PORT LEYDEN, N.Y. (Legal Newsline) – The mother of a race car driver killed nearly four years ago by famed NASCAR driver Tony Stewart says she felt cornered into settling her wrongful death lawsuit by her high-profile lawyer who she says threatened to abandon the case if it went to trial – an allegation disputed by the attorney.
Pamela Ward says she would have been satisfied with nothing more than a $1 damage award, as long as the facts surrounding her son Kevin Ward’s death on a New York racetrack were laid out for the world to know at a trial that was supposed to have begun May 7. Instead, attorney Mark Lanier’s firm told her to settle or it would stop representing her and her husband, she claimed in a recent interview with Legal Newsline.
Adding to the pressure to settle was the fact that a child previously thought to be her son’s turned out not to be – “For a year we had no reason to suspect anything other than this was Kevin’s child. It was the main reason we filed the case,” said Pamela Ward, who also voiced her displeasure with the settlement in April to USA Today.
“I think Lanier thought this was going to be a huge case – a baby without a father. But once we lost the baby, we lost our damages, and he felt he would no longer take it to trial because it was not going to be a high-damages case.”
In a statement to Legal Newsline, Lanier defended himself and his firm’s handling of the case, claiming it told the Wards that they would go to trial if a settlement couldn’t be reached.
“This is so wrong, the question is where to begin,” Lanier said. “(Lanier Law attorney Jud Waltman) specifically told her right before settlement that we would try her case if it didn’t settle.
“(T)he case certainly lost economic value when there was no surviving child. Under New York law, the parental damages for loss of an adult child are quite limited.
“I feel bad for Ms. Ward and wish we could have helped her find peace of mind. But I don’t think that the justice system could give her that.”
Ward feels differently, upset that first the criminal justice system, and then the civil justice system failed her and her husband, Kevin Sr., after the suit they filed against Stewart over the 2014 death of Kevin Jr. at a Super Sprint event at Canandaigua Motorsports Park in Ontario County, N.Y., settled out of court last month
During the 14th lap of the race, Stewart’s car made contact with Ward’s, causing Ward to crash into the wall at the high side of the track. And while the race was under caution, Ward got out of his vehicle and made his way a short distance down the track on foot.
“While the race was under a caution flag, 13 other cars passed Ward on the low side of the track before Stewart made his way all the way around the track to the point where he was approaching Kevin A. Ward, Jr. ‐ and 6 cars safely passed Ward while he was standing on the track,” the complaint says.
“Unlike the other race car drivers who had just passed by Kevin A. Ward, Jr., instead of going low on the track per the regulations of the event, Stewart came up the track directly toward Kevin Ward, Jr. As Stewart’s car approached Ward, who was standing on the track, Stewart climbed up, gunned his engine, causing his 700 horsepower vehicle to slide and strike Ward with his right rear tire, crushing Ward and flinging his body an estimated 25 feet down the track.”
Ward contends that prosecutors should have held Stewart responsible for “at least” vehicular manslaughter. But she claims an investigation focused on Kevin getting out of his car, and not on Stewart’s aggression.
It was also determined that Kevin had levels of marijuana in his blood. Stewart's attorney did not immediately respond to a request for comment.
“I’m sorry, it’s not about what my son did, it’s about what Tony Stewart did. He did something wrong. Why didn’t he get charged?”
When filing suit, she turned to the Houston-based Lanier, a personal injury attorney with a history of multimillion-dollar recoveries. One of those, however, was recently nixed when a federal appeals court ruled his “deceptions furnish independent grounds for a new trial” of a $151 million verdict.
Lanier’s firm represented the Wards on a contingency fee basis and said it would drop them as clients if they didn’t accept Stewart’s settlement offer, Pamela claims.
“I couldn’t find another lawyer,” Ward said. “I contacted 10-12 high profile lawyers at that point and no firm was willing to take the case due to the fact that trial was one month away...and the high expenses in paying to get the file.”
Ward willingly accepted the settlement offer, terms of which she said are confidential, because she didn’t believe any other options were available.
“If we didn’t settle, Tony would have gotten away for free,” she said. “At least we got some financial accountability that was better than nothing.”
