Tracy Morgan Crash: Driver Plans Appeal After Legal Setback

Kevin Roper argues that “30 Rock” star’s civil action against Walmart could affect his criminal case

Last Updated: February 16, 2015 @ 3:20 PM

Kevin Roper, the Walmart truck driver who was involved in a crash that severely injured actor-comedian Tracy Morgan and left a fellow comic dead, plans to appeal after a federal judge denied his attempt to delay Morgan’s lawsuit against Walmart, according to legal documents obtained by TheWrap.

Roper, who is not named in the civil suit against Walmart, had sought a delay on the grounds that the former “30 Rock” star’s suit would negatively affect his right to a fair trial in a separate criminal case against him. Earlier this month, a federal judge wrote that a delay would unfairly affect those named in Morgan’s lawsuit, noting that Roper’s concerns “are more appropriately addressed by the court overseeing his criminal action.”

In a request for oral argument regarding the federal judge’s decision, Roper’s lawyers again contend that depositions and discovery in Morgan’s suit “would impose a serious burden on Roper’s Fifth Amendment privilege” and “would unfairly infringe on Roper’s right to an impartial jury.”

Conducting discovery in the Morgan lawsuit, Roper’s attorney argues, “will produce ‘facts’ which Roper cannot mitigate (without waiving his Fifth Amendment privilege) and which contradict the defense Roper elects to mount in his criminal trial.”

Like Roper’s earlier bid for intervention, the request for oral argument, filed Tuesday in U.S. district court in New Jersey, mentions the popular awareness that the Morgan lawsuit has attracted.

“[G]iven the intense media attention in this case, there is a cognizable threat to Robert that ongoing discovery and investigation in this civil matter will result in facts and information that are injurious to Robert’s reputation and harmful to Roper’s ability to achieve a fair trial and impartial jury.”

“We are committed to the proposition as outlined in our Brief, that despite the fact that Mr. Roper was not named as a Party in the Civil Action, his interests and constitutional rights have been put in play. That is not speculation, but rather a fact. To find otherwise would be to declare ‘a free fire zone’ on an individual not named in a civil action but facing criminal charges,” Roper’s attorney, David Jay Glassman, told TheWrap in a statement. “I submit our Founders placed a far greater value on an individual’s right to a fair trail and preserving an accused rights until such time as he is inside a criminal courtroom facing his accuser.

“Trial by proxy in the Court of ‘public opinion’ should never be permitted to cripple an individual’s exercise of their constitutional rights whether it be in a civil or criminal context,” Glassman continued. “It remains our intention to prosecute this issue to the fullest extent, and in the event it becomes necessary, to the highest Court of review.

The crash, which occurred on the New jersey Turnpike in June, left Morgan seriously injured and killed comedian James McNair.

Morgan’s lawsuit, filed in July, contends that retail giant Walmart “knew or should have known” that Roper was awake “for more than 24 consecutive hours” and that the company had a “custom and practice of recklessly and intentionally allowing its drivers to drive for prolonged and unreasonable periods of time.”

Pamela Chelin contributed to this report.