By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
As horror stories often do, this one started with a bump in the gathering night.
At 6:30 p.m. on May 31, 2000, Kenny Hughes had just passed Bundy in West L.A., heading east on Wilshire. A minor celebrity in skate circles, Hughes stands out in any crowd — a 6-foot-5, rail-thin African-American with a bushy Afro, whose small-town North Carolina deference belies a competitive streak which at 26 had won him a sponsorship with DC Shoes and, later, Element Skateboards. According to his police statement, riding next to him in his white 1995 Honda Accord was Aine Behan, his Irish girlfriend, whom he’d just picked up at the airport. Hughes himself was just back from Barcelona, where the skating is good, and was following three friends in the car ahead of him, looking for a motel on their way to Vegas. They made the light. He didn’t.
Locked in animated conversation, neither he nor his girlfriend noticed the 1994 black Jeep Grand Cherokee Laredo approaching them from behind. It hit them at a dead stop, doing minor damage to the Honda. Hughes had the presence of mind to set the emergency brake before stepping out of his car, arms out, horizontal at his sides — wassup? — to inspect the damage. Angry, but in control, he walked back to the driver’s-side window of the car. This all took maybe 30 seconds.
“I get up to his car, and he’s slumped over the wheel, looking out the window towards me with his eyes open,” says Hughes today. “And I was probably there for a second, two seconds, and then the car just started moving.”
According to witness statements, the Jeep struck his car a second time, gradually picking up speed, until it jackknifed the Honda into oncoming traffic. Hughes’s girlfriend was still in the car and scrambled out of the moving vehicle, just as the Jeep slipped off its right bumper. No longer impeded by Kenny Hughes’ emergency brake, the Jeep’s RPMs found purchase, and suddenly it was going an estimated 35-40 miles per hour the wrong way across Wilshire, witnesses told police. It jumped the curb and obliterated a bus stop, scooping up 26-year-old Santa Monica City College English student David Roos, who was running for the safety of Q’s Billiards, located at 11835 Wilshire, immediately behind him. Taking out an outdoor patio of tables and scattering bodies — among them, 34-year-old environmental lawyer Noah Baum, there celebrating his first trial victory — the SUV continued unabated through the plate-glass windows and front doors of Q’s, stopping only after it had moved the heavy horseshoe-shaped mahogany bar, beer taps and freezer units several feet. Bar employees later said that from his vantage point on the west patio, Baum was the first to notice the careening car, and the first to recognize it as a potential threat.
Those drinking inside or watching the Knicks game on TV heard what sounded like an explosion, followed by a spray of glass, wood and dirt from a sidewalk planter. Many assumed it was an earthquake or a bomb — though bombs were not quite so plausible back in those pre-9/11 days. In statements to police, several witnesses reported the Jeep’s driver — Eric Red, then 39, the screenwriter of horror film classics The Hitcher and Near Dark 15 years before, and more recently the director of progressively lesser-known horror fare — was unconscious and slumped over in his seat. But others remember him wide awake and staring straight ahead, both before and after the impact. One of these, Jason McCourt, was pinned to the bar and began yelling at Red to back up. Bartender Donal Tavey came over the bar and onto the hood of the Jeep, then tried to help him get it into gear. “He went from ‘park’ to ‘reverse’ and back, then started screaming and shaking his head like he was a little kid,” reads Tavey’s police statement. Others told police that Red was “shouting and flailing his arms around” or “shaking hard and screaming like a lunatic.” Another bartender got Red out of the Jeep and popped it into neutral, after which the crowd managed to rock it back off the bar. Miraculously, McCourt was alive, getting off with a broken leg and fractures to his hips and pelvis. But immediately below him, Baum was crushed into a sitting position. Ann Blackburn, a nurse, examined Baum within minutes and reported he was dead at the scene, although she continued CPR until an ambulance arrived.
Rather amazingly, three retired FBI agents — Mike Wacks, Fred Ahles and Richard “Bucky” Sadler — were drinking at the southwest corner of the bar, about three feet from the point of impact. None will comment on the record today, but in his police statement, Wacks — who was once assigned to a detail investigating Carlos Marcello, the notorious New Orleans mob boss widely implicated in the Kennedy assassination — stated: “I looked at the driver after the crash and he appeared awake and alert. It was like he was just a guy in the bar. There was no look of surprise or shock on his face at all.” Sadler’s statement quotes Red as saying, “Is everybody okay? Did I hurt anybody? I didn’t mean to kill anybody.”
