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Michael R. Duncan v. Ford Motor Company

Michael R. Duncan v. Ford Motor Company
(June 2011)

Plaintiff sued Ford Motor company, alleging the failure of his vehicle’s airbag to deploy in an accident caused his injuries. Keith McDaniel successfully obtained summary judgment in the trial court. On June 10, 2011, the Louisiana First Circuit Court of Appeals affirmed the summary judgment, providing written reasons.

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Weiss V. Mazda

Weiss V. Mazda
(November 2010)

The Louisiana Fifth Circuit Court of Appeal has upheld a grant of summary judgment for Mazda Motor of America, Inc. and Royal Oldsmobile Company, Inc. The opinion can be found at http://www.fifthcircuit.org/Opinions.aspx by searching for Case No. 10-CA-608.

Lance B. Williams and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC obtained the judgment for Mazda and Royal in March of 2010 in the case of Elizabeth L. Weiss and John Weiss v. Mazda Motor Corp, et al., in the 24th Judicial District for the Parish of Jefferson, Case No. 536-515. The plaintiffs filed the product liability action seeking damages against Mazda and Royal for injuries allegedly sustained when the airbag deployed after Elizabeth Weiss struck a parked vehicle in her 1994 Mazda MX3 in Metairie, Louisiana. The plaintiffs claimed that the impact was minor and at an offset angle and thus the airbags should not have deployed. They alleged that the supplemental restraint system was defective in design and for failure to provide adequate warnings. The summary judgment argued that plaintiffs had failed to develop any evidence to prove that the vehicle was defective pursuant to the Louisiana Product Liability Act, and absent expert support all claims should be dismissed. Judge William “Chuck” Credo, III, agreed and granted the defendants’ motion on March 30, 2010. In his written reasons, Judge Credo explained that “Mazda provided adequate warnings regarding the activation and any potential dangers associated with airbag deployment.”

The plaintiffs subsequently appealed the dismissal of their claim to the Louisiana Fifth Circuit Court of Appeal. The Appellate Court determined that Mazda adequately warned the plaintiffs that the air bags could deploy in a frontal or near frontal accident of moderate impact, and that Mr. & Mrs. Weiss failed to produce any evidence that the subject accident resulted in less than a moderate impact. Thus, the plaintiffs were unable to establish proximate cause. In addition, the Fifth Circuit determined that the only proposed alternative warning presented by the plaintiffs’ counsel would be inapplicable to the subject accident. After noting that a plaintiff prosecuting a failure to warn claim cannot prevail based on a mere allegation of inadequacy, the Fifth Circuit affirmed the ruling of the trial court and upheld the summary judgment in favor of Mazda and Royal.

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Duncan v. Ford Motor Company, et al.

Duncan v. Ford Motor Company, et al.
(March 2010)

Keith W. McDaniel prevailed on a Motion for Summary Judgment, which was granted in favor of Ford Motor Company. The two-vehicle accident at issue occurred in 2004; however, plaintiff failed to preserve the subject 1993 Ford Taurus, the most critical piece of evidence in the case. The Court ruled that plaintiff failed to carry his burden in proving that the Ford Taurus was defective under the exclusive theories of liability found in the Louisiana Product Liability Act, LSA R.S. 9:2800.51.

On January 24, 2004, plaintiff, Michael Duncan, was operating his 1993 Ford Taurus in Baton Rouge, Louisiana, when he was involved in a head-on collision. Plaintiff alleged that the air bag of the Ford Taurus failed to deploy during the collision causing him to suffer severe injuries to his legs, head and mouth.

Duncan initiated the lawsuit in the 19th Judicial District Court for the Parish of East Baton Rouge on January 24, 2005. Ford subsequently filed a Motion for Summary Judgment, arguing that Duncan failed to present any evidence that his damages were caused by any alleged defect in the Ford vehicle made the basis of his claims, and that Duncan would be unable to develop such evidence because of his destruction of the subject vehicle. Duncan responded that, although direct evidence of a manufacturing defect did not exist, res ipsa loquitur applied establishing his burden of proof.

