CONFIDENTIAL

SETTLEMENT BROCHURE

Submitted on Behalf of Plaintiffs

Larry Smith, Sandra Smith and Tykinna Smith

To

Defendants Data Road, Inc., Zanett, Inc. and Zanett Commercial Solutions, Inc.

For the Purposes of Settlement Discussion and Compromise Negotiations Only

In the Matter of:

LARRY SMITH, SANDRA SMITH

AND TYKINNA SMITH

v.

DEFENDANTS

JEFFERY G. FRANCIS, DATA ROAD, INC.,

ZANETT, INC. AND

ZANETT COMMERCIAL SOLUTIONS, INC.

Prepared by:

Phyllis Norman

Robert Langdon

LANGDON & EMISON 911 Main Street

P.O. Box 220

Lexington, Missouri 64067

Telephone: (660) 259-6175

Facsimile: (660) 259-4571

www.langdonemison.com

DISCLAIMER

This Settlement Brochure is the property of Langdon & Emison.

This Settlement Brochure is confidential and made as an attempt to settle

Plaintiff’s claim in this matter and is covered by F.S.A 90.408 and Sullivan v.

Galske, 917 So.2d 412, 414 (Fla.App. 2 Dist., 2006). Sullivan held that the general

rule is that evidence procured from settlement negotiations is to be excluded at

trial. Sullivan, at 414. Moreover, Florida’s Rules of Evidence prevent the use of

events and statements at settlement from being used at trial. F.S.A. 90.408.

This Settlement Brochure is not for public dissemination, but is for the

private and confidential use of those designated by Langdon & Emison.

Any unauthorized reproduction, distribution, exhibition or disclosure to any

other person without the express written permission of Langdon & Emison is

expressly prohibited.

Sandra and Tykinna Smith prior to collision

Larry and Tykinna Smith prior to collision

I.

INTRODUCTION

&

BACKGROUND

A. INTRODUCTION

The Smith’s are a very close family who made the most of life and enjoyed every moment

with family and friends. On December 15, 2007 that was all stripped away from them. Larry,

Sandra and Tykinna were passengers in their vehicle being driven by Larry’s sister, Bonita

Poindexter, and were on their way to board a cruise ship for a fun-filled family vacation when

the collision occurred. Defendant Francis negligently drove his 1999 Mercedes Benz in the

wrong direction on Interstate 95 and collided head-on with the Smith’s vehicle. As described in

more detail below, the collision caused by Mr. Francis has drastically changed Larry, Sandra and

Tykinna’s lives forever.

On the evening of December 14, 2007, Data Road/Zanett (“Zanett”) held its annual

company holiday party at the home of one of its officers, John Vaughan. Zanett invited its

employees to attend, and provided alcohol, food and entertainment for the event.

Jeffery Francis, another company officer, helped John Vaughn prepare for the party by

buying alcohol for the event, recommending entertainment, and arriving to the party early to

assist in preparations. Zanett not only reimbursed Vaughan and Francis for the alcohol expense,

but Zanett also hired a bartender, caterer and entertainer. The party was an annual event for the

company and Vaughan (and Charles Deskin, Zanett’s President) testified that the company’s

various regions all have some kind of holiday party. In years past, Data Road/Zanett had held

parties at hotels or other venues, but this particular year to save money the party was held at

Vaughans’ home. Zanett employees and a possible client attended the party and were allowed to

bring a guest.

Alcohol was always expensed at these annual holiday parties, and the company condoned

and encouraged the consumption of alcohol at such parties. Ehlen, who often was put in charge

of organizing these company parties, opined that coworkers were responsible for preventing

other employees of the company from driving drunk when leaving these events, though the

company does not have any written policy to this effect and this situation had never before been

an issue. In furtherance of this unspoken understanding that the company was responsible for

ensuring the safety of its employees and those on the road, Ehlen even testified that someone at

the office shopped around for special rates for hotels nearby the Vaughan residence for the night

of the party in case employees did not want to drive all the way home. The hotel was less than

five minutes from the Vaughan residence, and Francis had made arrangements to stay at that

hotel the night of the party, checking into his room prior to heading over to the Vaughans’.