Still holding his car keys in his left hand, and bleeding from a small cut on his right eyebrow, Red walked a ways from the vehicle, just in time for Cassady Jeremias, one of Kenny Hughes’ friends in the car ahead of him, to see him pick up a sharp stick and begin ramming it into his chest. Interviewed recently, she remembers thinking, “Well, who’s this joker — he’s not going to kill himself with a stick jabbing himself in the chest?” Undaunted, Red picked up a broken glass off the floor, approximately two inches thick, and slashed once at his neck, cutting it deeply. According to the police report, kitchen worker Ray Garcia and several patrons wrestled him to the ground, then tied a waiter’s apron around his throat to stanch the flow of blood and covered him with a tablecloth to prevent shock. Red continued to speak, telling Wacks, “Don’t bother, I just want to die,” and Garcia, “Don’t bother with me, I’m not worth living.” Alan Levy, who was headed eastbound several cars behind Red and saw the whole thing, told police, “This looked like road rage to me.” And in a follow-up police phone call, bartender Tavey claimed he believed the collision was an intentional act.
Red was spirited to UCLA Medical Center, as were many of the victims, where he was kept on a ventilator in intensive care. The next day, David Roos succumbed to massive internal injuries in the same hospital, bringing the death toll to two. Medical authorities quickly ruled out drugs or alcohol, and Red remained an additional 11 days for psychiatric observation — against his will, he declared under oath. According to Red’s medical report, his doctors noted a scar on his right wrist, which Red said was from a construction accident in New York City in 1981. In an odd footnote, Red was admitted to UCLA under the name Mario Kan. He claimed later under oath that this was standard procedure for nominal celebrities, or for anyone involved in a controversial matter that might attract press attention, and that the name had been selected for him. Yet UCLA spokesperson Roxanne Moster says a patient would have to formally ask to be admitted under an alias. “They would have to request it from their side,” says Moster.
Despite an initial flurry of media coverage, with Red sequestered in the UCLA psychiatric ward and no one around him talking, the entire bizarre incident remained shrouded in mystery. (The traffic collision report labeled the incident “Auto vs. Auto vs. Building.”) But as the investigation dragged on through the summer and fall, an explanation began to emerge.
In a meeting with Detective Mike Farrell and attorney Arthur Greenspan at police headquarters a month and a half after the collision, tapes and transcript of which are in the police record, Red claimed that after working all day on the budget for his latest project, a horror film titled Teacher’s Petslated for Artisan with Pamela Anderson attached, he left his apartment at 855 Moraga Drive to drive to the McDonald’s on Wilshire. He had canceled his standing every-other-Wednesday dinner with his 13-year-old daughter — a visitation arrangement reached after much rancorous court wrangling with his ex-wife Taia — due to chronic ankle pain from an old sports injury.
Passing Q’s on the right, Red turned left into the McDonald’s parking lot, where all five spots and a handicapped-parking space were full, when he suddenly began to feel “lightheaded and nauseous.” Exiting onto Brockton Avenue, he pulled back into rush-hour traffic on Wilshire, hoping to find a parking place. At that moment, triggered by the pain in his ankle, yellow spots began to fill his field of vision, and he blacked out. While he was unconscious, the Jeep changed lanes and negotiated the 175 yards to the light at Westgate, and Kenny Hughes’ Honda. When he woke up, he was in Q’s amid the pandemonium of the aftermath of his accident, and he tried to commit suicide for the first and only time in his life. “I was in an absolute, overwhelming condition of panic, horror and shock,” he said in his deposition. “I was not in my right mind.”
Moreover, he offered a medical explanation: Since 1994, Dr. Herbert A. Rubin, a Beverly Hills gastroenterologist, had been treating Red for syncope, a fainting condition for which there was no known cause or cure. He had suffered five or six such episodes of “frank syncope” over the past 10 years, and many more episodes of “near-syncope,” all allegedly well-documented — although none of them while driving. He had also undergone a series of tests at UCLA at the time, and could provide medical records and firsthand testimony to corroborate everything.
On December 8, after six months of investigation and to little media fanfare, L.A. Deputy District Attorney Robert Savitt announced there was insufficient evidence to file criminal charges. Red’s driver’s license was suspended indefinitely on October 10, 2000 for negligently causing or contributing to a fatal accident. He claimed afterward, “I’ll never get behind the wheel of a car again.”
Now, five years later, after an expensive and grueling civil action that saw many of these initial assumptions called into question, an excoriating decision by a Texas bankruptcy judge and a million-dollar civil judgment against him, not to mention questions about the parallels between art and reality, this mammoth legal juggernaut is finally coming to an end. Red has continued to demand a jury trial, even as his fifth appeal was denied by the California Supreme Court last September 21. (He is currently appealing the case to the U.S. Supreme Court.) Meanwhile, plaintiffs’ attorneys — among them, family members of the victims — have unsuccessfully lobbied the District Attorney’s Office to reopen the criminal case. With Michael Bay and Focus Features/Universal set to remake his mid-’80s horror opus, The Hitcher, and Red claiming legal malfeasance on the part of his own attorneys, he could walk away from any liability, criminal or civil, and make his long-imagined comeback.
It’s as if the whole thing never happened.
