Skid Row

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And when attorneys for the Stewart family tried to get readings for the single wheel path of the northbound lane of that stretch of Highway 89, they were told they didn't exist. It seems the state not only tests just one wheel path, it also tests only one lane of a two-lane highway.

The state measures friction by dragging a computerized device, called a Mu-Meter, behind one wheel of a truck, according to ADOT officials who testified at trial. They take readings only at milepost markers, where they engage the Mu-Meter by turning it at an angle so it drags. They also spray water on that stretch of road so that the measurement is taken on a wet road surface.

State highway workers, according to Delton and others who testified at trial, try to run friction tests and inspections of much--but not all--of the state highway system "every year or so," following predetermined routes in certain areas of the state. But they only travel one direction, in one lane. That's partly because they need lots of water for the test and their truck can hold only so much. It's inconvenient, they said, to go back and forth for water. So they just keep moving ahead.

On Highway 89, the test crew always travels south. Delton and others testified that the northbound lane had never been tested. And the southbound lane hadn't been checked in the four years prior to the accident. No one knew why, the state officials testified.

Still, the effect of bleeding asphalt and differential friction was something that state engineers decided to investigate before the Stewart case went to trial. Delton testified that he knew of a section of highway that seemed like an ideal spot to test the effects of bleeding asphalt--Highway 87 near Chandler.

Delton said he'd driven Highway 87 and been suspicious of it for some time. In fact, he later testified, the road had been in poor shape for as long as nine months before the state decided to use it as a laboratory for a spin-out. State engineers checked old test records and agreed there might be a problem both with friction and with bleeding asphalt.

In May 1996, Delton and Steve Maynard, an engineering technician who worked for Delton, blocked off the road and conducted controlled tests. At 60 miles per hour on wet pavement, their car spun in its own lane, just as Burns had predicted would happen in his 1975 report. And just as Cindy Stewart's car had done on Highway 89.

Delton and Maynard also decided to try the test on nearby Highway 587, south of Sun Lakes, a road that did not seem to be in bad shape. The test vehicle, according to notes Maynard took at the time, spun out on at least four different runs.

Even then, it took the state another few months to resurface the slick spot they'd discovered on Highway 87, according to testimony in the case. And it's unknown whether the state has ever corrected the problem the engineers found on Highway 587.

Rawson, the ADOT spokesman, won't talk about it.

The state's tests of Highway 87 and Highway 587 were its undoing at trial. Juror James Tramel says he and his colleagues believed the state tried to hide those test results from them.

The state didn't mention the tests to Stewart's lawyers until just a few weeks before trial. McGillicuddy says he learned about them only because he'd forced Delton, the engineer, to come back for a third deposition.

The lawyerly wrangling leading up to the Stewart trial was remarkably contentious, taking four years and two special masters to sort out who had to give what evidence to whom.

"The state embarked on a course of conduct that made a mockery of the discovery process and the judicial system," says McGillicuddy.

The state disagrees with McGillicuddy's contention. That's plain from the numerous motions and responses to the plaintiff's motions that are on file in the case.

In December, about a month before trial, assistant AG Deborah Spinner filed a motion she called "Conspiracy Theory(ies)." She notes that lawyers for Stewart and Perdue accused Spinner of "manipulating the witnesses and convincing them to change their testimony to be more favorable to the state."

"These attacks are nothing but a last-ditch effort to save a very weak case," Spinner wrote. "The case should be tried on the merits, not on the mud that can be thrown."

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Patti Epler
Contact: Patti Epler