After the presentation of the facts, evidence and oral arguments, the Court concluded that Plaintiff failed to take the necessary steps to preserve the 1993 Ford Taurus. Furthermore, the Court concluded that Plaintiff failed to carry his burden of proving that the Ford Taurus was unreasonably dangerous, or that any unreasonably dangerous or defective condition in it caused Plaintiff’s injuries. Accordingly, the Court held that Duncan had not produced sufficient evidence to support his claim of a manufacturing defect, and rejected Plaintiff’s application of the evidentiary doctrine of res ipsa loquitur.

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Martin Edgar, et al. v. Ford Motor Company, et al.

Martin Edgar, et al. v. Ford Motor Company, et al.
(February 2010)

Keith W. McDaniel, Lance B. Williams, and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch obtained a summary judgment for Ford Motor Company in the case of Martin Edgar, et al v. Ford Motor Company, et al., 2010 WL 481030 (S.D. Ind. 2/4/2010). The single vehicle accident at issue occurred on December 24, 2005, on Interstate 49 in central Louisiana. The six plaintiffs were the occupants of a 1993 Ford Explorer involved in a rollover after Martin Edgar lost control of the vehicle after its Firestone tire lost its tread. As a result of the accident, Mr. Edgar suffered a cervical fracture and the remaining occupants sustained various injuries.

All six occupants of the five-passenger Explorer filed suit against Ford and Firestone in the 27th Judicial District Court for the Parish of St. Landry. The case was removed to the United States District Court for the Western District of Louisiana and then transferred to the Bridgestone/Firestone Multi District Litigation pending in the Southern District of Indiana.

After more than two years of litigation, Ford moved for Summary Judgment and argued that the plaintiffs had not carried their burden under the Louisiana Product Liability Act for establishing a defect in the vehicle. The District Judge granted the motion, noting that plaintiffs had not participated appropriately in the discovery process and had not satisfied a previous award of costs and attorney fees in favor of Ford. The plaintiffs attempted to salvage their case by retaining experts and offering reports after the deadline to do so had long passed. The Court granted Ford’s Motion to Strike the tardy expert opinions, and held that plaintiffs had failed to provide any evidence of any defect. Accordingly, Ford’s Motion for Summary Judgment was granted.

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Kimberly Creel v. Ford Motor Company

Kimberly Creel v. Ford Motor Company
(July 2009)

Keith W. McDaniel, Lance B. Williams, and Quincy T. Crochet prevailed on a Motion for Summary Judgment, which was granted in favor of Ford Motor Company. The single-vehicle accident at issue occurred in 1998, but plaintiff did not file a lawsuit until more than two-and-a-half years later. The Court rejected plaintiff’s argument that the doctrine of contra non valentem should apply, and dismissed her claims as prescribed pursuant to Louisiana’s one year liberative prescriptive period. Kimberly Creel v. Bridgestone-Firestone, Inc., et al., 2009 WL 2044264 (S.D. Ind. 7/8/2009).

Plaintiff, Kimberly Creel, was operating her 1991 Ford Explorer on August 27, 1998, in Louisiana while traveling to Texas. She alleged that a tire on the vehicle failed, causing her to lose control of the vehicle and subsequently roll over. On May 10, 2001, nearly three years after the accident, Creel joined a multi-plaintiff action filed in Jefferson County, Mississippi. After nearly six years of litigation, the Mississippi Supreme Court found that Mississippi lacked jurisdiction over Creel’s claims, and her case was dismissed. Creel v. Bridgestone/Firestone North American Tire, LLC, et al., 950 So. 2d 1024 (Miss. 2007).

Creel then initiated a new lawsuit in the 26th Judicial District Court for the Parish of Webster on April 10, 2007, nearly nine years after the accident. The matter was removed to the United States District Court for the Western District of Louisiana, and was then transferred to the Bridgestone/Firestone Multi-District Litigation pending in the Southern District of Indiana. Ford subsequently filed a Motion for Summary Judgment, arguing that Creel’s claims were prescribed, or time-barred, under Louisiana’s one year liberative prescription period. Creel argued in opposition that contra non valentem applied.