The traffic fatalities on Wilshire were by no means Eric Red’s first brush with controversy. Born Eric Joseph Durdaller in 1961 in Pittsburgh, the adopted home of George Romero and Night of the Living Dead, Red was raised in Philadelphia and later Brooklyn, where he graduated from St. Ann’s High School in 1978. “My father was a metallurgical engineer and photographer and my mother was an actress. They were divorced when I was young,” he says today. After the death of his father in May 1977, he changed his surname to Red and briefly attended Ohio’s Overland College and Manhattan’s New School of Social Research. He made a short film, Gunmen’s Blues, which starred Darwin Joston from John Carpenter’s Assault on Precinct 13. When that failed to get him directing work, Red took a drive-away car cross-country in 1983 to Austin, Texas, the home of Tobe Hooper and The Texas Chainsaw Massacre, where, for seven months, he drove a cab, dated a local country singer and hung out with his uncle, the author of 14 self-help books on child and parenting issues.
He also managed to sell his first script, The Hitcher, on the strength of a query letter that read in part, “It grabs you by the guts and does not let up, and it does not let go. When you read it, you will not sleep for a week. When the movie is made, the country will not sleep for a week.”
A powerful, disturbing film well-deserving of its place in the cult pantheon, The Hitcher, released in 1986, is an existential horror movie in which former teen star C. Thomas Howell takes a drive-away car cross-country from Chicago to San Diego (by way of Texas). There, he picks up hitchhiker Rutger Hauer, a psychopath without portfolio who systematically terrorizes him into delivering the suicide that Hauer himself seems incapable of administering.
“Why are you doing this to me?” Howell asks at one point.
“You’re a smart kid,” says Hauer. “Figure it out.”
The film is extremely gory, especially for its time (one of the producers calls it “a bloody, wet film,” in an exhaustive 1986 profile in the L.A. Times), and yet it suggests much more. This is especially true in the money scene, one of those graphic moments that people talk about after they leave the theater — which Red professionally terms “rippers” — in which a young Jennifer Jason Leigh is drawn and quartered by an 18-wheeler, for no apparent reason other than that Janet Leigh (no relation) unexpectedly dies in Psycho.
Red has widely claimed that the film was based on the Doors song “Riders on the Storm”: the ominous thunderstorm at the beginning, the “killer on the road” and the rest of it; the hitcher’s name is “John Ryder.” The film's influence can easily be seen in modern-day mainstream horror fare like Breakdown, Joy Ride and Jeepers Creepers. Historically, it is probably a bridge between the slasher or splatter genre on display in the grindhouses of Times Square in the late ’70s, during Red’s adolescence — The Driller Killer, I Spit on Your Grave, Bloodsucking Freaks — and at least the impulse behind those mainstream horror franchises (Halloween, Friday the 13th, A Nightmare on Elm Street) that continue to serve as cash cows for the studios two decades later.
But perhaps for the same reasons it garnered such cult status, The Hitcher also struck a nerve among critics. No less than Roger Ebert awarded the film zero stars in the Chicago Sun-Times, calling it “diseased,” “corrupt” and “reprehensible.” “What is particularly sick about The Hitcher,” reads Ebert’s review, “is that the killer is not given a viewpoint, a grudge or indeed even a motive.” Leigh’s death “is so grotesquely out of proportion with the main business of this movie that it suggests a deep sickness at the screenplay stage.” Yet in a way, the lack of any back-story or credible motivation makes the film more unnerving, refusing to let the audience off the hook with rationalizations or narrative diversions. The hitcher himself remains a cipher from start to finish: “No prison record, no driver’s license, no birth certificate,” as a policeman describes him. At every turn, no matter where the protagonist flees, the hitcher is already waiting for him — at a gas station, a diner, on the highway, in a motel room. There is a fairy tale quality about him: He can slaughter everyone in a police station without waking Howell’s character, or abduct a woman from Howell’s motel room and truss her to a tractor-trailer rig without disturbing him in the shower. “Is he magic? Is he supernatural?” asks Howell in a documentary on the European DVD.
“John Ryder? That’s a rental company,” says Hauer on the same DVD. “To me he doesn’t exist; he’s just a ghost that comes out of the desert.”
To me, at least, the most persistent explanation is that Howell and Hauer are actually the same person, two sides of a split personality, and the film is an allegory for schizophrenia — with one side goading the other into suicide. Moments after Howell has picked him up, Hauer’s hitcher holds a knife to his throat and commands, “Say four words: ‘I-want-to-die.’” Unable to do so, Howell screams, “I don’t want to die!” and pushes his assailant out the open passenger door. Later, overcome by his circumstances, Howell holds a police revolver under his chin, but is unable to pull the trigger. As a policeman says to him, not quite able to articulate the rather squeamish strain of homoeroticism running throughout the film, or the pronounced father-son relationship that bonds them, “There’s something strange going on between the two of you; I don’t know what it is, and I don’t want to know what it is.”
