NASCAR has settled the lawsuit of a spectator who was injured in a February 2013 Xfinity Series crash at Daytona International Speedway. In doing so, NASCAR was able to avoid having its drivers deposed and its crash and fencing reports made public.
Allen Davis sued NASCAR and Daytona's parent company, International Speedway Corp., in November 2015. The Florida man was sitting in the upper deck and, according to the lawsuit, "was struck in the head by a heavy piece of debris and suffered a catastrophic, traumatic brain injury."
Attorneys for NASCAR and the track filed notice Monday with the court that the parties had settled, and Davis attorney Dan Iracki confirmed that the sides have agreed to a settlement, with terms remaining confidential. He said Davis suffered permanent brain damage and will need medical care for the remainder of his life.
"He is actively engaged with a rehab hospital and he has a full-time health-care advocate, and he's trying to make the best of his situation," Iracki said Monday night. "This recovery is going to change [Davis'] life -- it will help in making sure he is taken care of the rest of his life."
The settlement notice was filed during a week when Iracki had previously planned to take depositions of six drivers -- Kyle Busch, Kyle Larson, Denny Hamlin, Dale Earnhardt Jr., Ryan Newman and Austin Dillon. All but Newman competed in that February 2013 race, and all have been advocates for safety or have served on NASCAR's drivers' council. A judge denied NASCAR's request to postpone the depositions but left open the option for each driver to challenge the necessity of his deposition.
That challenge wasn't necessary as the sides reached the settlement Friday.
"Certainly, that could have been one aspect as to why it was resolved, as well as others," Iracki said.
It was Larson's car that flew into the catch fence in the crash, and his car hit what is commonly referred to as the crossover gate. This gate in the fencing allows fans and officials to go from the racing surface to the grandstands prior to the start of the race. The gate buckled and appeared to shear off the front of Larson's car, and a wheel (with suspension pieces still attached) flew into the stands along with other pieces of the car and fencing.
More than 30 fans were injured in the accident. The Davis lawsuit was the final pending suit, although the statute of limitations for filing a claim doesn't run out until Feb. 22.
While there is video of the accident, NASCAR and the track have not made any crash analysis public. NASCAR had its top two safety engineers, Tom Gideon and John Patalak, do a crash reconstruction to analyze what happened.
Daytona and NASCAR refused to give that report up to Iracki, citing it as a legal work document. Bill Braniff, ISC vice president of construction, said in an affidavit filed in December that the NASCAR report and other reports conducted by outside experts were done for "legal advice," meaning that they are protected by attorney-client privilege.
"The report would not have been made but for the contemplation of legal services," Braniff said of the NASCAR crash report. "The engineers performing the analysis did so at the direction of their corporate superior.
"The superior made the request of the engineers as part of the corporation's efforts to obtain legal services. The content of this report directly relates to the legal analysis of the claims arising from the crash."
The design elements of track fencing, the review of track fencing and crossover gate fencing, and modifications to Daytona's fencing after that accident are included in the documents NASCAR and ISC sought to protect as attorney-client materials. Also included are the design of a new Daytona flag stand, grout specifications, and bracket and post specifications; when the fence was ripped apart, it has been unclear how many brackets, bolts and pieces of fencing ended up in the stands.
In the months after the crash, Daytona officials repeatedly declined to talk specifically about any analysis of the crash or what happened. They talked only about the changes made to the fencing, primarily in the crossover gate. Daytona and Talladega have since added tethers to the crossover gates and additional cabling.
In the week after the crash, NASCAR indicated that Gideon and others were working to analyze what happened. Nowhere in the legal arguments in the Davis case does ISC or NASCAR mention fan safety as a reason for the analysis.
"Safety is first and foremost ... for NASCAR and our racetracks," NASCAR executive vice president Steve O'Donnell said the week after the crash. "[Our goal is] getting that right and making sure our fans can enjoy the most safe and entertaining environment possible."
Iracki said lawsuits such as the one Davis filed can help keeps fans safe.
"A suit was necessary to promote safety ... not just to figure out what happened and how it happened and why it happened, but to make sure that every NASCAR fan, woman, child is protected," Iracki said. "Safety was paramount, and it was the catalyst to change."