Highway to Hell

Rayann could stay mad at anybody in her life except Brandon O'Bier. Brandon had this sweet cowboy plain talk and unbowable optimism and screwball humor that let him hover above bad days or sidestep his occasional naughtiness. Besides, she had seen his good heart too often. She would get mad and he would make some joke and the heavy anger would just blow away. She married him in 1996 because he brought a calm joy and playful levity to life that she had never before felt.

They planned to have four kids. She would stay home with the children as he got his graphics design business up and running. She would help with the bookkeeping between diaper blowouts and school activities.

To save money, he worked at the Harrah's casino south of Phoenix. She worked there for three years, too, but got a job closer to their home in the northwest Valley around the time she became pregnant with their first child.

The first ultrasound was scheduled for early November 1997. He wanted a boy he could name Brandon O'Bier Jr. She thought the junior thing was a little self-absorbed, but she protested mainly to get naming leverage if the baby was a girl.

Three weeks before the ultrasound, Brandon bought a pair of blue-and-white Nike booties and a miniature Emmitt Smith jersey. Brandon had the endearing but wasteful habit of lobbying fate.

Fifty-first Avenue runs through the grit and industrial hum of South Phoenix into the Sonoran silence of the Gila River Indian reservation. The highway snakes to the southwest between the saw-toothed Estrellas and the molar mounds of South Mountain, then straightens and releases eastward into the vast baking sheet of the lower Valley desert.

Four miles west of Sun Lakes, the road comes up a slight rise to an intersection -- the four-lane Maricopa Road. But because of the way Maricopa Road slopes, it's difficult to see the second set of two lanes beyond the rise.

Kenneth Dietrich saw only two lanes -- and no signs warning him otherwise -- as he turned north onto the southbound lanes of Maricopa Road after a long cruise from Phoenix. It was about 2:50 p.m., October 22, 1997.

The 73-year-old Dietrich draped his right arm over the passenger seat of his Cadillac Seville, began tapping the seat to the music and accelerated to 60 miles per hour. To his left, a crop duster banked and dove toward a field. Watching the plane, Dietrich didn't see the man to his right, who was waving frantically at him from a truck speeding down the correct side of the road.

Dietrich continued on this way for more than a mile.

Brandon O'Bier was driving his Mustang south on Maricopa Road at the same time, on his way to work. He may have been changing radio stations or watching the same plane. He, too, was going about 60 mph when the two cars hit, head-on.

The heft of the Cadillac saved Dietrich from serious injury. Brandon was pried from his crumpled Mustang and rushed to the hospital unconscious and bleeding internally.

Before leaving for work, Brandon had taken the month's rent check to the landlord. When the landlord called Rayann at work, she at first figured Brandon had forgotten to deliver the check. Instead, the landlord said everybody was looking for her and that she needed to get to the hospital real quick.

Doctors performed the CAT scan soon after she arrived. Brandon was brain-dead. Doctors disconnected his life-support system a few hours later.

Rayann left the hospital and headed to her old room in her parents' house. She lay in her childhood bed for several days, went to the funeral, lay in bed for several more days and then went for her ultrasound.

There on the doctor's monitor she saw a ghostly little figure with a nub on its crotch. She cried and named the fetus Brandon O'Bier Jr.

Nearly four years have passed since Brandon O'Bier's death. Rayann still has dreams in which he comes home from work to hugs from his wife and 3-year-old son.

Initially, she was angry at God and Kenneth Dietrich. Over time, her broken faith scarred over and her hatred for Dietrich evolved into sympathy. Mr. Dietrich made a mistake. Accidents happen.

What wasn't an accident, she believes, was what she calls three years of price-gouging and deception by her former attorney, a man who now says she and her family owe his law firm more than $74,000.

And because of that attorney's actions, she could be looking at five more years of legal battles to reach a final settlement in her husband's wrongful-death case, money that might go mostly to paying legal bills instead of establishing a trust fund for her child.  

Rayann first hired John McDonald, a senior partner in the powerful and respected Tucson firm of DeConcini, McDonald, Yetwin & Lacy, because his firm was so well known, still carrying the name of one of its original partners, former U.S. senator from Arizona Dennis DeConcini.

