The state, in a motion for a new trial that was rejected last month, cites about two dozen things it thinks Maricopa County Superior Court Judge Alfred Rogers did wrong during the trial. Those range from testimony he allowed to instructions he gave the jury during trial--including derisive comments on the state attorneys. "We did not believe those [instructions] were used correctly in the civil court," Dozer says.
For its part, the state Department of Transportation won't discuss any highway safety concerns raised by the case. ADOT public information officer William Rawson, who is not familiar with the case, says it's his policy not to talk about anything having to do with any lawsuit. He declined to address statements about road repairs and inspection programs by ADOT officials during their testimony. He says no one else in the agency will talk about such matters either, although he apparently didn't ask anyone else if they would.
But he does suggest that the jury may have had its eye more on the state's checkbook than its road program.
"Speaking in very general terms," Rawson says, "we have very deep pockets and people tend to react to that, including juries and judges."
One of the things Rawson won't talk about is how ADOT inspects Arizona's highways and how long it takes the state to fix potentially deadly road problems.
Cindy Stewart's family alleged that the spot where the accident occurred, the northbound lane of Highway 89 at Milepost 315.5, suffered from two fatal flaws: a condition called "bleeding asphalt" where oil in the road seeps to the surface, especially in hot weather, giving the pavement a glossy look; and unevenly worn wheel paths.
Moreover, on that 105-degree August afternoon, a summer thunderstorm had dumped water on the highway. And it apparently puddled on the strip of oil-slick pavement where a poorly engineered driveway at the Word of Life Church funneled it onto the road. (The state had approved the church construction project, so the church was not brought into the lawsuit.)
The "blue Honda was right in front of me traveling at approximately 50 mph traveling south," eyewitness Betty Lembach of Prescott Valley told the police officers who investigated the accident. "The white car was going north and must have hit a slick spot in the road and turned right into the blue car. There was no way for them to keep from hitting each other at that time."
But the car in which Cindy Stewart was riding didn't just skid or hydroplane on a wet road, the family contends. There were no skid marks. They say the car spun sideways in its own lane, something that happens if the lane has been worn down unevenly. They say eyewitness reports like Lembach's as well as the state's own highway tests back up this theory.
The state has been aware of the potential hazards of uneven wheel paths since 1975. That's when a state research engineer named John Burns studied the effects of what he called "differential friction," especially in wet conditions, and evaluated the effectiveness of the state inspection program that tests wheel paths.
"Results of the program have shown that differential friction can cause an extremely hazardous condition for a braking vehicle," Burns wrote in his 1975 report. He recommended that the state rethink the way it tests wheel paths to better catch significant differences in friction levels.
But the state never changed its testing method, according to ADOT engineer James Delton, who testified at the Stewart trial. So 23 years after Burns raised the red flag about differential friction, the state still checks only one wheel path, rather than checking both to see if one is remarkably different from the other.
"In 1975, you only tested one wheel path, and in 1997 you only test one wheel path, correct?" Terry McGillicuddy, attorney for the Stewart family, asked Delton during the trial.
"That's correct," replied Delton, who described himself as a pavement-management engineer who oversees the group that checks the friction of the roads, among other things.
Pressed by McGillicuddy, Delton conceded that the state could measure both wheel paths by adding one employee.
The stretch of highway where Cindy Stewart died had not been resurfaced in 17 years, state engineers testified. No one knows what shape the road was in at the time of the accident or even in the months following it. Not only had the state not tested it, but when Stewart's family asked for the state's permission to send an accident specialist there to try to replicate the accident, they were told they'd have to post a $10 million bond. An accident reconstructionist for the plaintiffs inspected the road and took photos, which he says clearly showed bleeding asphalt. McGillicuddy says the state effectively stopped the family from proving there were flaws in the road by asking for the exorbitantly high bond.