Death Race 2000

Pay or Play

Mercury appealed the case to the Western District Court of Texas and the Fifth Circuit Court in New Orleans, then petitioned the Fifth Circuit for a rehearing. All of Mercury’s appeals were denied, which cleared the way for the damages portion of the civil trial in Santa Monica. (Based on the doctrine of collateral estoppel, which forces competing venues to recognize each other’s findings in the interest of avoiding legal chaos, liability was now established.) The mothers of both victims testified. Red chose not to take the stand and, after deliberating for two days, the jury, by a vote of nine to three, awarded $500,000 to each plaintiff, plus an additional $12,000 to Nilda Roos for burial costs.

Illustrations by Kiersten Essenpreis

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More About

• Eric Red
• Kenny Hughes
• Herbert Rubin
• Law
• Criminal Law

Lloreda (as it turns out, not overly humble in his moment of victory) declared, “This is David and Goliath, and we pretty much gave them a good whipping. In every phase of this case, I’ve been successful. Every round, I delivered a terrible series of body blows, weakening them. They are staggering around the arena. .?. .”

Mercury once again appealed, claiming that a key witness — Kenny Hughes, the second driver — had been out of the country and unavailable for deposition, despite his having gone to the office of Mercury’s lawyer three times, by his own count, to retrieve his insurance check, which he eventually got. In appellate court papers, Red claims that Hughes' testimony would show that Red was unconscious and acted involuntarily. Brandon Baum claims that he has proposed numerous times that, in lieu of a civil judgment, Mercury Insurance make a tax-deductible donation in the name of Noah Baum to sponsor a scholarship in environmental studies — for amounts as low as $100,000. Mercury allegedly refused, despite its exorbitant legal bills. Red’s civil appeal was denied last June 10, and the California Supreme Court refused to grant certiorari.

But in what could be a dramatic third-act reversal, Red has filed a legal-malpractice suit against his Mercury attorney — a legal strategy whereby he might still avoid paying damages and walk away from this whole affair. Through a spokesperson, Barbara Sayre Casey (of corporate PR firm Casey Sayre & Williams), Red alleges that he was led astray by Mercury’s legal team; that he realized too late the “enormous consequences” of his bankruptcy bid in Texas; and that Mercury’s lawyers “threw the case” to get out of their obligation to defend him and his policy. (This after Mercury had spent an estimated $200,000 to $300,000 defending Red in civil, bankruptcy and appellate courts, according to attorney Eric Baum.) If Red can successfully mount a legal-malpractice claim against Mercury, then he could assign the payout from that judgment to the families of his victims and settle out the civil judgment.

On May 15, 2003, Baum and Lloreda submitted a formal request to the District Attorney’s Office for a review of the case, citing new evidence uncovered in the civil trial. That office investigated those claims and declined to file charges. “I would have loved to have charged the guy,” said Detective Mike Fischer, the investigating officer who spent five months on the case. “After going through all this? Give me something. Put me in front of a grand jury, I’ll walk you through everything I did. If I could have shown beyond a reasonable doubt that he had not passed out behind the wheel, this case probably could have been filed as a misdemeanor vehicular manslaughter.”

In fact, the clock is ticking on what possible criminal charges could be brought to bear. For voluntary manslaughter, as is the case with road rage, the statute of limitations is six years, expiring on June 1, 2006. Felony and misdemeanor vehicular manslaughter (with and without gross negligence) carry limitations of three and one years, respectively, both of which have already expired.

A spokesperson for the District Attorney’s Office said simply, “The earlier declination [to prosecute] speaks for itself.”

Meanwhile, five years after the traffic fatalities, Red stands poised to mount a comeback. Among those he met at the 2001 Austin Film Festival was Meredith Casey (Barbara’s daughter), a young Los Angeles filmmaker premiering a short film she co-directed — Earth Day, advertised as “the first slasher movie with Barbies.” By Red’s own account, they became romantically involved in January of 2002, and he moved into her penthouse apartment in May — in a luxury building on Wilshire Boulevard, less than a thousand yards from Q’s. “My girlfriend supports me at the moment,” he stated in deposition that July. “She is a graphic designer and she is independently wealthy.”

Red has continued to attend film conferences and comic conventions — including the Wizard World Comic Convention in Long Beach last March, and again has his own company — jettisoning the former name, Double-Tap Productions, in favor of Line Drive Productions. According to the latest Hollywood Creative Directory, the company operates out of the same Wilshire address, with Red listed as Writer/Director/Producer and Meredith Casey as Director of Development. And beginning in January 2005, Idea + Design Works (IDW) released a five-issue original comic book series titled Eric Red’s Containmentin which, according to the press release, “astronauts are millions of miles away in outer space, trying to fight off flesh-eating zombies.” IDW currently has deals with Columbia, Dimension and Paramount Pictures. Red is also adapting the mid-’90s German TV police drama Alarm for Cobra-11 as a feature film for German finance company Intermedia, and his current film-related income is $65,000.