While at the office party, guests, including Zanett employees and clients, discussed

business matters while enjoying themselves to complimentary alcohol. Many witnesses saw

Jeffery Francis drinking throughout the night, but no one knows how much alcohol he drank.

The Vaughans testified that Mr. Francis left the party at 1:00 or 1:30 a.m. on December 15, and

he was one of the last attendees to leave. No one asked if Mr. Francis was able to drive safely,

nor did anyone keep him from leaving.

Furthermore, there currently exist no facts whatsoever that indicate that Defendant

Francis deviated, detoured, or undertook any intervening social events unrelated to business on

his way back from the company holiday party the night of the collision. Every fact indicates that

Defendant Francis left the company holiday party and headed directly back to his hotel room,

and was planning to fly to Pittsburgh the following day in furtherance of business. Mr. Francis

flew to Pittsburg regularly for work. Further, the parties have subpoenaed all credit card and cell

phone records. All of these records reflect no activity whatsoever within hours of the accident

After leaving the party, Mr. Francis did not return to the hotel room he had checked into

earlier. Instead, he traveled to I-95, an interstate he was familiar with because he traveled it

frequently for work. Mr. Francis traveled down I-95 the wrong way; he went northbound in the

southbound lanes. He did not drive at a cautious speed; the highway patrol estimated his speed

at the posted speed limit, 70 m.p.h., and an eyewitness who saw him shortly before the accident

believed he was going faster than that.

This eyewitness, David Jones, a truck driver traveling southbound on I-95, narrowly

avoided a head-on collision with Mr. Francis. He flashed his lights repeatedly at Mr. Francis’

vehicle and swerved out of the vehicle’s way, but Mr. Francis showed no signs of slowing down.

The eyewitness testified that “[Mr. Francis] never tapped his brake the whole time,” and he saw

at least fifteen cars dodge out of Mr. Francis’ way. The truck driver called 911 and continued

along his way, hoping to avoid witnessing a head-on collision.

However, police could not get to Jeffery Francis in time. Shortly before 2:00 a.m.,

Stephanie Martin tried to swerve out of Mr. Francis’ way. He struck the rear of her vehicle, hit

a guardrail, and then fled the scene. For this incident, he was later charged with leaving the

scene of a crash and driving under the influence with injury to property or person. Then, at about

2:00 a.m., two miles down the road from the first accident, Mr. Francis collided head-on with a

minivan occupied by Larry Smith, his wife Sandra, and their daughter Tykinna. The family was

on their way to Orlando to board a cruise for vacation. After the impact, Mr. Francis’ vehicle

spun around and came to a stop. The Smiths’ family vehicle became airborne, struck a guardrail,

and overturned, coming to rest on its side. All involved in the collision were life-flighted to the

nearest hospital. The Plaintiffs’ sustained serious bodily injury, including significant brain injury.

After administering emergency services, medical personnel drew blood from Jeffery

Francis based on the investigating officer’s observation of a moderate alcohol smell coming from

Mr. Francis. The results of the blood test revealed Mr. Francis was operating his motor vehicle

with an unlawful blood alcohol level of 0.252 and 0.253 grams of ethyl alcohol per 100

milliliters. Based on the results of this blood alcohol test and the severity of the Smiths’ injuries,

police charged Mr. Francis with felony driving under the influence with serious bodily injury.

Smith vehicle after collision Defendant Francis vehicle after collision

II. DEFENDANTS’ LIABILITY

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Data Road/Zannett (“Zanett”) is legally liable for the damages caused to the Smiths by

the drunken driving of its officer Jeffery Francis. Florida recognizes that drunk driving is a

“menace” to public safety. Ingram v. Pettit, 340 So.2d 922, 924 (Fla. 1976). Also, Florida

courts approve of allocating the costs of an employee’s negligence to his employer because “a

business enterprise should not be able to disclaim responsibility for accidents which may fairly

be said to be the result of its activity.” Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914,

916 (Dist. Ct. Fla. 1993). This includes the fault of employers in allowing intoxicated employees

to leave events where the company provides alcohol.

