-he was up to the (13) front line. He could get right in front or (14) could go to the back. And he refused. He (15) said, “No, I’m going on.” And I said, ‘Well, (16) then, I have your license plate number.” (17) And it was quite easy because it says, (18) “Single Lawyer” on it. And so it was- I have (19) been trained to get license plates and stuff (20) like that before if we had any problems in the (21) past because of my types of. jobs that I had. (22) So I had to get that.
(23) Q. So you had just been bumped, you and your sign, (24) by his car, but you still went around and had (25) the presence of mind to-
(1) A. Well, he was coming after me. He was coming on (2) around. And then he turned around and said he (3) was going anyway. He came around to where I (4) was going back behind, you know, to the car (5) because I was fearing for what was coming (6) next.
(7) And then he said, ‘Well, I’m going (8) anyway.” And then he proceeded to go get- it (9) looked like he was getting in his car to drive (10) off. And instead he bent down and he picked up (11) a full bottle of Pepsi and threw it straight at (12) me. And I was probably not more than 10 feet (13) from him. And he threw it with an accuracy of, (14) I’d say, like a football, you know, and hit me
(15) right into my ribs (indicating.)
(16) It was the same place where I was holding (17) my sign, so it was just, like, a jar. I went (18) up against the other truck, the truck that was
(19) first in line.
(20) Q. So you were knocked backwards into a truck?
(21) A. Into a vehicle. From the impact of just even (22) the bottle and how he threw it.
(23) Q. When you say “Pepsi bottle,” do you know (24) whether it was Pepsi or something else?
(25) A. It was Pepsi. We had the bottle. It was
(1) turned over to the Cherokee County Sheriff’s (2) Department.
(3) Q. Okay.
(4) A. It was a full bottle of- I’m not sure if it (5) was plastic or if it was a bottle. I can’t (6) remember. It’s kind of a blur that part of (7) it.
(8) Q. Are we talking like a little one that goes in a (9) six-pack? Or are we talking about a 2-liter (10) bottle? (11) A. It was like a bigger- it was like a 16-ounce (12) or a 20-ounce. I’m not sure. It was in (13) between. It wasn’t a 2 liter. It was (14) something
(15) Q. So it wasn’t a little can size, and it wasn’t a (16) 2 liter? It was a bottle?
(17) A. It was a bottle.
(18) Q. Okay. What happened after you were hit with (19) the Pepsi bottle?
(20) A. He left and proceeded on his way and did just (21) what he wanted to do – said he was going to (22) do. (23) Q. Were there any collisions ahead, as far as you (24) know?
(25) A. No. He turned wherever he was- he turned
(1) before the pilot truck got back, yes. She (2) seen- my- the other girl, she said, “I (3) wondered why”- you know, she wondered why she
(4) seen the vehicle. And she knows I, you know, (5) do not let other cars pass. You know, she seen (6) that vehicle. And I told her what had
(7) happened, you know, and everything.
(8) Q. Oh, she thought you had let somebody through?
(9) A. Yeah, but she knew that I don’t do that, so she (10) wondered what happened.
(11) Q. Okay. What did you do next after Mr. Sutton (12) left? Did you see whether he had any (13) passengers in his car?
(14) A. I knew that he had someone in the car with (15) him. I really- it seemed like the glass was (16) kind of tinted or something. Like I say, I was (17) in shock, I think, about what happened to where (18) I could not see- I could see a movement in the
(19) car, but I could not really see the person that (20) was in there.
(21) Q. Had you ever been hit either intentionally or (22) by accident by a vehicle on the roadway before?
(23) A. No.
(24) Q. Had you ever had an object thrown at you or hit (25) you from a traffic traveler before this
(1) incident?
(2) A. No.
(3) Q. What did you do next?
(4) A. I waited for my foreman to come to the job to (5) decide was they taking me down to the other (6) end, which was closer to Columbus, for the (7) sheriff’s patrol to come and take my (8) statement. And then
(9) Q. Did you try to continue to work that afternoon?
