A truck driver who was rear-ended by another driver after merging into the left lane of a highway at a very slow speed has no liability for the accident, a Suffolk County jury has found, despite two adverse jury instructions and the fact that the jury found the truck driver acted negligently.

The verdict in Kohler v. Barker, 18055-11, came June 13 after a trial before Justice Joseph Santorelli (See Profile).

The accident happened in April 2011 near the intersection of State Route 347 and Terry Road in Smithtown. Eric Barker was driving a water delivery truck for Nestle subsidiary Poland Springs and pulled over to the side of the road to make a delivery. Afterward, he merged back onto the highway, moving immediately toward the left-most lane while traveling under 20 miles per hour. As he was moving, he was hit by a car driven by the plaintiff, George Kohler, who suffered severe brain injuries, requiring multiple surgeries. He has said that he has no memory of the accident.

Kohler subsequently sued Poland Springs and Barker. He initially sought $10 million, though he eventually dropped the demand to $4.8 million. He rejected a settlement offer before trial, according to attorneys for both sides.

During the trial, two eyewitnesses testified for the defendants, saying that Kohler covered the distance between Terry Road, about a thousand feet away, and the site of the collision in just a few seconds, suggesting that he was driving around 85 to 90 miles per hour. According to a later analysis of the skid marks his car left on the road, he was traveling about 60 miles per hour when he braked.

One of Kohler’s key witnesses was Robert Genna, who testified as a private consultant on accident reconstruction, but also works as the director of the crime lab in the Suffolk County Medical Examiner’s office. Genna has been working as a private accident reconstruction consultant since at least the 1990s.

Genna testified that based on his analysis of the accident, Kohler was not at fault, which contradicted the testimony of a Suffolk police detective who responded to the accident.

The defendants’ attorney, Stuart Miller, a partner at Wilson Elser Moskowitz Edelman & Dicker, suggested during his cross-examination of Genna that Genna’s dual role created a conflict.

Santorelli allowed several questions on that topic during the cross-examination.

Miller said in an interview that he believed Genna’s dual role had severely hurt his credibility.

“He does not have a right to moonlight in his own backyard,” Miller said.

Genna, however, strongly disputed that there was any conflict, pointing out that his county job involved only criminal cases, and that the county had no stake in the outcome of Kohler’s suit.

“Suffolk County plays no role other than the fact that the police documented the accident at the scene,” he said. “It’s the same as if it had happened at Nassau County.”

“For him to even allude to the fact that there’s a conflict is ridiculous,” Genna added. “I do my cases on my own time, on my vacation time, on my personal time.”

Before the jury deliberated, Santorelli gave it two instructions that were adverse to the defendants.

One, a so-called Noseworthy charge, after Noseworthy v. City of New York, 298 N.Y. 76, instructed the jury that if they credited Kohler’s testimony that he completely lost his memory of the accident as a result of his injury, they could expect a lesser degree of proof from the plaintiff than they would otherwise.

Santorelli also gave them a sudden emergency charge, which said that if Kohler was reacting in a reasonable way to a sudden emergency—that is, Barker’s truck merging in front of him—the jury could give him more latitude in determining whether he was negligent.

The jury ultimately concluded on June 13 that, while Barker was negligent in moving into the left lane at low speed, that negligence was not a cause of the accident. They awarded Kohler nothing.

Miller said the finding was remarkable in light of the two adverse jury charges.

Steven Palermo of Palermo Tuohy Bruno, who represented Kohler along with his partner and brother Edward Palermo, said his client planned to appeal, and that he believed the jury verdict was contradictory.

“What was more unusual is that they found the driver was negligent, but wasn’t the proximate cause of the accident,” Palermo said. “I still don’t know how that action on the defendant’s part would not be a proximate cause.”