In one case that is strikingly similar to the Smiths’ claim, Florida upheld an award of

compensatory and punitive damages resulting from an accident caused by a drunken employee’s

negligence while driving. The court noted that the employee had left a company event; the

company paid for all expenses, including alcohol and mileage; company clients attended the

event; the company encouraged drinking at the event and other customer events; expensing

alcohol was a custom and tradition of the company and furthered the company’s interests; and

the company employees knew or had reason to know that the employee was intoxicated, leaving

the event, and should not have been allowed to drive. Carroll, 629 So.2d at 915-16.

Similarly, Zannett expected that Jeffery Francis, a company executive, would drive from

the company party to his hotel room. Zannett paid for all the expenses for the party, including

catering, entertainment, and alcohol purchased by Jeffery Francis and another executive. At the

party, clients and employees discussed business matters, and the company encouraged drinking,

as evidenced by the complimentary alcohol and bartender hired for the event. Also, providing

complimentary alcohol to clients and employees at events was a custom and tradition of

Zannett’s that furthered its business interests. Further, Zanett employees knew or should have

known that Mr. Francis was not in a condition to drive. Many employees at the party saw him

drinking throughout the night, and John Vaughan knew that Mr. Francis arrived to the party early

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and left late. Further, his severe intoxication is evident by his actions immediately following

the party: driving towards an unknown destination; entering the highway the wrong way; driving

down the highway the wrong way for several miles; causing one accident and fleeing the scene;

and causing another accident resulting in severe bodily injuries.

Also, it does not matter that the Zanett party was an event held at an employee’s house

rather than at a formal venue. In Carroll, the drinking occurred at a hotel bar after a formal

dinner. There were no formal invitations sent to clients or employees, but it was enough that the

company knew or should have known that its employee “was intoxicated and not in a condition

to drive.” Id. at 917. In another case, the drinking occurred at a casual employee lunch.

Huffman v. Breezes Full Service Car Wash, 956 So.2d 1204 (Dist. Ct. Fla. 2007). That case

involved car wash employees, and in finding that the employee could have been acting in the

scope of his employment by driving home drunk after the lunch, the court made no mention of

the presence of clients or the discussion of business matters. What mattered is that business

managers hosted and attended the lunch and the employee left the lunch drunk and collided with

another vehicle.

As such, Florida law recognizes that Zannett is responsible for the actions of its

employees, including Jeffery Francis, for while driving while intoxicated from a company event.

This liability extends to punitive damages, which the Smiths are entitled to as well.

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III.

LARRY, SANDRA

&

TYKINNA SMITH’S

INJURIES

A. SUMMARY OF SANDRA SMITH’S INJURIES

As a result of this collision, Sandra Smith has suffered severe and debilitating injuries, including:

Head trauma/Brain injury resulting in neurological dysfunction

Loose teeth

Contusion to Left eye

Dislocation and fracture of left wrist

Right shoulder separation

Let lung base contusion

Abrasions to both knees Hypertension

Major Depression

Posttraumatic stress disorder

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B. SUMMARY OF LARRY SMITH’S INJURIES

As a result of this collision, Larry Smith suffered the following injuries:

Head/facial abrasions

Right hand/wrist sprain/lacerations

Right leg sprain/contusions

Back injury – strain

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C. SUMMARY OF TYKINNA SMITH’S INJURIES

As a result of this collision, Tykinna Smith has suffered severe and debilitating injuries, including:

Head trauma/Brain injury resulting in neurological dysfunction

Broken right femur

Torn meniscus

Lacerated liver

Lacerated right heel

Lacerated right eye

Bruised right hip

Bruised pelvis

Punctured right shoulder

Jammed toes on right foot

Severe posttraumatic stress disorder

Major depression

D. PLAINTIFFS’ NEUROPSYCHIATRIC EXPERT

Plaintiff’s Neuropsychiatrist expert is expected to provide opinions in this case regarding

Sandra and Tykinna’s injuries and damages specifically regarding their closed head trauma.

