Sunday, December 15, 2013
Friday, October 25, 2013
According to the New York Times, the jury had also determined that Toyota had acted with "reckless disregard" and was about to begin deliberations on punitive damages when the settlement was announced. The New York Times article also appropriately emphasizes that the case is noteworthy because plaintiffs' tried their claims of electronic throttle control problems.
Though the New York Times article notes the ages of the plaintiff driver was 82 (the Los Angeles Times says she was 76), the New York Times article does not note that there have been in the past been particular concerns of pedal misapplication by older drivers, and the article does not reference a government report that found no problems in Toyota's electronic throttle control system. According to CNNMoney, Toyota apparently argued that the plaintiff in Oklahoma case hit the gas, rather than the brake. In response, plaintiffs pointed to long skid marks on the road, suggesting the driver was hitting the brake. One wonders if the event data recorder in this car might have shed more light on the issue. Toyota would certainly want to avoid having juries deciding unintended acceleration cases based on the believability of the testimony of a driver who claims to have hit the brake, rather than the accelerator. If Toyota is unable to exclude plaintiffs' proferred expert testimony of electronic throttle control defect on the grounds that such testimony is not scientifically reliable, then Toyota should also be concerned that the jury may be unable to grasp the arcane details of software code design. I'm reminded of the line by Robert Duvall's character in the film, A Civil Action, depicting the Woburn water contamination case; waiting for a jury decision, his character opines, "[I]t's not going to have anything to do with dates or groundwater measurements or any of that crap, which nobody can understand anyway. It's going to come down to people like it always does."
Tuesday, November 23, 2010
Last week, District Judge James Selna refused to dismiss the economic injury claims by Toyota owners who alleged that the unintended acceleration problems caused a decrease in their cars' value. The multi-district litigation includes more than 200 economic injury class actions and around 100 personal injury and wrongful death claims. Judge Selna will consider Toyota's motion to dismiss the cases alleging wrongful injury and death on December 9. Here's a link to the National Law Journal story.
Monday, November 22, 2010
The family who lost a son and granddaughter in the accident has come together with the man driving the Toyota to file a suit against Toyota for unintended acceleration. Jan Crawford of CBS has the story.
Sunday, September 19, 2010
According to an article in the Wall Street Journal, Toyota has settled, for an undisclosed amount, an unintended-acceleration lawsuit involving the deaths of four persons. The accelerator appeared to have been caught in the floormat. The article notes that Toyota faces about 200 unintended-acceleration lawsuits.
Monday, May 17, 2010
Recent crises stemming from BP's oil spill and Toyota's acceleration problems have brought a swarm of media coverage, congressional hearings, regulatory agency activity, corporate news conferences, and lawsuits. Indeed, theories of liability may stem not only from the initial traumatic incident or incidents, but from the corporation's putative mishandling of the crisis once it unfolds. On the corporate side, what's called for is thoughtful and coherent crisis management that moves the corporation through the crisis in a way that resonates with corporate core values, thereby maintaining the value of the ongoing enterprise, and that is mindful of impending theories of liability.
Despite the great need for such a coherent approach to mass tort crisis management, what's remarkable is the apparent paucity of attention given the subject by legal scholars. That may be because crisis management involves public relations and communications, as well as management and leadership; hence crisis management has been the focus of public relations consultants and some professors in communications schools and business schools. But at the heart of corporate crises are frequently the law and liability, so law professors should not be absent. Lawyers and law firms already occasionally promote their ability to handle an emerging corporate crisis by quickly assembling a team of lawyers from a broad array of areas -- see, e.g., Skadden's Crisis Management; and lawyer practitioners have delivered various continuing education talks and papers on crisis management, as well as an interesting short symposium paper by Harvey L. Pitt and Karl A. Groskaufmanis, When Bad Things Happen to Good Companies: A Crisis Management Primer, 15 Cardozo L. Rev. 951 (1994). But while practitioners bring on-the-ground expertise, they may lack the theoretical depth and interdisciplinary zeal of law professors, and practitioners present a conflict-of-interest risk in preferring, for example, fee-heavy litigation over other methods of mass tort crisis management and resolution. A full academic account of mass tort crisis management would entail an awareness and integration of various legal areas -- tort, procedure, litigation, ethics, regulatory action, congressional investigations and activity (including possible compensation funds), and pertinent constitutional issues -- with public relations and management. I look forward to turning my attention increasingly to that task.
