A former tractor-trailer driver from South Portland who is charged with two counts of manslaughter in a January 2021 turnpike crash had Netflix playing in the cab of his truck at the time it struck the car of a retired couple from Falmouth, court records show.

Elizabeth “Betsy” and Geoff Gattis Press Herald photos

Prosecutors likely will allege that David E. Herring, 40, was watching a Netflix show about teenage magicians on his cellphone screen when traffic slowed ahead of him in the northbound lanes of the Maine Turnpike near the Kittery-York town line and he crashed into the car ahead of him.

Herring estimated his truck was going about 65 miles per hour when it struck the car ahead of him, killing Geoff and Elizabeth “Betsy” Gattis, both 68, who were driving home from Massachusetts after visiting with their son and grandson.

Geoff Gattis retired in 2018 as executive vice president of Bath Savings Institution, where he had worked since 1992. Betsy Gattis was a longtime copy editor and page designer at the Portland Press Herald and Maine Sunday Telegram. She also retired in 2018, after 37 years with the newspaper.

Herring was indicted in July and pleaded not guilty at his first court date in September. A judge has ordered him not to drive while the case remains open. To win a conviction, prosecutors must prove that Herring caused the deaths recklessly or with criminal negligence.

Prosecutors offered Herring a plea agreement that would have had him spend 10 years of a 15-year sentence in prison, but Herring rejected the offer and the case appears headed to trial, said his attorney, Rob Andrews.

In a phone interview, Andrews admitted his client was distracted in the seconds leading up to the crash, but said Netflix had nothing to do with why Herring wasn’t paying attention. Herring used Netflix as a substitute for radio, and preferred to listen to the streaming service to avoid flipping through radio stations as he drove from state to state.

Just before the crash, Andrews said, Herring was distracted by another vehicle directly ahead of him that had suddenly slowed and pulled off the highway. Herring’s eyes followed the vehicle and when he turned back to the road ahead of him, it was already too late to stop in time, Andrews said. He said there is no evidence that his client was watching his phone.

“(Prosecutors) want a jury or a judge to do what they’ve done, which is ignore what he said happened in favor of something that might conceivably be a crime,” Andrews said. “Which is watching Netflix. Except he’s very clear that he was not watching Netflix.”

Subsequent search warrants for Herring’s phone corroborated that streaming data from the Netflix app was being delivered to his phone, Andrews said. But, he said, that isn’t enough.

“Not every accident that occurs where someone dies or is really hurt is a crime,” Andrews said. “There is a difference between civil negligence and criminal negligence.”

Andrews said he plans to file a motion to dismiss the case in the coming weeks based in part on a 2017 ruling by the state Supreme Judicial Court. In that ruling, the justices explain in a footnote that the legal definition of distracted driving, according to the statute, excludes any activity that is essential to the safe operation of a vehicle.

“A driver could be distracted in the literal sense due to a failure to pay attention to the road, but not distracted as defined by the statute if the distracting activity was necessary to the operation of the vehicle,” the court wrote in the case.

Andrews said the principle applies directly to Herring.

“In this situation, what he told the state trooper was that the car that was pulling off distracted him,” Andrews said. “When he returned (his attention) back to what was in front of him, it was too late for him to stop the accident. That’s what he told Trooper (Ricci) Cote, that’s what’s in the affidavit.”

The crash unfolded in the right-hand lane, next to an off-ramp for a rest stop near mile 3.4, according to a standard crash report filed after the wreck. Four vehicles were traveling north in a line: A tractor-trailer from Canada, the Gattis couple in a silver sedan, an unknown driver of a passenger car behind them, and Herring’s Freightliner in the back.

As the first truck driver and the Gattises slowed down and were “barely moving forward,” the unknown vehicle behind the Gattises nearly came to a stop and then moved to the right, the crash report said.

“The unknown vehicle in front of (Herring) slowed abruptly and considerably and then went to the right to take the departing ramp to the nearby rest area,” a trooper wrote in the report’s brief narrative. “(Herring) took his eyes off of the roadway in front of him and looked into his side mirror to see where that unknown vehicle was and did not realize that (the tractor-trailer truck and the passenger car) just ahead were barely moving.”

Herring admitted to troopers that he had Netflix streaming on his phone and that the audio was connected to his truck’s speakers, but he said that he kept the device facing away from him and in a holder by his knee so that he could not see it, according to an affidavit by Trooper Ricci Cote, who was granted three search warrants related to Herring’s phone data and use history that day.

“Herring informed me the phone had been ‘playing’ and that it plays as he drives but it was ‘flipped around’ because ‘I don’t want to see it,’ ”  Cote wrote in the search warrant affidavit.

At the time of the crash, Herring was driving for K and E Trucking of West Newfield. A woman who identified herself as the safety officer for the company declined to answer questions about Herring’s employment history with the company and hung up without providing any information.

Herring was cited once before, in 2019, for using a cellphone while driving. Before that, he had been cited multiple times for speeding in several states.

Herring has been involved in several crashes over the years. In 2004, he rear-ended another driver in Arundel. In 2009, he lost control at an intersection. He said the vehicle stalled and he lost control when he restarted it and stepped on the gas, crashing into a brick wall. In 2014, Herring’s brakes apparently failed and he rear-ended another vehicle stopped in traffic.

In 2015, Herring struck another vehicle from behind because he was distracted talking to a passenger in his car as he drove in Biddeford. In another incident in 2015, he struck the bumper of another car while parallel parking. That same year, he skidded through a stop sign in icy conditions and struck another vehicle.

Since the fatal crash, the Gattis family has settled out of court with K and E without a lawsuit, said Robert Kelley, an attorney for the Gattis family and a lifelong friend of Geoff Gattis.

Kelley declined to give the amount of the settlement, but suggested it was limited by state law, which caps  awards in wrongful death cases at $1 million.

The settlement is not relief, Kelley said.

“It’s only money,” he said. “He was my best friend. My wife and I had planned to do a lot of traveling with them over the next 10, 20 years. Betsy had just retired and Geoff had just retired not too long before that.”