Cassidy v. Ford Motor Company
Lance Williams defeated certification in a class action against Ford Motor Company. Plaintiff attempted to convene a statewide class claiming defects in 2011-2015 Ford Explorers, which allegedly permitted exhaust fumes and other gases into the passenger compartment during operation of the vehicle. After months of litigation, on May 25, 2016, United States District Judge Kurt Engelhardt granted Ford’s Motion to Strike Plaintiffs’ Class Action Allegations and denied Plaintiffs’ Motion to Certify Class.
Bordelon v. Ford
On Friday, January 22, 2016, a jury in Orleans Parish, Louisiana returned a verdict for Ford Motor Company following a two-week trial, rejecting plaintiff’s claim that his 2005 Ford Focus contained a defective seat. Instead, the jury placed all fault for the accident on the adverse driver who rear-ended the plaintiff’s vehicle.
The lawsuit arose from a two-vehicle accident that occurred on February 5, 2011, at approximately 2:00 a.m. in New Orleans. Michael Bordelon, a co-owner of a local restaurant, closed the restaurant for the evening and traveled in his Focus toward his home. While Bordelon was stopped at a controlled intersection, Willie O’Connor, driving a Toyota Tundra rear-ended him. As a result of the high-speed crash, Bordelon sustained a severe traumatic brain injury, leaving him permanently disabled.
Bordelon subsequently filed suit against Willie O’Conner and Ford Motor Company. As against O’Conner, Bordelon alleged that O’Conner negligently rear-ended him. O’Conner testified at trial that he had no recollection of the crash because just before the collision he had suffered a “flashback” to his days in Vietnam. He also testified that he was not intoxicated despite his having pleaded guilty to DWI (Fourth Offense) and First Degree Vehicular Negligent Injuring.
As against Ford, Bordelon claimed the driver’s seat in the 2005 Ford Focus was unreasonably dangerous because of a defect in design. Bordelon’s seat expert, Michael Markushewski, M.E.T., of ARCCA, argued the seat back strength was inadequate. Bordelon’s biomechanical expert, Brian Benda, Ph.D., also of ARCCA, testified that had Ford utilized a stronger seat Bordelon would have walked away from the crash without any significant injury. In reaching that conclusion, Benda relied upon an accident reconstruction performed by Sean Harrington, B.S. in Engineering Science and Mechanics and also from ARCCA, who testified that the Tundra was traveling only 36-44 mph at the time of the collision.
Ford disputed plaintiff’s accident reconstruction by calling Tom Perl, Ph.D., P.E., of Collision Safety Engineering, L.C., who testified that the Tundra traveled 50-60 mph at the moment of impact. That speed resulted in the Focus experiencing a Delta-V of 40 mph. Ford also called a statistician, Jeya Padmanaban, M.S., of JP Research, Inc., who explained that the subject crash was more severe than 97.7% of all rear-end accidents. Additionally, she performed an analysis of hundreds of thousands of crashes and testified that seatback strength is not a statistical predictor of injury outcome.
Ford also presented testimony from Roger Burnett, M.S., a Ford engineer. Mr. Burnett explained the design process for the seat and the extensive testing Ford undertook during its development. Finally, Ford called a biomechanical expert and seat design expert, David Viano, Dr. med., Ph.D., of ProBiomechanics LLC, who testified that the subject seat design performs very well in rear-end crashes. In rebutting plaintiff’s claim that Ford should have utilized a more rigid seat, Dr. Viano introduced testing that demonstrated that the use of the more rigid alternative seat design proposed by plaintiff actually increased the risk of injury to occupants in various crash scenarios experienced much more often than the subject crash scenario and offered no injury reduction benefit even in the serious accident scenario experienced by Bordelon.
Turning to damages, plaintiff presented the testimony of a psychiatrist, Richard Richoux, MD, and a neuropsychologist, Kevin Bianchini, Ph.D., as the basis for a life care plan prepared by Larry Stokes, Ph.D. That plan included extensive attendant care for Bordelon, and plaintiff’s economist, Kenneth Boudreaux, Ph.D., calculated the value of the plan at $3.3 to $4M. In response, Ford called a psychiatrist, John Thompson, M.D., who disputed the extent of the life care plan presented by plaintiff. Ford’s expert in life care plans, Elizabeth Bauer, M.Ed., CLCP, presented a plan in line with Dr. Thompson’s recommendations, and John Theriot, CPA, calculated the present value of Ford’s life care plan at $200,000 – $310,000.