1. NEUROPSYCHIATRIST OPINIONS OF SANDRA SMITH’S INJURIES

Sandra Smith was examined by a neuropsychiatrist on October 2, 2008 for an in-depth

neurobehavioral assessment. The testing consisted of an examination and the administration,

scoring, and interpretation of the following tests: Wechsler Adult Intelligence Scale-III, Bender-

Gestalt Neurological Batter, Hooper Visual Organization Test, Dynamometer, Category Test,

Luria-Nebraska Neuropsychological Battery, Stroop Color Word Test, Wide Range

Achievement Test-4 and a Pain Apperception Test.

The results of this testing were indicative of an individual who currently places within the

borderline range in terms of general intellectual ability. There were marked and significant

discrepancies noted in the testing with clear evidence of neurologic dysfunction. The test further

showed that academically, Sandra is currently reading and spelling at the fifth grade level and

doing arithmetic at the sixth grade level. During the testing Sandra had difficulty dealing with

her pain. She had enormous difficulty completing the entire test phase and was very

disorganized, organic and confused.

The examination and review of Sandra’s medical records revealed that she was clearly a

woman who was functioning fairly well before this collision, and now has permanent and

substantive impairment in many areas.

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2. NEUROPSYCHIATRIST OPINIONS OF TYKINNA SMITH’S INJURIES

Tykinna Smith was examined by a neuropsychiatrist on October 2, 2008 for an in-depth

neurobehavioral assessment. The testing consisted of an examination and the administration,

scoring, and interpretation of the following tests: Wechsler Adult Intelligence Scale-III, Bender-

Gestalt Neurological Batter, Hooper Visual Organization Test, Finger Oscillation Test, Trial

Making Test, Dynamometer, Category Test, Luria-Nebraska Neuropsychological Battery, Stroop

Color Word Test, Wide Range Achievement Test-4 , Pain Apperception Test, Eysenck

Personality Inventory, Beck Hopelessness Scale, Beck Scale for Suicide Ideation, and Quality of

Live Inventory.

The results of this testing are indicative of an individual who places withing the average

range in terms of general intellectual ability. There are significant discrepancies seen in this

testing with evidence of cerebral impairment. In terms of academic achievement, she is reading

at the 12th

grade level, spelling above the 12th

grade level and doing arithmetic at the sixth grade

level. Severe anxiety and depression are present with negative expectancies regarding her future

and her current overall quality of life. Tykinna had considerable difficulty completing the entire

battery of testing due to her depression and other impairments.

A thorough examination along with a review of Tykinna’s medical records revealed a

horrible limp to the right and clear atrophy of the right leg. At the time of the exam, she showed

normal vision, however, she did show photophobia, an experience of discomfort or pain to the

eyes due to light exposure. She also has extreme tenderness in her right leg and in the right knee.

There are problems with focusing, concentrating and paying attention. She can remember no

objects out of three in five minutes. She can repeat four numbers forward but does not

understand the concept of number reversal. Tykinna is profoundly depressed with crying,

psychomotor retardation and suicidal thinking.

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The medical records confirmed the clinical findings that Tykinna problems are clearly

accident related and appear permanent. Her conditions are severe and dynamic, and are known

to have a tendency to deteriorate into Parkinson/Alzheimer/Seizure type symptomatology.

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IV. DAMAGES

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A. PAST MEDICAL EXPENSES

Larry’s medical expenses total $15,104.66

Sandra’s medical expenses total $150,545.58

Tykinna’s medical expenses total $120,270.41

Sandra and Tykinna’s medical treatment is ongoing.

(These numbers are only being used for settlement purposes. Both sides will need to

review records before trial.)

B. FUTURE ECONOMIC DAMAGES

Plaintiff’s Economist & Life Care Plan

Plaintiff’s have hired an economic expert and a Life Care Planner to address the

present value of Tykinna and Sandra’s future life care costs resulting from this collision. The

economist identifies future life care costs as specified by the Life Care Planner. Non economic

damages, such as pain, suffering, loss of enjoyment of life or emotional distress are not

addressed, neither is past medical expenses.