(10) A. I tried to continue, but I was kind of- I (11) think I was just kind of in shock. It was just (12) like a numbness. I was in pain. And then I (13) went- after 5:00, I think my foreman took me (14) to the hospital.
(15) Q. So you went to the hospital that day?
(16) A. Yes.
(17) Q. Okay. What was found at the hospital?
(18) A. They thought that I had broken ribs. They were (19) saying my pain was coming from broken ribs. I
(20) had pain throughout my body. And they told me (21) to- they tried to take x-rays, except that I (22) was already purple from the rib area. All (23) through here was purple blood.
(24) Q. Was that from the sign getting jammed into (25) you? Or was that from the bottle? Do you (1)know?
(2) A. The doctor figured it was from my sign – the (3) sign or bottle. It could have been both, (4) because actually the impact was almost in the
(5) same area, because the sign where I braced it (6) went up under my ribs. I was lucky it didn’t
(7) puncture anything.
(8) But I was already just purple when I got (9) to the doctor’s office – to the hospital. And (1o) then they checked me. And they weren’t sure, (11) but they thought at the time that my ribs
(12) weren’t broken, but they were later on.
(13) Q. Later they found that they had been broken?
(14) A. They were mistaken, yeah. They were broken at (15) the time.
(16) Q. Did you end up making a statement to the law (17) enforcement people?
(18) A. Yes, yes, I did.
(19) Q. Did you also end up making a workers’ (20) compensation claim for your job-related injury?
(21) A. Yes, ma’am.
(22) Q. Did your work comp claim result in a (23) settlement?
(24) A. Yes.
(25) Q. And approximately how much, with everything (1) included, your medical payments, future (2) medical, and your permanent injury, how much (3) was your workers’ compensation settlement?
(4) A. I think it was for 60. And that was for (5) everything.
(6) Q. $60,000?
(7) A. Yes.
8) Q. And was your insurance company paid back the (9) amount they had paid in medical out of your (1o) 60,000? Or was that on top of that?
(11) A. My insurance- the settlement, I think, it was (12) his insurance paid my workman’s comp back.
(13) Q. Later on. I’m talking about out of your (14) 60,000, were you able to keep most of the 60 or (1s) just a portion?
(16) A. I can’t remember for sure about the amount. (17) 20-something thousand – 27 – 25.
(18) Q. After the medical was paid and your attorneys, (19) you got 20-some thousand?
(20) A. Yes.
(21) Q. Okay. Was it found by the workers’ (22) compensation judge to be a permanent injury?
(23) A. Yes, it was.
(24) Q. Do you know whether any criminal charges were (25) filed against Mr. Sutton arising out of this (1) matter?
(2) A. I think at the time there was, but he got a (3) diversion.
(4) Q. Were you consulted about the terms of the (5) diversion?
(6) A. No, I wasn’t. I
(7) Q. Excuse me. Go ahead.
(8) A. I think that they entered into the diversion (9) without, you know-they said, ‘Well, we gave (1o) him a diversion.” That’s what I heard, that he (11) was supposed to pay my medical bills. But at (12) the time my medical bills wasn’t even near what (13) they ended up being. You know, they just paid (14) the medical bills that I had at that present (15) time.
(16) Q. That’s what I was going to ask you next. At (17) the time Mr. Sutton was granted a diversion on (18) his criminal charges, did you have medical (19) bills of
approximately $3,000 after the work (20) comp payments, I mean, that you had incurred (21) after the work comp settlement?
(22) A. Yes.
(23) Q. Okay. And were those $3,000 the medical bills (24) ordered to be paid by Mr. Sutton as part of the
(25) diversion?
(1) A. Yes.
(2) Q. So it was a definite amount that was put in the (3) diversion agreement?
(4) A. That was the amount that I had up to the date (5) that they entered into the diversion which was, (6) I think, just a few months after I was injured, (7) or within just a year. I am still unable to do (8) work
anymore. And I still have- the medical (9) bills were up until that time.
(10) Q. Regarding the terms of the diversion agreement, (11) Mr. Sutton was not ordered to pay all your (12) related medical bills forever with an (13) open-ended statement, was he? Was it a certain (14) amount he was ordered to pay?