Red resolutely maintains his films are not autobiographical. The closest he has come to discussing his own background is in a 2001 online interview at Buried.com: “It’s hard to point to any other specific autobiographical references, but I came from a problematic family background, and on Body Parts [a serial killer’s limbs are donated to various accident victims, which he then controls from beyond the grave] and Bad Moon [an anemic-werewolf rehash], I was drawn to material where a stable family is threatened by a trusted loved one undergoing increasing psychosis or a supernatural variation on a violent mental illness or schizophrenia. That to me is true horror.” Addressing the plight of a young boy kidnapped by hit men in Cohen and Tate, the film Red leveraged his early success into directing in 1989 at age 28, he says, “I had a great feel for that character, a kid who has to survive by his wits in a dangerous world where he is never safe. Sometimes it is less the specifics of your life than the place that you are at in your life emotionally that shows up autobiographically in the writing.”
But according to Hitcher director Robert Harmon, “At the risk of inspiring Eric’s wrath, I remember Rutger [Hauer] once said — and I agreed with him completely — ‘Eric has no idea what he wrote.’ . . . I think that might be particularly true of someone like Eric, because Eric’s great talent is that — at least in my experience of him — he has this very laserlike worldview that’s very unusual, and most people don’t share it, but it’s very consistent and it’s very skewed. So if Eric is writing from his gut and not his head, which is a fair assessment, all kinds of stuff is going to find its way into these pages, far beyond whatever the plot may be.”
Whatever the explanation, there are a number of similarities between elements in Red’s films and unproduced screenplays and the incident on Wilshire. Characters get run down by cars or trucks at the end of The Hitcher, Near Dark, Blue Steel and Undertow. (The last three are a trilogy of scripts Red wrote with director Kathryn Bigelow; she refused to comment for this article, as did many of those contacted.)
Both Body Parts and Undertow feature traffic accidents early on, and The Hitcher opens with a near head-on with a semi, and famously pulls a woman in half with an 18-wheeler. In Body Parts, when a basketball player sporting a serial killer’s transplanted legs is stopped at a traffic light, the autonomous leg stomps down on the accelerator, careening him into traffic, just as Hauer pushes Howell’s foot down on the gas at the start of The Hitcher to bypass one of his roadside victims. In Red’s draft of Alien 3, a character climbs into a tractor-trailer and plows through rows and rows of aliens. And in an unproduced script titled Highway to Hell, written in early 1999, a year before the fatal traffic incident, a Kenworth W900L tractor-trailer truck possessed by the spirit of a serial killer wreaks havoc on the Texas freeways. “It’s my truck that’s killing people, and I can’t walk away and say it ain’t my responsibility,” says truck driver Sonny Ray Slaughter.
Nor is there any dearth of slit throats or broken-glass-brandished-as-weapon — especially in bars. In his opening monologue in The Hitcher, Hauer’s character asks, “You got any idea how much blood jets out of a guy’s neck when his throat’s been slit?” Later, a German shepherd laps at a policeman’s sliced neck. In a memorable set piece from Near Dark, a literate horror film that presents vampires as the drifters out of In Cold Blood or a latter-day Manson family, the creatures terrorize a roadhouse, slicing bartenders’ and waitresses’ throats and filling their beer mugs like beer from a tap. And in Body Parts, a transplant recipient (or rather, the killer’s arm, which has been grafted onto him) grabs a beer bottle and breaks it over a fellow patron’s head.
“[In] the type of film that I do — action films,” says Red under oath, “vehicular action sequences, crashes, are as routine and commonplace as the use of horses in westerns.” More recently, in a statement Tuesday to the Weekly, Red rejects any similarity between his art and reality. “It is ludicrous and sensationalistic to draw a parallel between a filmmaker's work and real-life tragedy.”
Within days of the accident, families of the victims mobilized to bring a civil lawsuit in Los Angeles Superior Court, with the trial to be held in Santa Monica. Nilda Roos, the mother of David Roos, is a Chilean-born Sephardic Jew, a social worker who immigrated to this country 30 years ago, working to earn a bachelor’s degree and enough credits for a master’s (she is just shy her thesis on sexual abuse in children) while raising three children as a single mother. David, her youngest, was studying to be an English teacher. A small-boned, attractive woman, she speaks in measured tones that, five years later, still conceal a great animate anger. “He was very close to me, a good friend, so intelligent,” she says. “In my opinion, I feel that a person, a life, is the supreme [entity] in the universe. Nobody has the right to kill another person. . . . I don’t understand this case at all.” Nilda Roos was represented by Carlos Lloreda (replacing Ron Sokol, her first lawyer), a half-Colombian, half-Mexican personal injury/wrongful-death attorney and comical Columbo type who keeps autographed posters of bullfighters in his office.