McDonald began a legal action against Dietrich, the driver, but steered Rayann away from another obvious potential defendant -- the State of Arizona and its highway department that may have been remiss in failing to post signs that clearly marked the proper way to get onto Maricopa Road.

McDonald, it turns out, had a contract with the State of Arizona which contractually barred him from suing the state -- in essence his employer.

McDonald did not tell Rayann O'Bier about the contract.

But that contract, Rayann and her new attorney, Terry McGillicuddy, argue, is a key reason McDonald and his firm avoided going after the state in Brandon O'Bier's wrongful death.

Indeed, McDonald's firm has represented the state in 16 cases since 1982. But McDonald argues that none of those cases involved road design or signage and that attorneys are routinely granted waivers to take litigation against the state if the firm has not recently done work for the same state agency. McDonald himself was granted one such waiver in 1997.

In an interview with New Times, McDonald also defended his work and his billing practices in the case.

"They weren't overcharged," he says. "They received those itemized bills every quarter and they never said anything about them.

"I don't think we did anything wrong," he says.

McDonald, however, declined to discuss the case in detail because the case is still in litigation. He also says he can't discuss much of his work for Rayann O'Bier because he is still bound by the attorney-client privilege.

In court records, though, his position is clear: He says he made an honest mistake in not considering the road or the state to be legitimate defendants in the case.

"I have to be careful I don't violate my ethical obligation to the bar and my former clients," he says in declining to speak in detail.

"And I don't try my cases in the newspaper."

Now, Rayann and her family want to sue McDonald and his firm for legal malpractice and breach of fiduciary duty.

But that's going to be more difficult after a recent Arizona Court of Appeals decision regarding the case, a decision McGillicuddy and another attorney in the case say goes against precedent in Arizona law and reduces the O'Bier family's chances of fair compensation.

"The decision changes the landscape in cases of legal malpractice," argues McGillicuddy. "It makes it much more difficult, if not impossible, to sue an attorney for legal malpractice."

"That's nonsense," McDonald says.

In court proceedings, attorneys for McDonald's firm accuse McGillicuddy and his associates of chronic sophistry.

But Rayann O'Bier says McDonald and his team of attorneys were the real legal charlatans.

"They thought they just had some poor, dumb little girl they could grab some money from and run," Rayann says now. "I'm so angry, I feel so betrayed that I feel like we have to fight them to make sure they don't get away with trampling people. But it's awful because it means we'll just keep reliving all this over and over again. I just wish so much we could move on."

Soon after the funeral of Brandon O'Bier, Brandon's father approached Rayann about getting an attorney.

He suggested McDonald, and Rayann was impressed by the idea of having a longtime former U.S. senator's name behind her. McDonald took the case.

"I didn't know the first thing about it," Rayann says, "but he was supposed to be a good attorney."

The O'Bier family had one stipulation: They would pay McDonald on an hourly basis, not on contingency. They didn't want an attorney getting tens of thousands of dollars for a few days' work. They wanted that money in a trust fund for Brandon Jr.

McDonald called Rayann. He said he would sue Dietrich -- a simple enough process with the clear evidence.

The problem: Dietrich had only $300,000 in insurance. Similar cases, according to two personal-injury attorneys who are not involved in this case, are conservatively worth a million dollars. McDonald said he would find out if Dietrich had other assets. It would take some time.

In March, after a difficult pregnancy that had her bedridden and medicated for months, Rayann gave birth to Brandon Jr. She had massive medical bills, no income, and a baby to raise. She had to get rid of her apartment and move in with her parents. She put her and Brandon's belongings in storage, where, sometime in early 1998, they were stolen. She needed financial help immediately, but she agreed to wait for the settlement McDonald said was coming.  

Rayann had been out to the site of the accident several times in the months after Brandon's death. She had followed Dietrich's path. As she did, her contempt for Dietrich waned. She could see how he made the mistake. She believed the road wasn't marked very well, especially since it's difficult to see the second two lanes of the four-lane road. Other family members agreed.

In early 1998, within three months of the accident, she says she asked McDonald: "What about the road? That intersection is really confusing."

She says McDonald told her he had checked the intersection and found nothing wrong with it. Dietrich would be the only defendant.

Unlike McDonald, Dietrich's attorney quickly decided the state was potentially liable. He hired an expert witness -- a respected highway engineer -- and the engineer reported that the road was improperly signed.