(15) A. Yes, according to what I seen later on. But, (16) like I said, I was not brought into the picture
(17) of the diversion. I mean, they just- you (18) know, they didn’t even consult me at all.
(19) Q. Was it some months before you received some (20) payments even after the diversion was (21) completed?
(22) A. I never received payments. They went straight (23) to my- I guess to the workman’s comp.
(24) Q. So you didn’t personally benefit at all from (25) the diversion amounts?
(1) A. No.
(2) Q. Another of the conditions of the diversion was (3) Mr. Sutton’s mental health evaluation. Did you
(4) ever receive a report?
(5) A. No. No, I didn’t.
(6) Q. At approximately the same time, did you consult (7) an attorney regarding filing a civil lawsuit
(8) against Mr. Sutton?
(9) A. Yes.
(10) Q. And who was that attorney?
(11) A. Garry Howard.
(12) Q. Had Mr. Howard also represented you in the (13) workers’ compensation claim?
(14) A. Slape & Howard, they were together. I think (15) Slape is the first name. They’re together, and
(16) Slape handles the workman’s comp, and Garry (17) handles the civil suits.
(18) Q. And they’re a firm in Wichita?
(19) A. Yes, they are.
(20) Q. Has your civil suit against Mr. Sutton settled (21) since your filing of it?
(22) A. Yes.
(23) Q. And approximately how much money did it settle (24) for?
(25) A. 30,000.
1) Q. Were you able to get most of the $30,000? Or (2) did that also go to someone else?
(3) A. That went to workman’s comp.
(4) Q. Okay. What has happened with regard to your (5) injuries since the settlement of the civil (6) claim and since the ending of the workers’
(7) compensation and criminal matters as well?
(8) A. Well, I have been unable to go back to work. (9) And I have persistently had to go to doctors. (1o) And I’ve been under all kinds of treatment for (11) my back and my neck. And then they finally (12) found after taking epidurals in my back for my (13) pain, I’ve never been out of pain since the day (14) of that accident.
(15) And then later on – it’s been about a (16) year and a half – I had to have surgery on my (17) neck to remove two discs because they found
(18) that I had herniated discs caused from the (19) accident. And they had missed that.
(20) Q. You have already had neck surgery?
(21) A. Yes, I have.
(22) Q. On your cervical spine for ruptured discs?
(23) A. Yes.
(24) Q. Okay. To what was your injury attributed to – (25) to what cause?
(1) A. From that accident. From me going up on the (2) car and my head going backwards.
(3) Q. Who has paid for your surgery for your neck (4) since the work comp and everything had already (5) been settled?
(6) A. Actually, Medicaid and Medicare, because I am (7) now on Social Security Disability.
(8) Q. You did apply for Social Security Disability?
(9) A. Yes, and I do receive Social Security (10) Disability.
(11) Q. And it was granted to you based on your current (12) disability?
(13) A. Yes.
(14) Q. Is that also attributed to this accident?
(15) A. Yes.
(16) Q. Before July of 1992, were you disabled in any (17) respect?
(18) A. No.
(19) Q. Did you have any mental or physical or (20) emotional conditions that prevented you from (21) working before July of 1992?
(22) A. No, ma’am.
(23) Q. Since July of 1992, have you had any other (24) injuries or illnesses besides that incident (25) that would contribute to your current physical
(1) condition and prevent you from working?
(2) A. No.
(3) Q. Are you currently on any kind of prescription (4) medication for the pain you described?
(5) A. Yes.
(6) Q. And how are these prescriptions being paid?
(7) A. I have- let’s see, I have social security, (8) which they do not pay for my prescriptions, but (9) I have what they call a set-aside. I’ve got to (10) come up with paying 500-and-something dollars, (11) before I get a medical card this year, every (12) six months. So I have to take it out of my own (13) pocket.
(14) Q. So every six months for set-aside you have to (15) pay how much?
(16) A. I think it’s $560. I have to pay that much (17) prescriptions before they will pay for my (18) prescriptions, every six months.
(19) Q. Okay. So on an annual basis, you have to pay (20) $1,120 out of your own pocket for (21) prescriptions?