FUTURE LIFE CARE COSTS FOR SANDRA SMITH: $2,808,181

FUTURE LIFE CARE COSTS FOR TYKINNA SMITH: $2,854,294

$3,007,485 (assuming a 10% loss of future earning compacity) to

$4,386,208 (assuming a 100% or permanent loss of earning capacity)

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C. SUMMARY OF ECONOMIC LOSS

1. Summary of Economic Loss for Sandra Smith

PAST MEDICAL EXPENSES FOR SANDRA: $150,545.59

FUTURE LIFE CARE COSTS FOR SANDRA: $2,808,181

TOTAL ECONOMIC DAMAGES: $2,958,726.59

2. Summary of Economic Loss for Tykinna Smith

PAST MEDICAL EXPENSES FOR TYKINNA: $120,270.41

FUTURE LIFE CARE COSTS: $3,007,485 – 4,386,208

TOTAL ECONOMIC DAMAGES: $3,127,755.41 –4,506,478.41

3. Summary of Economic loss for Larry Smith

PAST MEDICAL EXPENSES FOR LARRY: $15,104.66

D. NON-ECONOMIC DAMAGES

While Larry, Sandra and Tykinna have suffered substantial economic losses, those

economic losses pale in comparison to their intangible damages. The Smith’s lives have been

drastically changed by the collision caused by Mr. Francis.

Larry and Sandra have been married for 31 years and have three wonderful daughters –

Tykinna, Katrinea and Xyleena and three grandchildren, ages 7, 5 and 4. Prior to the collision,

the Smiths were an active family enjoying their happy lives in Rocky Mount, Virginia.

Larry is retired from the Military after 20 years of service and currently is a plumber

running his own business, Larry Smith Plumbing. Larry suffered minor injuries in the collision,

consisting of head, facial, arm and leg abrasions and bruising, along with wrist and back strain.

Larry is now the primary caretaker for Sandra and Tykinna along with tending to most of the

household duties, cooking and cleaning.

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Larry Smith prior to collision

Prior to the collision, Sandra was a full-time Head Start teacher for 12 years. She loved

working with children, not only at her job, but at home where she frequently spent time with her

three grandchildren. She enjoyed holding them, playing outside and cooking for them. She

desperately misses not being able to pick up her grandchildren to hold them or play with them

like she used to. Prior to the collision Sandra took care of a lot of the household duties, such as

cooking, cleaning and gardening. Due to her injuries from the collision, she is now limited to

only taking care of her own basic needs. Her ability to drive has been restricted. When she does

drive she has to stop several times to get out of the car due to severe pain when sitting. She

continues to have constant pain in her hand, shoulder, pelvis and right leg and must depend on

others for many daily living activities, such as dressing herself. Sandra also suffered a brain

injury resulting in neurological dysfunction, depression and post-traumatic stress disorder.

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Sandra smith prior to accident

Tykinna Smith is Larry and Sandra’s eldest of three daughters. Prior to the collision,

Tykinna attended Virginia Tech for four years, earning a bachelor’s degree in Business

management. Tykinna then went on to pursue her dream of becoming a massage therapist. She

attended Dabney S. Lancaster Community College earning a degree in Massage Therapy. She

worked full-time at AllState Insurance as a Developer along with working part-time as massage

therapists which were hours required to take the State Boards to become a Licensed Massage

Therapist. Tykinna passed the state boards in 2007. Tykinna also took pleasure in playing tennis,

hiking and camping with friends and family. Prior to the collision Tykinna was an inspiring and

vibrant young woman on her way to living out her dreams. Now, due to her injuries from the

collision, she is only able to work part-time from home and can no longer pursue her life-long

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passion of becoming a massage therapist. She suffered multiple debilitating injuries, as outlined

below, including three breaks in her right femur resulting in numerous orthopedic surgeries, liver

laceration, right heel lacerations and L1 through L4 transverse process fractures. She continues

to have constant pain in her hip, knee and heel and has to use a cane to walk. Tykinna also

suffered a brain injury resulting in neurological dysfunction, depression and post-traumatic stress

disorder. She continues to live with her parents and fears that she will never be able to make it

on her own due to her physical, neurological and emotional injuries.

Tykinna Smith Prior to collision:

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V. DEMAND