WHITE PLAINS - A man who died in the wrong-way crash that killed eight people on a New York highway survived the impact and suffered at least briefly from pain and from the knowledge he was about to die, a lawyer claims.
Brian Sichol, who represents the family of father-and-son victims Michael and Guy Bastardi, made the assertion as he prepared a lawsuit against the estate of Diane Schuler, the Long Island woman who caused the crash.
The lawsuit, expected within weeks, will be the first court action in the mystifying, horrific crash that occurred when an apparently intoxicated Schuler drove a minivan packed with kids against high-speed highway traffic for 1.7 miles on July 26.
The resulting collision north of New York City killed Schuler, her 2-year-old daughter, three young nieces, the Bastardis and their friend Daniel Longo, 74. Schuler’s 5-year-old son, Bryan, survived.
Sichol said that to sue for pain and suffering, “You have to have some proof that someone survived, even briefly. Then you have suffering, horror and the anticipation of death.”
He said Tuesday a witness could testify that at least one of the Bastardis “was not deceased” at some point after the wreck.
Michael Bastardi Jr., whose 81-year-old father and 49-year-old brother were killed, said the idea that one or both of them survived left him “absolutely heartbroken.”
“It’s extremely hard,” he said. “I try not to visualize it.”
No criminal charges were filed because Diane Schuler was responsible for the crash “and the charges died with her,” a prosecutor said.
Some members of the Bastardi family suggested that Schuler’s husband, Daniel, might also be to blame.
But Sichol said the lawsuit would name only Diane Schuler’s estate and her brother, Warren Hance, the owner of the minivan she was driving.
Hance’s attorney did not immediately return phone calls seeking comment. David Smith, a lawyer for Daniel Schuler, said he had seen no evidence to support that the Bastardis survived.
Sichol said a civil suit, even if it goes to trial, is “not likely to answer everyone’s questions, the real question of why, what set her off that day.”
The mystery of how Schuler could race against highway traffic with a cargo of frightened kids baffled the nation. Her husband’s continuing refusal to accept that she was drunk led to TV appearances with Oprah Winfrey, Larry King and others.
Schuler acknowledged that his wife drank at least socially and her sister-in-law told police she smoked marijuana regularly. A broken 1.75-liter Absolut vodka bottle was found in the wreck.
But Schuler, lawyer Dominic Barbara, and investigator Tom Ruskin have repeatedly suggested that Diane Schuler’s erratic behavior was caused by something other than intoxication, despite an autopsy finding that the alcohol content in her blood was 0.19 percent, about 2 1/2 times the legal limit.
They suggested a blood clot, a stroke and her use of Anbesol. Barbara said the sugar in her blood could have been boiled into alcohol in the car wreck.
The Schuler team also seized on witness statements that indicated Schuler was fine when she and her husband left an upstate campground that morning in separate vehicles. Ruskin contends Schuler’s demand for an item off the lunch menu for her son during breakfast at McDonald’s proved she hadn’t been drinking.
Michael Bastardi Jr. said all the “excuses” from the Daniel Schuler team “keeps the agony going for our family. Honestly, I cannot wait to get them in civil court. We’re going to depose them all and get them under oath.”
Barbara said in September that Diane Schuler’s body would be exhumed, but Ruskin said last week that may not be necessary. First they will try to confirm that the remains tested by the medical examiner were Schuler’s, he said.
Sichol said none of that is relevant to the lawsuit.
“I think an intoxicated person can order at McDonald’s, but it really doesn’t matter,” Sichol said. It doesn’t help him. That was three or four hours before the crash. She had more than ample time to consume the alcohol that we know she did and to smoke the marijuana that we know she did. We know she was driving the wrong way on the Taconic Parkway for two miles that afternoon and we know she had a point-one-nine.”
Also known — from 911 calls and witness statements taken by police — that other drivers saw a woman driving aggressively and ignoring honked warnings that she was going the wrong way. Many told of having to steer out of her way as she barreled south in the northbound passing lane.
“The driver didn’t appear to have a clue they were going the wrong way,” one witness said.
Lawyers for Longo’s family did not immediately return phone calls, but their investigator, Michael Archer, said no lawsuit was imminent.
Meanwhile, 5-year-old Bryan Schuler, the lone survivor from the minivan, has recovered enough from his head injury and broken bones to return to school, Ruskin said. “He knows his mother is dead and his father is trying to get him through this.”