Tara Brown, Rogers’ sister and the administrator of Rogers’ estate, sued KRW Plumbing Inc.; Richard Williams, owner of KRW Plumbing; South Dayton Builders and Remodelers Inc.; South Dayton owner Timothy Dickey and real estate developer Donald C. Wright, who owned the lot and hired South Dayton, which in turn hired KRW.
Now, Craig Matthews, attorney for Brown, says there will be no trial.
Judge Angelina Jackson was considering a motion for summary judgment from defendant Donald Wright, a motion that an earlier judge in the case had dismissed, Matthews said.
Matthews expected a written ruling from the judge in coming days.
“We are very disappointed,” he said. “We intend to appeal this to the Second District Court of Appeals, and we’re hopeful for a favorable outcome.”
The courtroom had been filled with possible jury members at about 12:40 p.m. Monday. Fifteen minutes later, those people filed out and left the courts building on North Perry Street.
Earlier this month, Jackson ruled that attorneys for Brown may make arguments about cell phones lost by some of the defendants.
Jackson ruled that a jury may make “reasonable conclusions” that the defendants’ phones offered evidence helpful to the plaintiff’s case, Matthews said earlier this month.
However, on Monday, Matthews said Jackson believes the plaintiff cannot rely on an inference that the loss of those phones shows the phones may have contained evidence favorable to the plaintiff’s case.
“The court has ruled that our expert may not rely on that inference, to form a conclusion, drawing a proximate cause line from defendant Wright to the death of Mr. Rogers,” Matthews said. “And without the expert, the court is of the opinion that we cannot take the case to the jury.”
Plaintiffs contend that phones belonging to three defendants or people linked to the case — Wright, Wright’s son Scott Wright and Dickey — held text messages and information relevant to the case. Brown’s attorneys assert that the defendants failed to preserve the phones in anticipation of the lawsuit.
“Ms. Brown maintains it is undisputed that there were at least five cellphones that Mr. Wright, Scott Wright and Mr. Dickey used to communicate with one another during the construction project,” Judge Jackson wrote in her recent order. “The evidence supports Ms. Brown’s assertion.”
The judge noted in that earlier ruling that Dickey testified at a deposition that he dropped two cell phones into a lake. Scott Wright testified at a deposition that he also had two cell phones, but he could not say where either of them were, she wrote.
A message was left Monday for attorney Brian McHenry, who represents the estate of Donald Wright.
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