During closing arguments, plaintiff’s counsel discounted Willie O’Conner’s role in causing Bordelon’s injuries and argued that the jury should cast Ford with the majority of the fault apportionment. O’Conner’s counsel argued similarly suggesting that O’Conner’s fault played no role in the cause of Bordelon’s disabling injuries. On the issue of damages, plaintiff’s counsel suggested a general damages award from $5M to $20M. He also asked the jury to award past medicals of approximately $450,000 and future medicals of up to $4M. After deliberating for approximately four hours, the jury returned an 11-to-1 verdict and found that the Ford Focus was not defective, thereby releasing Ford from any liability. As for Willie O’Conner, the jury found him 100% at fault. The jury then assessed Bordelon’s damages against O’Conner, and it awarded $441,000.00 in past medical expenses, $300,000.00 in future medical expenses, and $500,000.00 in general damages, for a total award of $1.24M.
Ford’s trial team consisted of Keith W. McDaniel and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, Mark Boyle of Donohue, Brown, Mathewson & Smyth LLC, and Michael W. Eady of Thompson Coe.
Brumfield v. Ford Motor Company
On Saturday, June 6, 2015, a jury in Clinton, Louisiana returned a defense verdict for Ford Motor Company following a nearly 2 week long trial in an airbag non–deployment case involving fatal injuries. In reaching the verdict, the jury rejected plaintiff’s allegation that Ford defectively designed the supplemental restraint system in a 1995 Ford Mustang.
The lawsuit arose out of a series of events on March 1, 2008 that culminated in a two-car collision between a 2006 Nissan Altima operated by Dana Shell and a 1995 Ford Mustang operated by Robert Brumfield and occupied by his two minor children. Shell, a registered nurse, worked the night shift in the psychiatric ward at Baton Rouge General Medical Center, and her shift ended the morning of March 1st. According to co-workers, Shell exhibited odd behavior indicative of impairment, and she made numerous nonsensical and illegible chart entries in patients’ records. Testimony also revealed that a psychiatrist at the hospital mistook Shell for a patient that morning, and a psychiatric nurse at the facility asked a supervisor to prevent Shell from driving away from the hospital. Nevertheless, the hospital excused Shell from her next shift, and she left the hospital that afternoon in her automobile.
Shortly after leaving, Shell rear-ended a pickup truck at highway speed while still in Baton Rouge. She did not stop, and the operator of the truck, who happened to be a retired Baton Rouge police officer, gave chase. He called 911, and while on the phone with the operator, he observed Shell commit a second hit-and-run on another vehicle. Shell traveled into the city limits of Baker, Louisiana, where two separate Baker officers spotted her vehicle, activated their lights and sirens and attempted to stop Shell. However, Shell continued and ran at least one red light before pulling over approximately 1.3 miles after the Baker units began their pursuit. Baton Rouge police officers soon arrived on the scene to handle the initial hit-and-run offense, and Shell completed a written statement. In the statement, she identified her location as Baton Rouge General Hospital and wrote that she just hit an alligator in the road. Officers from both departments issued various citations to Shell, but none performed a field sobriety test. After learning that the officers planned to release Shell, the retired officer and hit-and-run victim asked for a head start so that he would not be on the roadway at the same time as Shell.
Shell then left Baker and continued to operate her vehicle in an erratic fashion, forcing at least one other vehicle off the roadway and into a ditch. Just moments later, Shell attempted to pass a row of vehicles traveling northbound on Highway 19 near Slaughter, Louisiana. While attempting this maneuver, Shell traveled northbound in the southbound lane of travel and caused an off-set head-on collision with the Brumfields’ 1995 Ford Mustang. Both vehicles traveled at approximately 50 mph at the time of the crash. As a result of the impact, Robert Brumfield died immediately at the scene, and his two children suffered relatively minor injuries. Dana Shell sustained extensive trauma resulting in approximately 40 surgical operations.