In contrast, Noah Baum came from a family of lawyers. Although his mother, Willa Baum, almost 80 but still forceful and articulate, is the other plaintiff of record, the civil trial was largely driven by Noah’s brothers Eric, a vice president of Legal Affairs for Sony, and particularly Brandon, currently at Mayer, Brown, Rowe, and Maw, a prominent Chicago-based firm with offices in the Bay Area. Brandon Baum spent 10 years early in his career as a prosecutor in Contra Costa County in the homicide gang unit, mainly trying murder, rape and felony bodily injury cases — hard-won procedural experience he has tapped in pursuing what he believes was an intentional crime investigated as a traffic accident.
Mercury Insurance, Red’s liability carrier, automatically offered to pay the policy limit of $15,000 per victim, or $30,000, which was rejected out of hand. For one thing, Red was driving on a suspended license resulting from an at-fault collision in October 1999 that occurred while his insurance had lapsed. Although he later told police he was unaware his license was ever suspended, he still managed to renew it in December 1999, even though it was not due to expire, and before police discovered his insurance was out of compliance. A provision of the suspension allowed him to drive during the course of work — a fact that apparently only came to light after the traffic collision on Wilshire. According to the District Attorney’s case summary, it was only this exception which precluded charges from being filed against him. Red later admitted under oath that he had lied to police, and assumed in May 2000 that if stopped, he would be arrested and taken to jail.
Moreover, there were indications Red was besieged with enduring financial pressures and custody issues with his ex-wife. Despite earning, by his own estimate, between $1 million and $1.5 million over the course of his career, and having declared bankruptcy in 1995 (with at least $200,000 in additional earnings since 1996), his financial records indicate that Red owed the IRS between $200,000 and $300,000, the California Franchise Tax Board in excess of $100,000 and an additional $100,000 in back child and spousal support, for which a court ruled that his wages could be garnished. His spacious Mulholland Drive home of seven years with dual city-Valley views had been foreclosed on, and he was living in a small apartment off the 405. He had gone from flavor-of-the-month writer in the mid-’80s to directing Cohen and Tate — which grossed an ignominious $64,000 in extremely limited release — in 1989. His next directorial attempt, Body Parts, had the misfortune of being released two weeks after Jeffrey Dahmer was arrested in Milwaukee for cannibalism. Paramount pulled all regional advertising for the film.
His last two films, both released in 1996, were for Showtime (Undertow) and James G. Robinson’s last-chance production factory Morgan Creek (Bad Moon) where, according to one long-time Hollywood observer, “You can park across the street and watch the souls of the damned tramp in and out of there all day long.” Red went from being represented by industry powerhouses UTA and ICM to the Chasin Agency, a three-person talent outfit that handles fading icons like Bo Derek and Adam West. By 2000, he was writing production notes for American World Pictures, a straight-to-video company with titles such as Blowback with Mario Van Peebles and Hitman’s Run with Eric Roberts. His deal at Artisan, flush with cash from their success with The Blair Witch Project, had a lot riding on it.
In his trial testimony, Red claimed of Teacher’s Pet, “We’d attached a cast member, Pamela Anderson, to play the lead role. We had secured domestic — a verbal, not a written — domestic distribution guarantee from Artisan Entertainment. We still had to find foreign distribution before we could complete the financing.” But sources familiar with the project describe it as cast-driven: The company would only consider providing domestic distribution on the strength of Pamela Anderson or a star of equal caliber. And, according to Lewis Chesler of Chesler/Perlmutter Productions, an executive producer on Undertow and someone who Red tapped in approaching the actress, “There are always discussions, but until it’s documented and memorialized on paper, it’s all just speculative. To the best of my recollection, and I wasn’t ever really attached, there was never verification of her participation, only just the suggestion.”
In July 2000, Red’s ex-wife Taia contacted Eric Baum and Brandon Baum, apparently distraught and offering to testify against her ex-husband. According to her deposition in the ensuing civil trial, the hospital had contacted her the day of the accident and told her Red had asked to see her. Although he was still in intensive care and on a ventilator, Taia recalls that Red specifically remembered hitting the first car, and told her she might need to testify he had a fainting condition, although this was the first she had ever heard of it.
She told police that Red said, “You won’t believe how easy it is to cut your throat. I would just like to get out and go finish the job.” To police — and later under oath — she reported multiple instances in their years together of Red holding a gun to his head, saying, “I can’t handle it anymore,” and threatening suicide over the phone. Her police statement read, “If you have ever seen his movies, you can realize what his mental well-being is.” Taia also claimed that the only time Red canceled scheduled visitations with his daughter was because of financial issues, or when he was depressed, or both. They had been divorced for six years, and May 31, the day of the accident, would have been their 13th wedding anniversary. Red countered that Taia only contacted the Baums as a legal ploy after he took her to court to enforce his court-ordered visitation rights, in which he ultimately prevailed. Taia Red refused to be interviewed for this story; in a prepared statement, she said she has moved on with her life and has no comment.
