Key Points

  • The Kentucky Court of Appeals unanimously affirmed an $11 million pain-and-suffering verdict for four motorcyclists injured when a Freedom Waste Services truck spilled human waste on Interstate 24.
  • A photograph of a latch part added the day after the spill was admissible under the impeachment exception to KRE 407 because the driver had circled it at deposition as present before the crash, contradicting his claimed certain recall.
  • The court held the photo survived KRE 403 balancing because Freedom Waste's own defense put the driver's memory and the company's diligence before the jury, and the company sought no limiting instruction.
  • Unobjected-to arguments and evidence, including out-of-state corporate remarks, a send-a-message closing, a 'want ad' hypothetical, the KSP citation, and the lack of post-accident drug testing, did not amount to palpable error individually or cumulatively.
  • The excessive-damages challenge was largely unpreserved because Freedom Waste tendered jury instructions with the same 'not to exceed' amounts the jury awarded, and the trial court's denial of a new trial was not clearly erroneous.

The Kentucky Court of Appeals on Nov. 13 upheld an $11 million jury verdict for four motorcyclists who crashed on Interstate 24 after a waste hauler's truck spilled human sewage across the highway, rejecting the company's objection to a photo of a repair it made the day after the wreck.

A three-judge panel unanimously affirmed the Lyon Circuit Court judgment against Freedom Waste Services LLC and its driver, James H. Watts. Judge Cetrulo wrote for the court, joined by Judges A. Jones and L. Jones. The jury awarded $3.5 million for pain and suffering to Joseph McAlpin and $2.5 million each to Mark Mudryk, Jerry White and David Hendriks. The four riders' medical bills ranged from $2,307.60 to $61,128.68.

The published opinion holds that a post-accident fix may be used to impeach a defense witness whose memory anchors the defense. Kentucky Rule of Evidence 407 bars evidence of subsequent remedial measures, meaning repairs or precautions taken after an accident, when offered to prove negligence, but it permits such evidence for other purposes, including impeachment. The panel also held that Freedom Waste largely forfeited its damages challenge by proposing the same dollar caps in its own jury instructions.

On May 31, 2022, Watts picked up a container holding thousands of gallons of human waste at the Oak Grove Sewer Plant. About 30 miles into the trip, he noticed waste spilling onto both westbound lanes. The riders behind him, traveling 60 to 70 miles per hour, lost traction in the "dark, sludge-like material" and were thrown onto the pavement.

Freedom Waste conceded at the May 2025 trial that it was responsible for securing the load. Its defense was that Watts had latched the door and secured it with a pin and safety chain. No pin or chain was found at the scene, and the company repaired the latch the next day, leaving Watts's testimony as the only evidence of the container's condition before departure.

At a 2024 deposition, Watts circled a block on a photograph of the latch, Plaintiffs' Exhibit 13, and said the safety chain passed through it before he left the plant. The block had been added the day after the crash. At trial, Watts said he had "absolute certain recall" of the container but did not remember circling the part, and the plaintiffs played the deposition video over Freedom Waste's objection.

Citing the Kentucky Supreme Court's 2020 decision in Thomas v. University Medical Center, Freedom Waste argued the trial testimony did not directly contradict the deposition. Cetrulo wrote that the testimony produced "a literal, word-for-word contradiction regarding the presence of the block mechanism," and that the photo was used to test Watts's memory, not to prove negligence.

The panel also held the photo was not unfairly prejudicial under KRE 403, which lets judges exclude evidence whose value is substantially outweighed by the risk of prejudice. Freedom Waste had told jurors no one could explain why the latch failed and elicited testimony from Watts's manager that Watts was "one of his best drivers." "Freedom Waste opened the door to such evidence and attempted to use KRE 407 as both a sword and a shield by promoting its own version of events yet foreclosing Appellees' opportunity to challenge it," Cetrulo wrote. The company never sought a limiting instruction, the court noted.

Because Freedom Waste had not objected in time at trial, the panel reviewed six other complaints only for palpable error, a standard that grants relief for an unpreserved mistake only if it is obvious and causes manifest injustice. They included a closing remark that the people responsible were "sitting in Arizona and New Jersey" and a deposition comment by plaintiffs' counsel about "waste management in New Jersey" that ended, "I want both my legs." The court held that neither remark, even if improper, warranted relief, noting that the company never objected to the New Jersey comment at any stage.

The court found counsel's closing aimed more at deterring this defendant than at sending a message to the community. "While counsel's statements were impassioned, they do not warrant a new trial under review for palpable error," Cetrulo wrote. Nor did a "want ad" hypothetical, asking whether the riders would have accepted money to crash into the spill, violate the ban on golden rule arguments, which ask jurors to imagine themselves in a plaintiff's place.

On testimony that the company skipped post-accident drug and alcohol testing, the panel wrote that the relevance was "marginal at best" absent evidence Watts was impaired, but the references were brief and drew no objection. It found no palpable error in testimony about a Kentucky State Police citation issued to Watts, and held that the alleged errors did not add up to an unfair trial. "The law does not guarantee a perfect trial, but a fair one," Cetrulo wrote.

On damages, Freedom Waste called the awards shockingly excessive, noting that one rider received $2.5 million with $2,307.60 in medical bills. The panel held the challenge largely unpreserved because the company's own proposed instructions contained the same "not to exceed" amounts, which the jury awarded in full. Under the state Supreme Court's 2013 decision in Gibson v. Fuel Transport, the panel said, a defendant must specifically object or propose a different cap, and arguing against the amounts in closing is not enough.

The panel also found no clear error in the trial judge's denial of a new trial. The riders were "thrown from their motorcycles onto a busy interstate and into human waste," the court wrote, and some needed surgery or physical therapy.

Griffin Terry Sumner of Louisville argued for Freedom Waste and Watts. Brandon L. Peak of Columbus, Georgia, argued for the motorcyclists.

The ruling leaves the Lyon Circuit Court judgment in place. The panel held that Freedom Waste was not entitled to the new trial it sought.