Robert Brumfield’s surviving spouse, Sunday Brumfield, subsequently filed suit on behalf of herself and her minor children against Dana Shell, Baton Rouge General Medical Center, the City of Baker, the City of Baton Rouge and Ford Motor Company. As against Ford, plaintiff contended that the wire routing from the driver side airbag sensor was defective. Plaintiff’s design expert, Michael Nranian of Automotive Design Analysis in South Lyon, Michigan, opined that the wire routing rendered the system susceptible to severing during a crash event.
Ford contended that the non-deployment was caused not by faulty wire routing, but due to a disconnected airbag diagnostic monitor. Ford’s design expert, Michael Klima of Design Research Engineering in Novi, Michigan, testified that he found the supplemental restraint system’s diagnostic monitor unplugged during an inspection, and as a result the system had been disabled. Additionally, he testified that the separated wire in the engine compartment of the vehicle was pulled apart as a result of tensile loading that developed during the accident long after the front sensors would have closed and sent a signal to deploy the airbags. Ford’s accident reconstruction expert, Dr. Geoffrey Germane of Germane Engineering in Provo, Utah, also presented evidence that the diagnostic monitor and nearby wiring components moved several inches rearward during the crash in concert with each other, thereby rebutting a suggestion from plaintiff that crush intrusion and relative motion of the components caused the disconnection of diagnostic monitor. Further, Dr. Germane and Mr. Klima testified that any movement of the diagnostic monitor during the crash occurred long after the front sensors signaled for deployment. Finally, Ford’s biomechanical expert, Dr. Thomas McNish of Biodynamic Research Corporation in San Antonio, Texas, testified that Robert Brumfield died as a result of a head strike to the A-pillar, and that Mr. Brumfield would have suffered the same fatal injury even with airbag deployment.
During closing arguments, plaintiff’s counsel requested a verdict totaling approximately $8,300,000. After deliberating for approximately 3 hours, the jury returned a unanimous verdict in favor of Ford and awarded nothing to plaintiff. Ford was represented at trial by Keith W. McDaniel, Quincy T. Crochet and Joshua Dierker of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, and by Michael W. Eady of Thompson, Coe, Cousins & Irons, LLP.
Morvant v. Ford Motor Company
On Friday, February 6, 2015, a jury in Lake Charles, Louisiana returned a defense verdict for Ford Motor Company following a two week trial in a post-collision fire case, rejecting Plaintiffs’ allegation that the brake master cylinder and reservoir assembly in decedent William Morvant’s 2002 Ford F-150 was defectively designed.
The action arose out of a single vehicle collision in January 2008, when Mr. Morvant drove off the road and into a ditch after drinking at two local bars. His vehicle slammed head-on into a concrete culvert in the ditch, causing its rear end to catapult up over the front end before the vehicle came to rest on its passenger side. A small fire began in the engine compartment and eventually progressed through the windshield and into the passenger cab. Though an eyewitness to the accident reported she observed no signs of life from Mr. Morvant when she approached the vehicle immediately after the wreck, Plaintiffs alleged that Mr. Morvant was trapped in the vehicle and “burned alive.”
Decedent’s medical records reflected ongoing treatment for alcoholism, and a post-mortem blood draw by the medical examiner’s office revealed he had a .3% BAC; however, the judge ruled that such evidence was inadmissible. The judge also excluded evidence that decedent was not wearing his seatbelt at the time of the wreck.
Plaintiffs’ experts contended that the polymer brake fluid reservoir in decedent’s F150 was cracked or dislodged from the master cylinder in the collision allowing brake fluid to escape the reservoir and ignite on the exhaust manifold. Plaintiffs’ design engineer, James Mundo, opined that the reservoir was defective because it should have been constructed of metal and should also have been ensconced with a bathtub-like shield to collect any fluids that may leak from the reservoir during a collision.
Ford contended that the fire was caused not by brake fluid but rather due to the release of power steering fluid onto the exhaust manifold, which occurred when the power steering reservoir was smashed against the bulkhead of the vehicle due to the severity of the impact with the culvert. Plaintiffs made no claim regarding the design of the power steering reservoir.