In July 1998, McDonald filed a wrongful-death claim against Dietrich on behalf of the O'Biers.

The statute of limitations for filing a complaint against the state passed in October 1998.

In November 1998, Dietrich's attorney notified McDonald that the Dietrichs believed the state was also at fault and that, based on their engineering study, they could prove the state should pay some percentage of the total damages to the O'Biers.

At that point, McDonald was in trouble. An attorney can be sued for malpractice by his or her own client for not going after everybody who could be at fault in a wrongful-death case. Since he hadn't filed a case against the state in time, McDonald's firm might be held responsible and have to pay the O'Bier family damages itself.

Under state law, the O'Biers' new attorneys argue, if McDonald thought he might face a legal malpractice claim, he was required to declare a conflict of interest and withdraw from the case. The logic of the law: If an attorney knows he could be held liable for a percentage of a settlement, that attorney could work covertly to keep his client's judgment low.

But, according to billing records and interviews with the O'Bier family, McDonald and other attorneys working on the case for the firm didn't inform the family that Dietrich was planning to file against the state.

Months rolled on. Finally, about a year later, McDonald's firm hired an engineer to look at the road.

That engineer also agreed that improper signage was an issue in the case. In March 2000, 15 months after he was informed Dietrich intended to blame the state and two and a half years after Brandon's death, McDonald notified Rayann O'Bier that he had to remove himself and his firm from the case because of the potential malpractice issue.

Then the O'Bier family got their final bill -- $74,235.38.

"I was floored," Rayann says. "And I was really floored because a lot of what I was paying for was him trying to save his own butt."

A New Times review of those billing records shows that about $25,000 of the charges came after McDonald was notified by Dietrich's attorney that they would claim the state was at fault.

The billing records show McDonald's firm was charging Rayann O'Bier for thousands of dollars of work that appeared to be an attempt to protect the firm from liability, not to help Rayann obtain more money in a settlement.

For example, McDonald billed Rayann for all expenses related to getting expert testimony from the second road engineer, which totaled more than $5,000. Because McDonald obtained that testimony after the statute of limitations for suing the state had passed, the testimony would be of little, if any, benefit to Rayann's case, but could have served to clear McDonald in any subsequent malpractice suit.

She was charged $225 in February 2000 for an hour the firm spent on "Legal research Signs & State liability," research that, for Rayann O'Bier's purposes, came about 20 months too late.

She was even charged nearly $500 for work done after McDonald notified her that he would have to pull out of the case.

It cost Rayann $8 for a legal clerk to ask a secretary to make a check out to another party in the case.

"This is how that works," says Doug Tobler, the attorney for Brandon O'Bier's mother. "A person says: 'Hey, cut a check to this guy.' Boom. They charged eight bucks for it."

Rayann was charged $40 for an attorney to make a trip between law offices that took a New Times reporter six minutes.  

What wasn't in the bill, though, was any record that showed a member of McDonald's firm visiting the accident site before the statute of limitations against the state had expired. But, the O'Biers say, McDonald told them at the time that the road and its signage were fine.

In March 2000, Rayann went looking for a new attorney and found Terry McGillicuddy, a longtime Phoenix personal injury lawyer.

At first, he says, he thought McDonald had just made a mistake and that they could quickly settle the matter.

But as months passed, McGillicuddy says, it became clear what had really happened.

Terry McGillicuddy was surprised by the same thing that had bothered the O'Bier family for the preceding two years: Why hadn't McDonald sued the state?

"It's basic stuff with the evidence they had," he says. "It just didn't make any sense."

Rayann O'Bier says McGillicuddy met with her and talked to her regularly, something McDonald didn't do. He collected photos of the family, asked her about Brandon Jr., and asked her to describe what she loved about Brandon.

This is what personal injury attorneys do. They want a jury to see the full human toll of the wrong the jury must make right.

McDonald never asked for photos or personal anecdotes. And Rayann O'Bier says she never met McDonald in person regarding the case, nor did she ever meet his key partner in the case, Mark Lammers.

"I was flabbergasted when she told me that," McGillicuddy says. "They had never met with their client after two and a half years and 20 days before the trial."

"I had never had an attorney before," Rayann says. "I just figured that was how it worked by how McDonald handled the case."