Ward said she and her husband initially hired Lanier based on advice from others that a “high-profile” attorney was needed because Stewart was going to have the best lawyers available to him.
“We just did a lot of research and Mark Lanier was recommended to us,” she said. “We went and met with them and told them we wanted this to go to trial, and that we did not want to settle. At that time, they said they would take it to trial.”
Ward said she never communicated directly with Lanier as the case proceeded, but rather with another lawyer from the firm, Waltman.
During the three-and-a-half years the case was litigated at U.S. District Court in Utica, N.Y., Ward said three attempts at mediation failed. According to Ward, Stewart would not “cooperate” initially and then he presented terms that they could not accept.
What changed from the time Lanier took the case?
Ward said she has not spoken publicly about it until now, but when Lanier took the case it was believed at the time that her son’s girlfriend was pregnant with his child.
“The criminal justice system failed us. They didn’t charge (Stewart) with one thing. Now that we have a baby and Kevin is not going to be able to take care of this baby, the reason we filed suit was because what (Stewart) did was intentional. We felt someone needed to provide for the baby,” she said.
“That was one of the strong reasons for this lawsuit.”
Ward said that DNA testing later indicated that the child was not Kevin’s.
In spite of New York law which does not provide compensation for the loss of her adult son, Ward said they decided to continue with the litigation because they had obtained evidence that showed the actions of Stewart to be intentional “beyond reasonable doubt.”
“At that point we had lost our damages,” she said, and the move toward mediation began.
After settlement was offered by Stewart about a month before trial, Ward said Lanier told them to accept or he would ask the judge to be dismissed from the case and they could find new lawyers.
She said the tone of messages from the firm was that a trial was unpredictable and that her son might be blamed, but a settlement was guaranteed money.
But she maintains that it was supposed to be about holding Stewart accountable.
“Somehow that was not what it was about,” she said.
“They felt they got us justice because they got the highest amount…they’re talking about Tony Stewart worth $70 million.
“They knew they had us in a position…But lawyers (they) are supposed to work for you.”
Ward said that “in her heart” she doesn’t believe that Stewart meant to kill her son.
“I could be wrong,” she said. “I don’t know what’s in his mind and what he feels. I think he intended to throw dirt on him to show his displeasure. I think that his intentions were basically to tell him, okay, you’re not coming to approach me.”
Ward also expressed frustration from a settlement hearing held before U.S. District Judge David Hurd at which questions posed to her centered on her acceptance of the settlement offer.
“He asked if I felt as if I had no other options than to settle…He gave me a spiel that ‘you did have options.'
“I basically said that we settled this because we wanted accountability…He said, ‘did you sign the settlement?’ Yes, I did. ‘Did you know what you were signing?’ Yes, I did. ‘Did you know that that would be the end of the case?’ Yes…’Then you may sit down.’ I was never given the opportunity to explain.
“I feel a lot of guilt. I will probably live with that. I worked hard to get it to trial. It will be difficult dealing with this, every single day.”
As for Lanier, Ward remains critical.
She said that the USA Today story quoted Lanier as saying that Ward was “referencing the expenses associated with a trial” when she spoke out on insisting on a trial.
“He knew that was not what I meant,” she said.
Ward said that it was "one thing to make us settle... but then don’t lie about it and put words in my mouth. It’s not so much that he went to the press, it’s that he forced us to settle.
“They knew we couldn’t find another lawyer,” she said.
Lanier said he was not putting words in her mouth.
“I had been asked by a reporter why Ms. Ward said she settled the case because of the expense in trying it,” he said.
“I explained that maybe it was because the expenses would be deducted from a recovery and it would have decreased their economic gain. But I wasn’t sure what she was talking about, one would need to ask her.
“I did confirm that we had it on a contingent fee and that we fronted expenses, so she didn’t have to pay up-front costs.”
Getting the case to trial wasn’t primarily intended to make Stewart financially accountable, Ward said.
"I would have walked away with $1 and would have been fine,” she said.
“The Lanier law firm should realize that not every case is about financial gain and money. But that’s their ultimate goal – how can we get the most money.”
-David Yates contributed to this report.