Jack Ridenour, Ford’s design engineer and fire cause and origin expert, testified that the brake fluid reservoir was properly designed, and he ran crash testing that confirmed that it was crashworthy and would have survived the impact intact. Ford’s accident reconstructionist testified to the unique and severe nature of the wreck, explaining that frontal collisions followed by pitched rollovers such as occurred in this case represent only .004% of all collisions. Additionally, Ford’s pathologist and biomechanic both testified that Mr. Morvant could not have survived the initial impact and did not “burn alive.”
Plaintiffs sought a total of eleven million dollars – five million dollars in pain and suffering, and 1.5 million dollars each for Mr. Morvant’s surviving spouse and three adult children. Ford was represented at trial by Keith McDaniel and Lance Williams of McCranie Sistrunk Anzelmo Hardy McDaniel & Welch, LLC in Covington, Louisiana, and by Perry Miles and Lauren Wood of McGuireWoods, LLP in Richmond, Virginia.
Keith W. McDaniel and Quincy T. Crochet obtained summary judgment for Ford Motor Company in the 21st Judicial District Court for the Parish of Tangipahoa in two separate lawsuits filed by Hansford McNabb and his wife, Connie McNabb, as a result of a single vehicle accident that occurred on September 17, 2010. According to plaintiffs, as Hansford McNabb was driving west on LA 10 in rural Tangipahoa Parish with his wife, Connie McNabb, riding as a front seat passenger, Hansford lost consciousness and their Ford F-250 veered off a curve and impacted a tree. Connie McNabb sued her husband and alleged he was at fault for the accident. However, Connie and Hansford also sued Ford and alleged that their injuries resulted from the non-deployment of the airbags in the F-250 due to an unspecified manufacturing defect.
Ford pushed plaintiffs for the details of their defect theory and the court ordered the production of liability expert reports, but the McNabbs failed to comply. Ford then moved for summary judgment and argued that plaintiffs developed no proof of a defect and that they deprived Ford of the ability to inspect the vehicle because they failed to preserve it after the accident. Plaintiffs suggested that the doctrine of res ipsa loquitur applied, but Ford countered that under controlling law res ipsa was inapplicable because the case did not present “highly unusual” circumstances and plaintiffs could not exclude other reasonable causes for the non-deployment – namely that the accident simply did not present forces which surpassed the deployment threshold. After hearing oral argument on the motion, the court agreed and dismissed plaintiffs’ claims against Ford, with prejudice.
Keith W. McDaniel and Quincy T. Crochet obtained a defense verdict for Ford Motor Company following a jury trial in Lincoln Parish, Louisiana in January 2014. Plaintiffs, Vivian and James Franklin, brought suit as a result of an alleged inadvertent deployment of the seat-mounted driver’s side airbag in a 2005 Lincoln LS. Vivian Franklin testified that as she was driving the airbag deployed. She described the road on which she was travelling as “smooth as glass,” and she denied hitting any potholes or objects. Although she brought the vehicle safely to a stop after the deployment event, Mrs. Franklin claimed that the deployment caused multiple cervical and lumbar disc injuries including bulges and an annular tear, headaches and chronic pain throughout her body, and difficulty with memory, vision and hearing. Plaintiffs sued Ford and alleged that the side airbag system was defective in manufacture, design and due to inadequate warnings.
Ford defended the system, with data obtained from the diagnostic module of the Lincoln LS. The module’s readout confirmed that multiple sensors within the system sensed necessary crash pulses and deployed the airbag. Ford also presented evidence to demonstrate that elements of the system’s design were state-of-the-art at the time of manufacture, that the system conformed with the custom of the industry in design intent, that the vehicle complied with all applicable Federal Motor Vehicle Safety Standards and that the design properly balanced the risk of deployment in non-crash events with the need for deployment in severe side impact scenarios. Ford also disputed Mrs. Franklin’s claim regarding the condition of the roadway through the use of DOTD records which documented widespread damage in the area of the incident.
To rebut damages and demonstrate the relatively low level of risk from a deployment in a non-crash environment, Ford presented the results of a static airbag deployment test in an exemplar Lincoln LS with an anthropomorphic test device (i.e., a “test dummy”) instrumented with various sensors. The video of the airbag deployment established that the deploying bag moves away from a properly positioned driver. Additionally, sensors in the dummy’s cervical and lumbar spine areas confirmed that forces acting on the dummy were inconsequential and less than the forces experienced through loading the spine during many activities of daily living. Based on these test results, Ford argued that the subject airbag deployment did not cause Mrs. Franklin’s disc injuries and that the deployment was not the source of her ongoing complaints. Instead, Ford contended that Mrs. Franklin’s disc injuries long pre-dated the airbag incident and that her past medical records document longstanding complaints of the same type she claimed started after the airbag deployment.