And then there was the physical evidence. Witnesses told police that they heard tires squealing and the engine revving as Red’s Jeep accelerated, 30 seconds after the initial impact with the Honda. Even more inexplicable were the skid marks inside the bar — thick black stripes from both front tires, one of the stripes a dozen feet long — which were mentioned in the police report, by witnesses, and by Q’s staff, who debated how to remove them afterward. Jack and Eleanor Caltabiano, whose son Jeffrey was drinking with Noah Baum at Q’s, and who was thrown 80 feet by the impact, breaking his leg, flew to Los Angeles to visit the accident scene the next morning. “That was the first thing we noticed when we walked in the bar, were these skid marks along the floor,” says Eleanor Caltabiano. “And all of us went over and looked at them and commented on them, that he must have put his brakes on when he figured out what was happening. Because there was no other way we could figure out they could have got there.”
“They were approximately 10 to 15 feet inside the bar,” adds her husband. “They started, if I recall, probably five feet inside, after he crashed through the two doors. In my opinion, I think that was the smoking gun.”
The Hills ?Have Eyes
In August 2001, a bombshell went off in the civil trial. After asserting his Fifth Amendment rights to avoid having to sit for a deposition, Red announced through his attorney, John Doherty of Doherty & Catlow (paid for by Mercury Insurance), that he had moved to Austin, Texas, to find employment. Then on October 23, 2001, for the second time in his life, he filed Chapter 7 bankruptcy. “Texas and Florida are known as debtors’ havens,” says UCLA Law School professor Lynn M. LoPucki. Red moved to Texas almost six years to the day after his previous bankruptcy filing, on August 18, 1995 — the statutory requirement. And the time he said he lived there — from the end of August to just before Christmas — was, coincidentally, the amount of time required to establish state residency (the better part of six months or, technically, 91 days).
According to the bankruptcy form, Mercury Insurance paid his filing fee, as they had paid all of his legal fees, since state law requires insurance companies to exercise a “duty to defend” and pay all legal bills even when they exceed a policy’s liability limits. The bankruptcy filing effectively stopped the civil suit in its tracks. In December 2001, Red received a round-trip plane ticket to L.A. to record the voice-over commentary, with director Robert Harmon, for the European special-edition DVD of The Hitcher, and to be interviewed for the accompanying documentary. He flew one-way to Los Angeles and never went back.
“That’s what you call forum shopping,” says Lloreda, Roos’ attorney, “shopping to find a venue not because of fact, but rather chessmanship — taking it far away, believing these people were not going to follow them to Texas. They figured we’d drop by the wayside.”
Yet according to attorney Lloreda, even this brief expatriation is in question. Red took with him only his clothes and a computer, leaving his possessions in storage in Van Nuys. While in Texas, he failed to secure what Lloreda has labeled “vestiges of residency” — a driver’s license, bank account, bus pass, Texas ID, or job, save for working for room and board at the hostel where he claims to have stayed part-time. The hostel refuses to confirm that claim for reasons of confidentiality. Members of Austin’s finite film community do not recall meeting Red there, including filmmakers Richard Linklater, Robert Rodriguez and Mike Judge, the Austin Film Society, the South by Southwest Film Festival, the Texas Film Commission or Internet maven Harry Knowles, according to their representatives. Red did speak at the Austin Film Festival in October, and returned in 2002, and panel organizer Alan Odom clearly remembers him saying in 2001 “that he was probably going to move to Austin.” The moderator at the “Thrills and Chills” panel on October 13, 10 days before Red's bankruptcy filing, introduced him by announcing, “Eric is thinking of moving back to Austin. Let’s all try and convince him to do that.” Red claims that he was under consideration for a faculty job in the University of Texas film department, citing administrator Susan Dirks as his contact, but Dirks doesn’t remember speaking — or certainly negotiating — with him. “I don’t want to call the man a liar,” she says. “It’s possible he talked to me — but I probably get a call like that a month.”
But it turns out there’s a wrinkle in bankruptcy law that says that debts incurred by “willful and malicious injury” to a person or property of another are non-dischargeable under the bankruptcy statute. That is, if Red were conscious during the collision, and could be expected to know that his actions would cause harm, then bankruptcy wouldn’t absolve him of any monetary judgments in a wrongful-death suit. A trial date was set for November 12, 2002 in Austin. Depositions were taken from a dozen people in Los Angeles, and Red was deposed that July in Austin — with both plaintiffs’ attorneys, Nilda Roos and Red himself flying to Austin’s fabled Hill Country for the day. Leaving the deposition, Red attempted to apologize to Nilda Roos, a gesture she refused to acknowledge. “I just continued walking,” she says, “for the simple reason that I observed him in the deposition. In my opinion, he was extremely arrogant, he was bothered by the lawyers’ questions, and he answered in a very arrogant and impertinent way. So I didn’t believe it when he called after me to say sorry. It was just . . .” — she struggles to find the word in English — “. . . diplomacy.”