However, after reviewing the evidence, the Court concluded that it is “clear that Plaintiff failed to take the necessary steps to determine the cause of the tire failure and the resultant accident and her injuries. . .” The Court noted that the police report provided that the vehicle suffered a “blow out”, that plaintiff testified she informed the investigating officer that the vehicle suffered a blown tire, that plaintiff was told by the police officer and witnesses that the accident was not her fault, that the plaintiff believed the tire failure caused her to lose control of the Explorer, and that she knew who manufactured her vehicle and tire. Accordingly, the Court held that Creel had sufficient information to provide a basis for a lawsuit or further investigation following the accident, and rejected the proposed application of contra non valentem.

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DiMaggio v. Ford Motor Company

DiMaggio v. Ford Motor Company
(February 2009)

McCranie Sistrunk Attorneys obtained a defense verdict for Ford Motor Company in a two week jury trial arising from the death of two people in a rollover accident involving a Ford Explorer. Plaintiffs claimed that Explorers manufactured from 1991 – 2001 were defective in handling and stability characteristics. The jury rendered a unanimous defense verdict for Ford and a judgement of $1.28 million against a co-defendant who caused the accident.

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Dewright Peters v. Nissan Forklift Corporation

Dewright Peters v. Nissan Forklift Corporation
(March 2008)

Keith W. McDaniel, Lance B. Williams and Quincy Crochet, of McCranie Sistrunk Anzelmo Hardy, McDaniel & Welch in New Orleans, Louisiana obtained a unanimous defense verdict in a case tried to a Federal Court jury in New Orleans. The suit arose from a workplace accident in which the plaintiff, Mr. Peters, crushed his foot while operating a walkie/rider pallet jack at a Wal-Mart distribution center. In the accident, Mr. Peters, who was 30 years old, crushed nearly every bone in his foot and has since undergone 6 surgeries. He claimed total and permanent disability from future employment. Plaintiff asked the jury for $1.9 million in damages.

Plaintiff claimed Nissan failed to provide a safe design for the pallet jack, contending that the operator’s platform was too small and there should have been additional measures taken to prevent a rider from falling or becoming dislodged from the platform. Alternatively, plaintiff argued that the subject pallet jack’s end-control design should be replaced with a center-control design, because of the added protection provided to operators. Finally, plaintiff alleged that Nissan failed to provide sufficient warnings of the dangers associated with operating the pallet jack in the rider mode.

Nissan responded by demonstrating the dearth of similar incidents with a design which had been on the market for decades. The pallet jack further conformed to all relevant industry and governmental standards. Regarding plaintiff’s design alternatives, Nissan argued that the utility of the product as an order-picker in distribution centers would be severely handicapped if plaintiff’s design changes were implemented. The center-rider pallet jack, which was offered by Nissan as well as many other manufacturers, had a different utility, and the decision for which design best met a consumer’s needs was ultimately a decision for the customer, especially considering the sophistication of Wal-Mart.

Nissan responded to the warnings claims with evidence of the warnings provided by Nissan as well as the extensive three-day training program utilized by Wal-Mart. Finally, evidence was presented that Mr. Peters was not properly operating the product at the time of the accident, causing him to lose his balance and allowing his foot to come between the pallet jack and a concrete post.

Plaintiff’s experts were Thomas Berry of Wichita, Kansas and Andy McPhate of Baton Rouge, Louisiana for design issues. Dennis Seal, of Dallas, Texas testified regarding warnings. Nissan’s experts were John Johnson of Gresham, Oregon on design and Alan Dorris, Ph.D. of Atlanta, Georgia on warnings/human factors.

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State of Louisiana v. Ford Motor Company, et al.

State of Louisiana v. Ford Motor Company, et al.
(July 2007)

Michael T. Pulaski secured a 1st Circuit Court of Appeal victory for Ford Motor Company, in the case entitled State of Louisiana v. Ford Motor Company, et al., which overturned a class action certification in the 19th Judicial District Court. The State of Louisiana filed a class action petition alleging redhibitory defects in Ford Crown Victoria Police Interceptors, a vehicle marketed and specifically designed to be used by law enforcement, seeking a reduction in the purchase price and other damages. At trial, Ford argued that the State failed to establish the elements of numerosity, commonality, typicality and adequacy, which are necessary in maintaining a lawsuit as a class action. The trial court certified the lawsuit as a class action, defining the class as “All parishes, municipalities, police and sheriffs departments, law enforcement districts and other political subdivisions within the State of Louisiana who have purchased, leased or otherwise acquired Ford Crown Victoria Police Interceptors since the 1992 model year for use as law enforcement vehicles.” After oral arguments, before a five judge panel, the Court of Appeal reversed and remanded, holding that the State has not met its burden of establishing the elements necessary to maintain the suit as a class action. Supreme Court Writ Denied October 2007.