The jury found that plaintiffs failed to establish a product defect under any of the theories advanced pursuant to the Louisiana Products Liability Act.
Keith W. McDaniel and Quincy T. Crochet obtained summary judgment in favor of Nissan North America, Inc., in a lawsuit filed by Richard Reynolds in the 22nd Judicial District Court for the Parish of St. Tammany. The case arose out of a five car accident which occurred on Louisiana Hwy. 22 in Mandeville, Louisiana, in March 2008. After initially sideswiping a Honda Accord, the intoxicated operator of a Chevrolet Suburban collided with the rear left side of the plaintiff’s 2003 Infiniti G35. The impact caused the G35 to collide with another car before coming to a rest off the roadway in a ditch. Meanwhile, the driver of the Suburban continued and collided with several other vehicles.
Mr. Reynolds, who sustained personal injuries in the accident, later filed suit against his insurance carrier, an automobile auction company, Nissan and the operator of the Suburban. As against Nissan, Reynolds alleged that his injuries were caused by unspecified defects in the vehicle’s supplemental restraint system. To support his claim, Reynolds retained an expert, Dr. Claude R. Mount. However, Nissan successfully moved to exclude Dr. Mount from trial on the basis that Dr. Mount lacks the experience to testify as an expert in supplemental restraint system performance.
Nissan subsequently moved for summary judgment. Nissan argued that Reynolds lacked expert support for his defect claims. Further, despite years of litigation Reynolds failed to develop or present any proof of a manufacturing defect, a design defect, a warnings defect or a warranty defect pursuant to the Louisiana Products Liability Act. The trial court agreed and granted Nissan’s motion, dismissing it from the suit in August 2013.
Keith W. McDaniel, Quincy T. Crochet and Heather M. Nagel of McCranie, Sistrunk, Anzelmo, Hardy McDaniel & Welch LLC obtained a favorable result for Prime Conduit, Inc. (“PCI”) following a nearly three-week jury trial in the United States District Court for the Eastern District of Louisiana. Jack B. Harper Contractor, Inc. (“Harper”) filed the lawsuit against United Fiberglass of America, Inc. (“UFA”) and PCI and alleged defects in a multi-cell conduit system referred to as Multi-Gard. Prior to suit, Harper entered a contract with the Louisiana Department of Transportation and Development for the installation of digital messaging signs, cameras and radar, along with underground and structure-mounted conduit to house the power cable and fiber optic cable which serviced and powered the equipment. Harper purchased and installed Multi-Gard for use on elevated portions of Interstates 310 and 10 near New Orleans, Louisiana. UFA and PCI each manufactured certain components of the conduit system, which Harper argued was defective and caused delayed completion of the project. The case proceeded to trial before a jury with Judge Jane Triche-Milazzo presiding. PCI defended Harper’s claims, rejecting the notion that the conduit was defective and arguing instead that any issues encountered by Harper were due to faulty installation techniques. In closing, counsel for Harper asked the jury to cast PCI with 70% fault and UFA with 20% fault, and to award damages totaling almost five million dollars. However, the jury rejected Harper’s request and determined instead that PCI was only 12% at fault. The jury placed the majority of the fault on Harper at 53%, with the remaining 35% fault assessed against UFA. The jury also determined that Harper’s damages totaled less than two million dollars. After applying the fault percentages fixed by the jury, the Court entered Judgment in Harper’s favor against PCI for $229,883.52, a figure which represents less than 5% of the amount requested by Harper during closing arguments.
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.
Weiss V. Mazda
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.
Duncan v. Ford Motor Company, et al.
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.
Martin Edgar, et al. v. Ford Motor Company, et al.
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.
Kimberly Creel v. Ford Motor Company
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.
DiMaggio v. Ford Motor Company
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.
Dewright Peters v. Nissan Forklift Corporation
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.
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.