In depositions and during the trial in November 2002, Baum and Lloreda attacked Red’s medical defense. Although Red told doctors at UCLA immediately after the collision that he had suffered five or six episodes of syncope —the medical term for unexplained fainting — by the time of his police interview in July, that number had shrunk to four or five; in his deposition two years later, it was three, all during bowel movements; and by the time of the trial, three months after that, it was twice during bowel movements and once from a random case of gout. No one (save for an ex-girlfriend who failed to testify in court) has confirmed any of these, nor even remembers Red discussing them at the time. Red places the third episode some time between 1994 and 2000. (In fact, before the accident, the only indication that Red had a history of fainting spells is that when he filled out the form to renew his driver’s license in 1999, he failed to answer the question, “Have you ever had any health or vision problems that could affect your ability to drive?” and later took the Fifth when questioned by police after the accident. According to the case summary by the District Attorney’s Office, it is this omission, specifically, which prevented prosecutors from charging Red with perjury or fraudulently obtaining a license.)
The doctor who Red claimed had been treating him for his condition, Dr. Rubin, had in fact only seen him once, in 1994. Dr. Rubin was unable to produce his notes from that appointment, even though it fell within the seven-year period that the State of California mandates medical notes be kept. Rubin claims the notes were lost in a move, and his “affidavit” was merely a letter that he had written for the price of a standard $225 doctor’s visit. Under rigorous cross-examination, the “recurrent episodes of syncope and transient losses of consciousness” were not substantiated. Rubin’s statement that “extensive cardiovascular evaluations at UCLA and elsewhere have shown no neurological or cardiovascular deficits” referred to Red’s hospital tests after the collision, and would have better read “UCLA and UCLA,” since no other facility was employed.
Rubin wrote several follow-up letters to police clarifying his position. In his deposition, he systematically recanted each of these claims, denying that Red was ever under his care, or that he told police he had ever treated Red for syncope. “I’m a gastroenterologist,” Rubin said. “I don’t treat anyone for syncope.” Rubin was investigated by the Medical Quality Board of California for nine complaints alleging “repeated negligent acts, incompetence, dishonesty and false medical records, insurance fraud, failure to repay insurance proceeds, failure to release medical records, inadequate and inaccurate records and general unprofessional conduct.” In June 2005, Rubin was sentenced to five years’ probation and ordered to complete medical record-keeping and ethics courses and to engage a billing monitor to oversee all financial transactions. In his defense, Rubin says of the letter, “I was trying to help him avoid criminal prosecution. In retrospect, I probably should have let Eric Red twist in the wind.” About the number of demonstrable untruths in it, he says, “Well, that’s what doctors do, they write down what their patients tell them. I’m not a prosecutor. Someone tells me they fainted, I have to believe.” Red, in his most recent statement, says he still suffers from syncope and that the condition is hard to diagnose, yet common. “Other people who suffer from syncope include the current president of the United States,” he says.
In February 2003, Judge Frank Monroe of the U.S. Bankruptcy Court, Western District of Texas, Austin Division, released his findings. In an 18-page memorandum opinion, Monroe ruled the “willful and malicious injury” test fulfilled if [Red] “intentionally” drove his Jeep into a billiard parlor/bar in the early evening at a high rate of speed. “It is hard for one to imagine a more evil action if that was what truly occurred,” Monroe says. As for the medical evidence, he writes, “The statement by Doctor Rubin that Mr. Red had been under his medical care since 1994 is, if not an outright lie, an incredible overstatement of the facts.” Monroe calls Rubin’s letter to police “more evidence of a fabrication of syncope” than actual proof, and further notes, “The question that the court has in mind is whether the three episodes [Red] testified to in this Court were a fabrication as well.” Stopping short of ruling that Red had moved to Austin to intentionally elude a civil judgment, Monroe said the court viewed his move with “great suspicion,” and followed a brief chronology of Red’s bankruptcy filing with the admonition, “Coincidence? Doubtful.” Venturing beyond findings of fact, the opinion addressed Red’s demeanor and credibility, stating, “Mr. Red struck the court as defensive, somewhat combative, and reticent in his testimony on cross-examination,” and calling him “unduly ‘put upon’?” for having to answer questions. The judge found that “Mr. Red’s story is simply not consistent with the facts of what we know happened.” He also finds that Red was “conscious and alert” and “that all of this occurred because of a fit of uncontrollable rage on the part of Mr. Red, the reason for the rage being largely unknown.” Red, in his statement, calls the ruling a “travesty of justice. It was completely unfair that the judge said I showed no remorse. Had anyone asked me how I felt, I would have said how terrible I feel about the deaths, how I think about it every day and how I wish I had never gotten in a car that day in 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.
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.
And as noted, on the strength of previous horror adaptations of The Texas Chainsaw Massacre and The Amityville Horror, Michael Bay’s Platinum Dunes company, in conjunction with Rogue, the horror division of Universal’s independent arm Focus Features, is currently developing a remake of The Hitcher for a proposed 2007 release. Red sold at least the sequel rights, if not the remake rights (the two are usually but not always bundled together), to Hitcher producer Charles R. Meeker some time after the 2000 accident, and Meeker produced the straight-to-video Hitcher II: I’ve Been Waiting in 2003, written by one Molly Meeker. The elder Meeker is listed as a producer on the Hitcher remake, and the script appears to be based on Red’s original screenplay, although it is unclear whether or how much he will prosper financially. Both Platinum Dunes and Focus Features refused to comment.
