42 Trial Lawyer • Fall 2022 By Bill Barton OTLA Guardian M outal v. Exel, Inc. was a semi- truck versus bicycle case that my son, Brent Barton, and I took to verdict just before the pandemic shut down trials. An 18-wheel semi tractor-trailer hit two bicyclists on the shoulder of I-84 in the Columbia River Gorge on August 3, 2016. Plaintiffs Eric Moutal, 31, and Andrea Newman, 26, lived in Vancouver, B.C., and were vacationing in Oregon, camping and biking in the Gorge before a planned stay in Portland. They were riding single file with Moutal in the lead and about three feet between them, on the freeway shoulder, which was five feet wide from the fog line to the guardrail. The defendant, Exel, more commonly known to consumers as the shipping company DHL, is a multinational logistics company. As the DHL truck headed west on I-84 towards milepost 52, between Hood River and Cascade Locks, it was in the slow lane. As the freeway gradually turned left, the driver of the DHL truck should have seen two bicyclists on the shoulder some distance ahead. The truck had ample time and room to shift left, into the fast lane, which would have created additional space for the bicyclists. Two eyewitnesses in cars driving behind the DHL truck testified the truck did the exact opposite. The truck veered right, across the fog line, into the bike lane and almost into the guardrail. The truck first hit Newman’s bike and then struck Moutal and his bicycle, nearly amputating his left leg. Perhaps the biggest challenge facing the case was that the plaintiffs were bicycling on the shoulder of an interstate highway. Almost everyone agrees that activity is unwise, and most people assume it is probably illegal. In fact, the default rule in Oregon is that bicycling on the shoulder of a freeway is permitted, except in the few places where ODOT has specifically prohibited the practice. At the time of trial, the only places where a person could not bike on the shoulder of a freeway were in Portland and Medford. But even though it is legal, few people choose to do so. We were concerned jurors would assign comparative fault to the plaintiffs for pursuing a legal activity because they themselves would not make that choice. The defense obviously agreed this was the biggest weakness in our case. The defense planned to attack the plaintiffs for exercising their legal right to bicycle on the side of the highway, alleging the plaintiffs were at fault because they could have ridden on the other side of the freeway (which is illegal) or walked their bikes along the railway tracks (also illegal) or simply called a taxi. We urged the court to prohibit these arguments because a defendant should not be allowed to allege comparative fault against a plaintiff simply for engaging in a legal activity. In other words, a defendant could allege comparative fault against a plaintiff for bicycling unreasonably, such as swerving into the highway, but a defendant should not be allowed to allege comparative fault simply because the plaintiffs were in a place that was allowed. In the pretrial hearing, U.S. District Court Judge Marco Hernandez agreed with our arguments and prohibited the defendant from attacking the plaintiffs for bicycling on the shoulder of the highway. The court allowed the defendant to argue that the plaintiffs swerved into the highway across the fog line, which then became the primary defense argument. At trial, Judge Hernandez allowed limited voir dire by counsel, a gift in federal court. We asked one question of the jury pool, writing on a white board: “Bicycling on the shoulder of I-84 is Bill Barton The Story of a Bike Case Semi vs. Cyclists
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