State of Louisiana v. Ford Motor Company, et al.
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.
Kevin D. Lawson ET AL. v. Mitsubishi Motor Sales of America, et al.
Louisiana Supreme Court Reinstates Jury Verdict for Mitsubishi
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.
Thompson v. Nissan
Louisiana Federal Court Judge Grants Summary Judgment to Nissan in Fire Case
A federal judge in New Orleans, Louisiana granted summary judgment on claims that the fuel system in a 1993 Nissan Pathfinder contained design and warnings defects. Leonard Thompson, et al. v Nissan North America, Inc., et al. (E.D. La., No. 03-0172).
On January 20, 2002, Betty Segura was driving a 1993 Nissan Pathfinder with five relatives as passengers. Due to an alleged deflation of the left rear tire, Ms. Segura lost control of the vehicle, which flipped and landed on its roof on a bridge over Lake Pontchartrain. A large amount of fuel spilled from the vehicle’s fuel filler tube, and ignited during the crash. Ms. Segura and three of the passengers perished. The other two passengers survived, but Leonard Thompson sustained third degree burns over a large portion of his body, including disfiguring burns to his head and face.
After the accident, the fire department personnel who responded to the scene observed that the fuel filler door to the vehicle was closed, but inside there was no evidence of a fuel filler cap having been in place prior to the fire. Plaintiffs retained Jerry Wallingford and Thomas Green, who opined that the fuel system of the 1993 Nissan Pathfinder was defectively designed. Additionally, plaintiffs’ experts alleged that Nissan failed to provide an adequate warning of the dangers associated with an improperly tightened or misplaced fuel filler cap.
Specifically, plaintiffs’ experts conducted testing to show the amount of fuel which is released through the filler tube when a vehicle is inverted and the gas cap is not in place. They then alleged that Nissan should have implemented alternative designs, which would have prevented the leakage of fuel from the filler tube if the vehicle was inverted and the gas cap was misplaced.
Nissan’s fuel system design expert, Mark Noble, testified that all of the alternative designs suggested by plaintiffs were not in existence at the time of the design of the 1993 Nissan Pathfinder. Further, Mr. Noble tested the alternative designs suggested by plaintiffs, and demonstrated that each would have defeated the utility of the vehicle. Specifically, one alternative could not be fitted to the gas tank of the Pathfinder without significant design and structural changes to the vehicle itself. All of the suggested alternative designs prevented proper pressure equalization in the tank during filling the tank at a commercial filling station. Therefore, it was shown that none of the alternative designs allowed the tank to be filled at a commercial filling station, and any attempt to fill the tank produced excessive “spit-back” of fuel out of the tank and onto the customer.
Judge A. J. McNamara, after reviewing the evidence, determined that the alternative designs were not feasible, as required by the Louisiana Product Liability Act. Additionally, the court conducted a cost/benefit analysis, and determined that the utility of the vehicle was so diminished by the alternative designs, that this cost far outweighed the benefit associated with implementing the alternative designs. The court noted that plaintiffs’ experts could produce no other known instance of a vehicle rolling over with a misplaced gas cap, resulting in spillage of fuel out of the fuel filler tube and causing a fire.
With regard to plaintiffs’ warning claims, plaintiffs’ experts failed to provide an alternative warning which, if implemented, would have prevented the accident or plaintiffs’ injuries. Leonard Thompson was the individual who last filled the gas tank. He testified that he replaced and “tightened” the gas cap all the way. Therefore, the court concluded he needed no warning of the dangers associated with failing to tighten or replace the gas cap, as plaintiffs’ experts suggested.
Nissan North America, Inc. was represented by Keith W. McDaniel and Lance B. Williams of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch in Covington, Louisiana.
Johnny Williams v. Ford Motor Company
McCranie Sistrunk Attorneys obtained a defense verdict for Ford Motor Company after a jury trial in Lafourche Parish. The unanimous defense verdict was returned on January 11, 2005 in the case entitled “Johnny Williams v Ford Motor Company” The plaintiff , a ship captain from south Louisiana, had exited his Ford Explorer leaving the engine running and the transmission not fully shifted to park. The vehicle moved in reverse and ran over the plaintiff causing severe orthopedic and eye injuries. Plaintiff claimed the transmission’s design was defective and caused the transmission to jump from park to reverse. Ford claimed plaintiff left his transmission in reverse and was responsible for his own injuries. The jury concluded the transmission was not defective under the Louisiana Products Liability Act after deliberating for one hour.
