The sudden-acceleration litigation against Toyota shifts to Oklahoma on Monday, as plaintiffs attorneys for the first time blame vehicle electronics for a crash that injured the driver and killed a front-seat passenger.
The first major trial over sudden acceleration focused on Toyota's failure to install a brake override safety system, not the electronics. A Los Angeles jury began deliberations on October 2 following two months of testimony.
The plaintiff in the Oklahoma case is Jean Bookout, who suffered internal bleeding and a broken ankle when her 2005 Camry crashed six years ago. Her friend, Barbara Schwarz, who was in the front seat, was killed.
Toyota has so far managed to settle litigation over sudden-acceleration defects. A $1.6 billion settlement, approved in July, resolved claims by consumers that their vehicles lost value. Another $25.5 million settlement resolved claims that shareholders lost money from the recalls. But trials now under way could influence the outcome of hundreds of remaining lawsuits, all of which target Toyota for injuries and deaths associated with accidents.
Bookout filed her lawsuit in 2008, one year before Toyota began recalling nearly 10 million vehicles for defective floor mats and accelerator pedals linked to sudden acceleration. The case is a an outlier: It's not part of a coordinated proceeding, and lawyers have not selected it as a bellwether trial, defined as one whose outcome could guide the resolution of other cases pending against Toyota across the nation.
"Ms. Bookout doesn't have much memory…but she remembers the onset of the incident and remembers pumping her brakes, and the car kept going when she was slowing to get off the exit ramp," said Bookout's lawyer, Graham Esdale, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.
But Toyota has brought in a significant legal team including Bowman and Brooke, its lead national counsel in the sudden-acceleration cases. The team also includes J. Randolph Bibb Jr. of Lewis, King, Krieg & Waldrop in Nashville, Tenn., and James Jennings and Derrick Teague, senior shareholders of Jennings Cook & Teague in Oklahoma City.
Toyota spokeswoman Carly Schaffner issued a formal statement: "Multiple independent evaluations have confirmed the safety of Toyota's electronic throttle control systems, which are equipped with numerous, robust failsafe systems."
Toyota faces a formidable foe. In addition to Esdale, Beasley Allen's trial team includes senior member Jere Beasley and products liability shareholders Benjamin Baker and J. Cole Portis. The firm also is working with Larry Tawwater and Darren Tawwater of The Tawwater Law Firm in Oklahoma City.
The trial is expected to last less than three weeks. "It'll be fairly extensive," Esdale said. "Right now, our trial team is bigger than anyone we've sent to a court."
Bookout and Schwarz's estate intend to claim that Toyota was negligent and that the design of its 2005 Camry was defective, Esdale said. They also plan to ask jurors for punitive damages.
Some 20 experts are on tap, many of whom appeared during the first bellwether case over sudden acceleration to testify about braking systems. Others plan to testify about alleged defects in the vehicle's electronics software. Toyota has moved to exclude a report by one such plaintiffs expert, Michael Barr, whom plaintiffs lawyers indicated has identified a potential software glitch that could cause sudden acceleration. "Mr. Barr testified in his deposition that the Toyota software is defective, which results in unintended acceleration," Larry Tawwater wrote.
FIGHT OVER EXPERT
Toyota's motion and Barr's report were filed under seal, but Toyota has made a similar request to exclude Barr's findings in a case scheduled to go to trial on November 5 in the multidistrict litigation over sudden-acceleration defects against Toyota pending before U.S. District Judge James Selna in Santa Ana, Calif.
Beasley Allen has asked that additional members of its team have access to Toyota's proprietary software, which is housed in a secured facility in Maryland. Only two lawyers at the firm — Esdale and Baker — now have access to the source-code database.
"We filed a motion to allow lawyers trying the case access to it," Esdale said. "Clearly, they'll see and hear about it during the trial." Toyota's attorneys have opposed that request; access to its source code is governed by a stipulated protective order in the multidistrict litigation.
Oklahoma County District Court Judge Patricia Parrish issued a letter order on September 24 denying Toyota's motion as to Barr, but hasn't ruled on the source-code request. On October 1, she denied the plaintiffs' request to put James Lentz, head of Toyota's North American region and Toyota's highest ranking U.S. executive, on the stand. Lentz was forced to testify in person before jurors during the first trial.
Parrish also rejected a motion by Toyota to prevent plaintiffs lawyers from disclosing to the news media all "extrajudicial statements," especially highly sensitive proprietary information, that could prejudice a prospective jury pool.
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Source: Law Journal (Brondstad, 10/07)
Tuesday, October 8, 2013
Wednesday, October 2, 2013
Teens with passengers at higher risk for fatal crashes, study finds
The report, released today, compared crash data between 2002 and 2011. It found that even as fatalities decreased, the percentage of novice drivers carrying passengers in fatal accidents jumped, indicating the safest practice for new drivers might be to go it alone — and to refrain from fumbling with their phones.
“Total teen fatal crashes per year declined, but the relative risk for young drivers carrying teen passengers actually increased substantially – at this same time, text messaging exploded in American society,” said Russell Henk, the primary author of the study. “We can’t scientifically state that there’s a direct link between those two things yet, but it seems reasonable to suspect a connection.”
What officials can conclusively say is in driving with passengers increases the relative risk for young drivers. Nationwide, drivers age 15-17, with one or more passengers age 13 to 17, are eight times more likely than adults with passengers to have a fatal accident. During the decade studied, the number of fatal teen accidents dropped 60 percent, but more of them happened when other teens were in the car.
“The decline in the number of novice drivers in fatal crashes certainly indicates substantial improvement,” according to the report. “At the same time, however, the increase in the proportion of fatal crashes involving novice drivers that also include multiple teen passengers relative to those crashes with somewhat older and more experienced – but still young – drivers, should at the very least raise cautionary flags with respect to the persistence of fatal crash issues among novice teen drivers that merit continued attention.”
The increased happened as many states, including Texas, enacted strict graduated licencing programs that limit when and with whom teen drivers may hit the road. Texas forbids drivers under 18 from driving with more than one passenger under age 21 during the first year of licensed driving, though exceptions for family members can apply.
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source: Chron (AP, 9/26)
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