Where do you look for corporate crisis management expertise in mass torts? Books, articles, law firms, or consultants? Does your law firm market itself as offering corporate crisis management; if so, what's your approach? If you work at a consulting group that does crisis management, do you have in-house lawyers that assist you or do you work with the corporation's outside counsel? Feel free to post a resource or comment.
May 17, 2010 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship, Procedure, Regulation, Vehicles | Permalink | Comments (0) | TrackBack (0)
Thursday, May 6, 2010
The article referenced by Beth Burch below reads like a who's who of mass tort and class action litigation. But really the reason for this post was the nerdy title.
Monday, April 12, 2010
Friday, March 26, 2010
Here is an interesting article about the JPMDL oral arguments in the Toyota lawsuits: Lawyers Play Speed-Date in Toyota Tussle.
The issue the article discusses (rather disdainfully) is who will be the lead lawyers in the Plaintiffs' Management Committee because those lawyers will lead the litigation, garner the most fees, etc.
More needs to be written about procedures to allocate power among plaintiffs attorneys as well as fees, a process that could use more process.
Note too the names raised in the article: Mark Lanier (Houston based) who tried the Vioxx cases, Mark P. Robinson Jr (who according to the article was involved in the Ford Pinto litigation in the 70's), and Mark Geragos (who is best known for representing Michael Jackson).
h/t Todd Gilbert
Monday, March 15, 2010
Monday, February 22, 2010
Professor David Owen (South Carolina) and I are quoted in a report tonight on All Things Considered on National Public Radio; the audio report -- Toyota Seen Facing Multiple Lawsuits, by Wendy Kaufman -- will also be posted on the web tonight at 7:00 p.m. EST.
February 22, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Procedure, Products Liability, Regulation, Resources - Federal Agencies, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)
Sunday, February 14, 2010
The Economist suggests a connection between Toyota's continuing manufacturing problems and a corporate culture that fails to raise problems because it is overly deferential. I have separately heard that Asian airplane co-pilots have had to be specifically trained to overcome their traditional cultural deference and challenge the actions of pilots, if warranted, in emergency situations. Here's an excerpt from article:
Toyota’s problems are its alone, but they highlight broader failings in Japanese corporate governance that make large companies particularly vulnerable to mishandling a crisis in this way. Such firms typically have a rigid system of seniority and hierarchy in which people are reluctant to pass bad news up the chain, thus keeping information from those who need to hear it in a misguided effort to protect them from losing face. In many firms, including Toyota, family ties make challenging the boss all but impossible. Any attempt to short-circuit the hierarchy is deemed an act of disloyalty and a violation of the traditional consensual corporate culture. Groupthink becomes entrenched because there is so little mobility between companies: hiring from outside is thought to disrupt a firm’s internal harmony, and an executive willing to move will be stained as a disloyal “job-hopper”. This further hinders firms’ ability to take bold, decisive action. The preference for harmony crowds out alternative viewpoints.
Tuesday, February 9, 2010
Wednesday, February 3, 2010
Friday, January 29, 2010
The ABA Journal article is here. Apparently class actions have already been filed by consumers who claim that their cars are now worthless. The article quotes the Wall Street Journal quoting Richard Nagareda (Vanderbilt)
"Since it will be hard to represent a nationwide class," he said, "I don't think this litigation will be a big moneymaker for plaintiffs."
Tuesday, December 22, 2009
Friday, June 26, 2009
Article in the Wall Street Journal -- Car Liability, Dealers Pose New Hurdles For GM Plan, by Mike Spector and Jeffrey McCraken. Here's an excerpt:
The discussions show how the federal government's GM rescue is brushing up against the limits of its ambitious legal approach, which attempted to use the Bankruptcy Code to override many state legal contracts and protections.