Red also declined to comment on his current projects. But one script appears striking in the context of his car wreck and ensuing civil trial. Fenderbent, written by Eric Red and Meredith Casey, in a draft dated May 1, 2003, is the story of a group of high school students on their way to a concert who run out of gas in a small town in central Texas. There, they encounter not just the anticipated killer trucks and car-related mayhem of Red’s signature oeuvre — “the SOUND of the DEAFENING REVVING ROARS of the ENGINES and the SMASHING of METAL against FLESH and BONE,” as the screenplay imperatively puts it — but an actual society of miscreants who target and run down pedestrians for fun, as part of an elaborate sport. Driving souped-up GTOs, dragsters and funny cars, featuring Ed “Big Daddy” Roth-style cartoon murals and tricked out with chainsaws, harpoons and razor-sharp rotor blades, these chicken-fried road warriors refer to themselves as the Fenderbents and collect points for every unsuspecting victim they can tally.
This is reminiscent of the plot of Death Race 2000, Paul Bartel’s mid-’70s drive-in opus starring David Carradine and Sylvester Stallone, crossed with the inbred remoteness of The Texas Chainsaw Massacre. It also carries with it a kind of gallows-humor defiance. Despite its absence from Red’s list of active properties in the Creative Directory, Scott Penney, his agent, continued to shop the project through at least 2004. What exactly are we to make of this?
But even that is not the most bizarre aspect of this increasingly bizarre story. Because according to Red’s testimony at trial, his own father, Cornelius Gerard Durdaller, known as Neil, was killed by a drunken driver at age 46 in New Jersey, when Red was 16. However, it was only after his own auto-fatality experience that his mother told him the man who killed his father claimed to have passed out at the wheel, and the man was convicted and served time in prison. According to a relative, the other vehicle struck his father's car, which was just then stopped at a traffic light, head on.
“It was a tragic accident,” Red said in an e-mail response to 20 questions he agreed to answer 15 months ago — none of them concerning the circumstances of the accident or its immediate aftermath. “There’s nothing I can do to undo it. Although every day I wish I could. I know what it is like to lose a family member in a car accident. In the late ’70s my father died in New Jersey as the result of a driver who lost control of his vehicle, and I sympathize with the Baums’ and Roos’ loss. You want someone to blame, you need there to be a reason, but I’ve had to accept that sometimes tragedies happen where there is no reason. .?.?. My heart goes out to these families and I hope they find a way to move on, as we all must do.” (More recently, Red has threatened to sue the L.A. Weekly if it prints this story about him, and in court filings in December claimed plaintiffs Baum and Roos “paid a freelance reporter to write a biased article that deliberately presented a very negative portrait of me.” During the summer, private investigators contacted me, my parents, ex-wife and former neighbors about this matter.)
As Barbara Casey succinctly puts it: “Eric lives with his pain every day.”
Brandon Baum, for one, takes no comfort in Red’s statement. “It’s amazing what the mind can do; it’s very protective of the individual. I’m sure Red considers himself a victim. You can’t change people’s hearts and minds; it doesn’t happen. But if he becomes a big success, he can donate some of the money so that somebody can get an education and maybe do a little bit of what Noah wanted to do."
And who’s to say he won’t? There have been celebrity hit-and-runs, even involving egregious death or bodily injury. In 2001, actress Rebecca Gayheart pleaded guilty to misdemeanor vehicular manslaughter after killing a 9-year-old boy who chased a soccer ball into the street. She paid a $2,800 fine, was sentenced to three years’ probation and 750 hours of community service and had her license suspended for a year. (In addition, she paid all hospital and funeral expenses for the little boy and settled a wrongful-death suit with the family for an undisclosed sum.) Fox executive vice president Dylan Sellers served three months of a one-year sentence for gross vehicular manslaughter after a 1996 accident that killed fellow Fox employee Lewis Cherot. Halle Berry pleaded no contest to hit-and-run charges in 2000 and performed 200 hours of community service, as did Andy Dick, who entered a two-year drug treatment program. Even first lady Laura Bush killed a classmate after running a stop sign at age 17. Each of these paid for their mistake, made restitution where necessary and accepted their fate.
It may be that Eric Red is only guilty of the one thing that is most rewarded in Hollywood: survival. Survival against impossible odds, in the face of unspeakable hardship, where common sense tells you you’re finished and conscience becomes a luxury.
Maybe he just benefitted from the police department's institutional deference to “the industry” and pursued an ambitious legal strategy.
Maybe after 15 years in Hollywood, survival is the only skill you really have.
Until it’s not.