Judge rules Willhide-Michiulis vs. MMSA will be tried in Mammoth

The civil case involving Kathleen Willhide-Michiulis, Mammoth Mountain Ski Area and Kassbohrer All Terrain Vehicles Inc. was in court again on Thursday, September 4.

On March 25, 2011, Willhide-Michiulis became entangled in the tiller of a snowcat produced by KATV and being operated by Clifford Mann at MMSA. Willhide-Michiulis and her husband are suing MMSA and KATV for lifetime medical care of Willhide-Michiulis, who lost one leg, severely injured the other, and suffered a brain injury in the accident.

Judge Stan Eller heard arguments from Willhide-Michiulis’s attorneys, who are petitioning to move the case to Los Angeles on the basis that a trial in Mono County would unfairly bias MMSA and would also be inconvenient for Willhide-Michiulis and other witnesses in the case.

Eller said, “Experience tells me, that a jury is going to be a jury. Frankly, since Dave McCoy has given up the Mountain, the public feeling towards the mountain has changed. I don’t think that they are generally thought of as highly as when Mr. McCoy was running this Mountain. The real issue is what witnesses are really going to be testifying and how inconvenienced they will be.”

Willhide-Michiulis’ Attorney Sharon Arkin insisted on the fair trial issue, saying, “the problems we face are subtle. There is an unacknowledged bias [towards MMSA, since] the resort really impacts the day-to-day economic viability. If it weren’t for the Mountain, this town wouldn’t be here.”

Arkin also argued that the snowcat driver Clifford Mann, a primary witness in the case, creates bias against her client. “There’s a ski race named after him [where] he’s honored every year. He’s viewed as an integral part of the Mountain and this community. That is the issue. He is a revered person and I think jurors are going to have trouble setting that aside,” she said.

Arkin continued by saying that the ski patrol and paramedics, who are listed as witnesses in MMSA’s defense, don’t provide valuable information to the case and do would not all need to travel to L.A. for a trial. “Even if they had anything valuable to provide, they don’t have expert qualifications to justify their ability to talk about the mechanism of injury. They are not experts on that issue. All they can say is that they saw her tangled in the blades of the tiller and she was a bloody mess.”

Arkin said it would be inconvenient for Willhide-Michiulis to come to Mammoth for the length of a trial (which she estimated could last 6-8 weeks) away from her medical support in L.A. due to her “severe physical injuries.

“It would be devastating, both emotionally and mentally, for for her to have to come back here where the accident occurred. It isn’t really necessary to put her through that trauma,” Arkin said.

MMSA attorneys John Fagan and Jill Penwarden argued that it is MMSA’s “fundamental right” to have the case tried in the county where the injury occurred. Penwarden also stated the necessity of their bartender witness, a resident of Mono County, who is presumed to testify that Willhide-Michiulis was intoxicated at the time of the accident. When Willhide-Michiulis blood alcohol was tested at 8:30 p.m., some five hours after the accident, her blood alcohol was at .04, according to Penwarden.

“Immediately she was getting high volumes of O2 (oxygen) that counteracts the effects of alcohol and four or five transfusions of blood, which also counteracts its effects,” Fagan argued, saying that ski patrol and the paramedics smelled alcohol on her breath. “According to our experts, this indicates that her blood alcohol was probably around .13 and that’s what [Mono and Inyo County witnesses] will be the foundation of that to testify.”

“Not one doctor said she would be physically harmed by going to Mono County or needs to go to the doctor every day. They just say she experiences some anxiety,” Penwarden said. “Being inconvenienced is not a basis for exception to the rule. All the cases refer to an imminent threat for basis of moving the venue. Traveling in a wheelchair and with an attendant is an inconvenience, not an imminent threat to her health.”

Judge Eller denied the motion to change venue from Mono County to Los Angeles. Citing a quote from previous case law, he said that citizens of Mono County are fully capable of fairly and impartially administering justice and are no different, intellectually or morally, from citizens in L.A.

As to inconvenience to Willhide-Michiulis, Eller said: “When the court reviews the standard of cases dealing with these issues, the evidence before the court as to the severe inconvenience and psychological impact on [Willhide-Michiulis], while great, still fails to establish that she would be prevented from appearing in Mono County due to a serious illness.

“You’re stuck with me for now and stuck in this court,” he told Willhide-Michiulis attorneys Daniel Hoffman and Arkin.

Hoffman then petitioned Eller for an additional six months to gather witness statements and build his arguments. Although Eller expressed an understanding of Hoffman’s argument, he set another case management hearing for December 4 at 9:30 a.m.