(22) A. Yes.
(23) Q. Okay: Do you usually pay your set-aside and (24) then still get some benefits then under that (25) arrangement – additional medical compensation?
(1) A. Probably from $60 to $80 (2) or more a month on prescriptions.
(3) Q. Okay. Has this been the case since 1993, for (4) the past three years?
(5) A. Yes.
(6) Q. Past four years, I guess. . . .
. . . So it’s your testimony that (6) you are currently out of pocket on medications (7) alone $1,120?
(8) A. Yes.
(9) Q. And does that include any of your pain and (10) suffering?
(11) A. No.
(12) Q. Are you requesting then, as Mr. Palmer (13) anticipated I was going to say, for this Panel (14) to order Mr. Sutton to pay restitution in an (15) amount of approximately $1,100 a year for your (16) medications?
(17) A. Yes.
(18) Q. Thank you. What else do you believe- well, I (19) meant to ask about the counterclaims. Did you (20) ever see a copy of the answer that Mr. Sutton (21) filed in your civil . . . (1) filed for over $50,000 in counterclaims against (2) you?
(3) A. No, I did not.
(4) Q. Do you know on what basis he would make a claim (5) to the Court that you owed him money?
(6) A. No. I was completely surprised.
(7) Q. Did you have your deposition taken in that (8) civil matter?
(9) A. Yes.
(10) Q. And did Mr. Sutton also have his deposition (II) taken in that matter?
(12) A. Yes.
(13) Q. Were both depositions taken under oath, to the (14) best of your knowledge?
(15) A. Yes.
(16) Q. Do you know what Mr. Sutton’s explanation was (17) at his deposition for where he was going that (10) day and why he was in such a hurry?
(19) A. I think he said . . . .
(1) A. He stated, I think, that he had to take his (2) mother to a dentist appointment in Joplin.
(3) Q. And how far is Joplin from where you were?
(4) A. I’m not exactly sure of the exact amount, but I (5) would say probably 50 miles. So, I mean, it (6) was 3:45 approximately in the afternoon.
(7) Q. So by the time this was all over and he was (8) leaving, it was close to 4 o’clock.
(9) A. I would say.
(10) Q. And he claimed that his mother had a dental (11) appointment in Joplin that afternoon?
(12) A. Yes.
(13) Q. Okay. Do you know of anything else with regard (14) to that incident and your injuries involving (15) Mr. Sutton that you believe the Panel needs to (16) know today to understand your position?
(17) A. No. I think I’ve stated most of the things (18) that need to be known. (19) Q. Thank you.
(20) MS. SNYDER: I have no further (21) questions of this witness.
(22) But other people might, so stay there.
(23) CHAIRWOMAN HOOVER: Go ahead.
(24) MR. SUTTON: I have no questions for (25) this witness.

Page 100

(1) MR. PALMER: I’m having a little (2) trouble. Were you hit by the car?
(3) MS. MAHONEY: Yes.
(4) MR. PALMER: So where did the car (5) strike you?
(6) MS. MAHONEY: I was on top- I ended (7) up on top of the car in between through here (8) (indicating.)
(9) MR. PALMER: Which part of the car (10) hit you first? Were you hit-
(11) MS. MAHONEY: My sign was hit first. (12) And I was up on- then-which, at the time, (13) since I’m working and my sign was- I’m holding (14) the sign up under my ribs.
(15) MR. PALMER: So you’ve got the pole (16) like up under your ribs? Is that it?
(17) MS. MAHONEY: Yes, sir, and I ended (18) up on
(19) MR. PALMER: Did the car strike your (20) body, or just the sign?
(21) MS. MAHONEY: I was on the car. (22) That’s where I landed.
(23) MR. PALMER: What was hit first, the (24) sign?
(25) MS. MAHONEY: The sign, sure
(1) MR. PALMER: Okay. What kind of car (2) was it?
(3) MS. MAHONEY: It was a Toyota, small, (4) sports-like, car.
(5) MR. PALMER: And what did you say the (6) license plate was?
(7) MS. MAHONEY: “Single Lawyer.”

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