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Kevin D. Lawson ET AL. v. Mitsubishi Motor Sales of America, et al.

Kevin D. Lawson ET AL. v. Mitsubishi Motor Sales of America, et al.
Louisiana Supreme Court Reinstates Jury Verdict for Mitsubishi
(September 2006)

Keith W. McDaniel and Lance B. Williams obtained a ruling by the Louisiana Supreme Court reinstating a jury verdict in favor of Mitsubishi after two years of appeals.

On January 9, 1999, Kelli Lawson was driving her 1996 Mitsubishi Galant, when she stopped the vehicle and honked her horn. Upon honking her horn, the airbag deployed breaking both of her thumbs and injuring her right wrist. Ms. Lawson then underwent several surgeries and therapy, and claimed at trial to be permanently disabled from her job as a court clerk.

She filed suit on June 10, 1999 against Mitsubishi Motor Sales of America, Inc., alleging a manufacturing defect in the clockspring, a component which routes electrical wires to the airbag and other devices in the steering wheel. A jury trial was conducted from September 29, 2003 through October 8, 2003, and a twelve person jury returned a unanimous verdict in favor of Mitsubishi. Thereafter, the trial court granted plaintiffs’ Motion for JNOV on liability and ordered a new trial on damages. The matter was appealed and the Louisiana Third Circuit Court of Appeal affirmed the JNOV and rendered damages in excess of $1,000,000.

The Louisiana Supreme Court granted writs and reversed the Third Circuit’s and trial court’s rulings, reinstating the jury verdict.

The Louisiana Supreme Court held that the lower courts improperly applied the evidentiary doctrine of res ipsa loquitur (Latin for Athe thing speaks for itself). The Court further determined that the lower courts’ misapplication of the doctrine of res ipsa loquitur erroneously made it Adispositive of the issue of defendant’s negligence.

The doctrine of res ipsa loquitur is in actuality purely an evidentiary doctrine, and does not carry plaintiffs’ burden of proof. Rather, it shifts the burden to defendants to prove that the malfunction was not a result of a defect in manufacture.

The court found initially that the doctrine should not have been used in the subject case. Louisiana law holds that res ipsa loquitur should only apply in instances where the evidence sufficiently Aexcluded inference of the plaintiffs’ own responsibility or the responsibility of others besides defendant in causing the accident. The court noted that Mitsubishi proved at trial there had never been another reported instance of a clockspring malfunctioning because of a misalignment at the factory. Further, plaintiffs’ own experts could not verify with direct evidence the fact that the cause of the malfunction was a misalignment of the component by Mitsubishi, rather than in subsequent repairs or accidents, noting that the vehicle had been in a rental fleet for 20,000 miles. The court also noted that plaintiffs’ experts destroyed any Adirect evidence, by dismantling the steering wheel and airbag system before any notice was provided to Mitsubishi. In doing so, plaintiffs’ experts failed to adequately document the condition of the components. Accordingly, the Court ruled that plaintiffs should not be allowed to gain the benefit of circumstantial evidence, when they defeated the only possible direct evidence available – the alignment of the clockspring.

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Daphne Leray, et al. v. Nissan North America, Inc., et al.

NISSAN CRASHWORTHINESS AND BRAKE DEFECT CLAIM
Daphne Leray, et al. v. Nissan North America, Inc., et al.

After a three-week trial, a Louisiana state court jury returned a verdict for Nissan North America, Inc., finding no defect in the crashworthiness or braking system of a 1995 Nissan pick-up. Daphne Leray, et al. v. Nissan North America, Inc., et al., 17th JDC No: 80,852, verdict rendered September 1, 2006. Update: The verdict was overturned on unrelated grounds and a new trial has been ordered.