Duet v. Ford Motor Company
Lance B. Williams and Keith W. McDaniel obtained a defense verdict after a week long jury trial in Thibodaux, LA. Plaintiff, Melissa Duet, was driving her 2000 Ford F-150 when another vehicle suddenly pulled in front of her. She struck the vehicle, resulting in nearly $15,000 damage to the Ford. Her airbag did not deploy, and she claimed various cervical, lumbar and head trauma resulted from the system’s failure to deploy. She ultimately underwent a discectomy and fusion of the C5-6 vertebrae. Plaintiff alleged that Ford was liable under the Louisiana Product Liability Act for failure to comply with an express warranty, i.e., that the airbag would deploy under similar circumstances. Plaintiff presented a biomechanical expert to support her claim that her injuries were the result of the failure of the airbag to deploy. Those claims were rebutted by Ford’s design and biomechanical experts, who demonstrated that the forces were insufficient for the airbag to deploy and that plaintiff’s injuries were pre-existing and unrelated to the accident. Plaintiff asked for $250,000 in damages. The jury returned a unanimous verdict after two hours of deliberation.
Lennox Industries Inc.
Thomas P. Anzelmo obtained a ruling from the Louisiana First Circuit Court of Appeal on behalf of Lennox Industries Inc., reversing the trial court’s denial of its Motion for Summary Judgment. The First Circuit found that Lennox was not liable in a case involving substantial personal injury and property damages allegedly related to toxic mold exposure.
American Central Insurance Company, et al v. Hyundai Motor America
McCranie Sistrunk Attorneys won a victory in favor of Hyundai Motor America in the case entitled American Central Insurance Company, et al v. Hyundai Motor America in the United States District Court for the Western District of Louisiana, Monroe Division.
Plaintiffs asserted a products liability claim against Hyundai after a fire that originated in a 1999 Hyundai Elantra spread to an apartment complex and neighboring hotel. Plaintiffs, the subrogated property insurers and the owners of the apartment complex, claimed that a defect in the car radio caused the fire. Plaintiffs sought in excess of $900,000 in property damage and business losses. An unanimous verdict was returned by the jury and Hyundai Motor America was found to be 0% liable.
Windsor Inn v Hyundai Motor America
US District Court, Western District of LA., Monroe, LA. Judge James. McCranie Sistrunk Attorneys represented Hyundai. A 1999 Hyundai Elantra caught fire and burned down a 40 unit motel. Hyundai was sued and a claim made that a defect in the car’s radio caused the fire. Hyundai alleged the fire was caused by arson. An 8 person jury returned a defense verdict for Hyundai after 40 minutes of deliberation following a one week trial.
Gibson v Ford Motor Company
24th JDC, Jefferson Parish, LA. Judge Guidry. McCranie Sistrunk Attorneys represented Ford. A 1996 Lincoln subject to an ignition switch recall caught fire and heavily damaged plaintiff’s home. Also alleged were emotional damages that caused the break up of plaintiff’s marriage. Ford alleged the fire was not caused by the recall due to forensic evidence. Because the vehicle was destroyed by plaintiff’s insurance company, Ford could not offer an alternative theory. After a 2 day bench trial before Judge Guidry a defense verdict for Ford was entered dismissing all claims.
James Lee v. Ford Motor Company
McCranie Sistrunk Attorneys won a victory in favor of Ford Motor Company in the case entitled James Lee v. Ford Motor Company in Judge Buckley’s court in St. Bernard Parish. The plaintiff was a brain damaged quadriplegic. A $6.5 million dollar verdict was returned by the jury after a 3 week trial and Ford was found to be completely without liability.
Mary Siether v. Winnebago
McCranie Sistrunk Attorneys won an appeal in the 4th Circuit, which the Louisiana Supreme Court let stand, in favor of Winnebago in the case entitled Mary Siether v. Winnebago. The case involved an accident with Winnebago causing two deaths and a broken neck in a third person. The appeal set out the most comprehensive analysis of the Louisiana Products Liability Act.