If the case does go to trial, it would be McGillicuddy and Tobler's job to prove fault by the only defendant in the case -- Dietrich. They would, in essence, be helping McDonald. The O'Bier family would have no reason to attempt to produce evidence showing the state was at fault, since doing so would reduce the family's claim against Dietrich, the only defendant from whom they could recover damages.
And finally, if Dietrich convinced the jury it was really the state's fault, not his, that verdict would not be binding on McDonald's firm because McDonald's firm is not a party in the case.
Brandon and Rayann O'Bier in 1996, the year they married.
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In a bizarre twist of legal loyalties, in a trial against Dietrich alone, it could behoove McGillicuddy and Tobler to toss in sympathetic words for Dietrich in hopes that the jury would agree with expert testimony that the road and its signage were partially at fault. Then, the O'Biers could use that verdict as the basis for a separate malpractice suit against McDonald.
McDonald's attorneys call these arguments a bunch of "rhetorical hyperbole."
The O'Bier attorneys still have one more legal card to play, however. They've asked another judge to rule on whether McDonald might still be locked into the case. It turns out McDonald and his firm's attorneys continued to file motions and be involved in hearings and conferences even after they were dropped from the case. One of these motions was aimed at preventing Dietrich from establishing the state's fault in the case.
"They can't have it both ways," McGillicuddy says. "Either they're in, or out. We'd like to have them in."
Rayann O'Bier spent most of the first year after Brandon's death in her old room at her parents' house. When Brandon Jr. slept, she read books on spirituality.
"I wanted to know where he was," she says. "It took me a while to figure out the authors didn't know anything either."
After a year, she began trying to rebuild her life. She found a trailer home she could rent cheap. A few months later she found a waitressing job at a golf course. An old friend of Brandon's baby-sat Brandon Jr. while she worked.
Still, she was tapping into her savings to stay afloat. By 1999, her savings had run dry.
Two months ago, she began working as a waitress at a pool hall. She needed a job close to home because her truck broke down. The truck needs $2,700 worth of work to get it running again.
Until she can save up money for the repairs, her neighbor drives her to work each day at 4 p.m., then watches Brandon Jr. Rayann picks up Brandon Jr. at midnight when she returns from work.
On a recent afternoon, Brandon Jr. watches Power Rangers as Rayann sits at the kitchen table of her trailer home recounting the last four years. At first, there was numb lethargy and rage at God or fate or Ken Dietrich. After that, a halfhearted forgiveness and understanding and the instinctive impulse of a mother to provide. Now she gets by pretty well if she doesn't think about debt or what-ifs.
Besides what she owes McDonald's firm, she'll owe McGillicuddy a third of any settlement. Her savings are gone. She feels betrayed by McDonald. And she could be trapped in a legal purgatory of trials and appeals for another five years.
If she settles out of court with Dietrich, she may kill her chances of making McDonald pay. And she wants McDonald to pay. So she'll probably have to get on the stand twice to describe to the jury her husband's death and its consequences.
"We have to stick with this now," Rayann says. "But sticking with it just means we can't get on with our lives. We're trapped. And we're going to be trapped for a long time."