Plaintiff, Daphne Leray, was a front seat passenger in a 1995 pick up driven by her boyfriend, Jamie Adams. While traveling on a two lane road outside of Thibodaux, Louisiana, Mr. Adams allowed the vehicle to drift off the roadway onto the gravel shoulder on the right, before overcorrecting to the left, losing control and skidding across the roadway into a ditch on the left side of the highway. His vehicle rolled and vaulted into a telephone pole, with the passenger side A-pillar making the first contact with the pole. Daphne Leray was rendered quadriplegic, while Jamie Adams walked away virtually unscathed.

Ms. Leray sued Nissan North America, Inc., alleging that the vehicle’s brake system was defectively designed, because it provided only rear wheel anti-lock brakes, rather than four-wheel anti-lock brakes. The plaintiff also alleged that the “roof structure” of the vehicle was inadequate, and should have been designed to withstand the force of the impact with the pole. Plaintiff also sued the State of Louisiana for a defective roadway and Entergy Louisiana, LLC for the placement of the pole.

In an unusual twist, plaintiff also sued her initial treating doctors in a separate lawsuit, claiming that they failed to properly safeguard her cervical spine, allowing her to be without cervical protection for three days before diagnosing spinal fractures and a spinal cord injury. That suit went to trial in Jefferson Parish, Louisiana in 2002, resulting in an $18 million verdict against the doctors. Because of statutory caps to recovery in medical malpractice litigation in Louisiana, plaintiffs received approximately 1.8 million in cash as well as reimbursement for all future medicals from the doctors. Due to pre-trial rulings, however, Nissan was forced to present the fault and damages caused by the doctors, which plaintiffs denied in the second litigation.

Nissan defended the brake defect allegations by demonstrating that Jamie Adams failed to apply any steering input to the vehicle as it skidded across the roadway and into the ditch. Front wheel ABS systems, although designed to allow for steering for heavy braking, would have provided no benefit in Leray’s accident because no steering was incorporated. Additionally, Nissan defended its selection of rear wheel only ABS systems in the early 1990s as state-of-the-art and appropriate to remedy rear-wheel lock-up common in pick-ups.

Regarding the crashworthiness claims, Nissan demonstrated that the vehicle impacted the pole with the passenger side A-pillar (and the vehicle upside down) at between 16 and 18 mph. Nissan asserted that plaintiffs’ expert, Keith Friedman, was unable to provide a vehicle in production which would have withstood the localized forces exerted on the Nissan’s A-pillar, and therefore Nissan successfully argued that the design necessary to withstand such forces was not, and is not, available in passenger vehicles. Nissan also conducted testing in which various 1995 model year vehicles were dropped at 16 mph onto their A-pillar against an elevated pole. The damage seen by other vehicles was consistent with, or worse than, the damage sustained by the Nissan.

Nissan also rebutted the finite element analysis modeling conducted by Mr. Friedman which was intended to demonstrate feasible alternative designs. Instead, Nissan presented evidence to show that the modeling was inaccurate and scientifically unsound.

Plaintiffs’ sought approximately $18 million in damages (legal interest would have raised the total to nearly $25 million). The jury returned a verdict holding Jamie Adams 50% at fault and each of the two doctors 25% at fault.

Plaintiffs experts were Keith Friedman and Murat Okcouglu from Friedman Research, and Anthony Sances of Biomechanics Institute, all of Santa Barbara, California.

Expert witnesses for the defense were Garry Bahling, Vehicle Assessment Consulting, Inc. of Metamora, Michigan, on roof design and testing; Robert Rucoba, Carr Engineering of Houston, Texas, on accident reconstruction; Larry Petersen, Consulting Automotive Engineer of Grosse Point Park, Michigan, on brake design and testing; and Kelly Kennett, InSciTech of Suwanee, Georgia, on finite element analysis modeling.

Plaintiffs were represented by Jerald Block and Matthew Block of Block Law Firm in Thibodaux, Louisiana and Darryl Carimi of Carimi Law Firm in Metairie, Louisiana.

Nissan was represented by Keith W. McDaniel and Lance B. Williams of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch of Covington, Louisiana.

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