McGillicuddy and Tobler began preparing for the trial, which had been set for December 2000. Their plan was simple: Not only would they sue Dietrich, but they would sue McDonald and his firm for malpractice and breach of fiduciary duty.

A jury would determine the percentage of fault for Dietrich and the percentage of fault for the state. The same jury would decide if McDonald and his firm were guilty of malpractice and/or breach of fiduciary duty and any damages.

Last August, McGillicuddy and Tobler added McDonald's firm to the lawsuit. They wanted everything relating to Brandon's death to be resolved in one trial.

McDonald and his firm asked the court to dismiss the claims against them or at least have the malpractice and breach of fiduciary duty claims split out. Their request was denied in December by a Superior Court judge.

So McDonald took it to the Arizona Court of Appeals.

"We talked to a lot of other attorneys about this," Tobler says. "Everybody figured there was no chance the court would listen to it, let alone overturn it."

McGillicuddy, Tobler and Daniel Treon, Brandon's father's attorney, cited several Arizona cases similar to theirs -- in which the courts had allowed the malpractice issue to be part of the main case. In other cases they cited, the malpractice was split out, but for different reasons than they faced with Rayann O'Bier.

McDonald's attorneys used many of those same cases to argue that a jury would have to find the state at fault first, before any malpractice suit could be brought.

Not only did the court take up the matter, the three-judge panel overturned the lower court ruling, saying McDonald's firm didn't have to take part in the first trial. Dietrich would be tried alone.

"Whether the state was negligent and whether its negligence contributed to plaintiffs' injuries has not been adjudicated," Judge James Sult wrote, adding that it was entirely possible a jury might find the state was not at fault. Then, he said, there would be no malpractice because McDonald's failure to go after the state wouldn't have mattered.

McGillicuddy and Tobler bumped the case up again, this time to the Arizona Supreme Court.

Meanwhile, Tobler had an investigator pull together more information on DeConcini, McDonald, Yetwin & Lacy.

In state records, they found the firm had a contract with the state stating the firm couldn't sue the state.

In addition, throughout the time McDonald represented Rayann O'Bier, his firm was actively pursuing additional work as the state's defense attorney, should it get sued. Roadway design, roadway striping, signing or traffic-control devices and roadway maintenance -- the same issues in the O'Bier case -- were just a few of the areas McDonald's firm told the state it could handle.  

Rayann O'Bier says that revelation explained all of McDonald's seemingly unexplainable actions.

"When I heard that, everything made sense," she says. "He didn't go after the state because he couldn't. And he never once told me that."

McDonald and his attorneys argue that their work for the state was irrelevant to the O'Bier case. McDonald contends that his firm hadn't done any substantial work for the state since 1995 and that it is common for the state to grant waivers to attorneys to enter litigation against the state.

McDonald points out that his firm was granted a waiver for a case in 1997 and ended up with a $1 million judgment against the state.

McDonald says he didn't ask for a waiver in Rayann's case simply because he didn't think the state was at fault.

McGillicuddy and Tobler disagree that what the firm did is common.

"They had a serious conflict of interest -- period," McGillicuddy says. "They could not sue the state. They took the case anyway. They did not disclose the conflict. Rayann O'Bier was kept in the dark."

They also don't buy McDonald's excuse that he simply made a mistake, and didn't think about the state's potential liability until after the deadline for moving against the state had passed.

McDonald and his firm's prior contracts with the state became a major part of the O'Biers' Supreme Court appeal. In submitting copies of those records to the high court, McGillicuddy and Tobler called the failure to bring a claim against the state a "cold-blooded financial calculation."

In January, the Supreme Court, without comment, refused to accept jurisdiction in the case.

"We expected the court to follow years of Arizona precedent which would allow the suit to go forward," McGillicuddy says. "This is something quite different."

McGillicuddy and Tobler say the decision has created a bad precedent in Arizona law and puts Rayann O'Bier in an absurd position.

"Basically, she was given little chance of getting fair compensation," McGillicuddy says.

Here's why:

The decision makes it difficult, if not impossible, for the O'Biers to settle with Dietrich out of court. If they did, there would be no forum in which to raise the issue of the state's liability, which the court said was a prerequisite for any malpractice suit against McDonald's firm. In this scenario, there would be no finding the state at fault and so there would be no subsequent case against McDonald's firm.

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.

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."

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