This could ultimately expand the cost of GM's $60 billion bailout, though government officials say it
shouldn't delay the emergence of a "new GM" from bankruptcy protection.
Wednesday, March 26, 2008
The Recorder reports that Alameda County Superior Court Judge Robert Freedman has preliminarily approved a 49-state class action settlement between General Motors and plaintiffs over auto repairs. The settlement is worth approximately $150 million to car owners even though it reportedly compensates them for only about 50% of the repairs. Here’s an excerpt:
Under the settlement, the class would be split into three groups based on the cars they drive, the type of engine and the kinds of repairs performed. Plaintiffs would collect $50 to $800 per repair, with speedier repairs generating larger reimbursements.
The settlement does not cap the total amount GM would pay class members, though it does set maximums in other areas: court-approved attorney fees of up to $16.5 million, litigation expenses of up to $1.55 million and total named plaintiffs' incentive awards of up to $140,000.
Lawyers in California and Missouri first filed suit against GM about five years ago, claiming the auto manufacturer used an engine coolant in factories that created performance problems in more than 30 models of GM cars, including the Oldsmobile Cutlass and Chevy Impala. All of the cases targeted Dex-Cool, a coolant GM started using with the 1995 model year. The suits asserted claims for breach of warranty and violations of unfair business practices statutes.
GM was represented by Robert Ellis, a Chicago-based partner at Kirkland & Ellis. Through a Kirkland spokesman, Ellis referred calls about the settlement to a General Motors spokesman, who declined to comment.
Earlier in the litigation, plaintiffs attorneys experienced some bumps along the road to class certification.
Four years ago, Alameda County Superior Court Judge Ronald Sabraw denied a motion seeking class certification to get declaratory judgment on one issue in the California piece of the litigation.
In 2006, after Sabraw retired from the Alameda County court, the same plaintiffs filed a motion seeking certification of a California class to establish liability. Judge Freedman denied that but said the plaintiffs could bring a renewed motion supported by additional evidence. The plaintiffs asked to certify a California class last year for a third time, supporting it with affidavits from four expert witnesses. That time, Freedman granted class certification.
Thursday, February 7, 2008
Earlier this week Ford recalled some 225,000 vehicles ranging in make and model over a concern about a faulty cruise control deactivation switch. Here’s an excerpt of the story from Forbes:
Ford discovered the wiring harnesses problem while repairing a vehicle in its own fleet and said no accidents or injuries have been caused by the problem.
The cruise control switch recall was due to engine fires linked to the cruise control systems in trucks, sport-utility vehicles and vans.
The vehicles in the new recall include 185,000 E-Series vans with model years ranging from 1992 to 2003.
Other affected vehicles include 1993-95 Ford Taurus SHO; 1992-98 Ford Crown Victoria and Mercury Grand Marquis; 1992-95 Lincoln Town Car; 1993 Ford Bronco; 1993 gas powered Ford Super Duty; and 1995-97 gas-powered Ford Super Duty stripped chassis.
Ford said not all vehicles in those model years had the faulty wiring harness installed, and it will contact affected owners.
Wednesday, September 12, 2007
Article in the ABA Litigation News -- Maryland Expands Product Liability for Unmanifested Defects, by Brian A. Zemil. Here's an excerpt:
Rejecting the majority rule adopted by other states, Maryland’s highest court has held that unmanifested product defect claims can be actionable even when the plaintiff fails to allege personal injury.
In Lloyd, the Maryland Court of Appeals reinstated a class action brought by plaintiffs who had sued auto manufacturers that sold cars allegedly containing defective seatbacks—even though the defects had yet to manifest themselves, let alone cause actual injury to the class members. Because the flaws could potentially cause death or serious injury, the court held that the cost of repairing the seatbacks was actionable in tort and contract and as a consumer protection claim.
The decision forms “part of a hotly contested nationwide dispute over whether a product that has a possibility of malfunctioning is defective such that it can support a consumer-type product liability class action claim for economic loss,” says Scott L. Nelson, Washington, DC, former Co-Chair of the Section of Litigation’s Class Actions and Derivative Suits Committee.