Defense Verdict: Jury Finds Vehicle Defective But Driver At Fault

In a case the judge reportedly called the biggest civil trial in the history of the county, an Ohio jury on March 21 rendered a verdict in favor of the defendant, Yamaha Motor Corp., in a $20 million case involving the death of a 10 year-old girl, in spite of its conclusion that the ATV at issue was defective in its design or warnings. The machine at issue was Yamaha’s Rhino. reports that this was the sixth case won at trial by Yamaha over claims that its ATV is prone to rollovers; however, it reports that Yamaha settled more than 100 others.

The facts of the case were quite sad. It was reported by the local news that the 10 year-old plaintiff riding in the Rhino at a 2007 church picnic. The 21 year old driver, according to the defense, was inexperienced with the machine. He attempted to perform a high-speed “fishtail” stunt maneuver in a dark, muddy cornfield with multiple unhelmeted child passengers. The driver was not sued in the civil action but pleaded no contest to criminal charges.

It is refreshing to see that jury members, in spite of the tragic underlying facts of the case involving death of a child, seriously and thoughtfully deliberated as to what they believed was the true cause of the injury. This case is reminiscent of another case in Texas, which we covered here, involving very similar facts with a very different outcome. There, an 18 year-old Texas man was boating and swimming with friends when the driver of the boat, another 18 year-old, put the boat in reverse, striking his leg with the propeller. It eventually resulted in the loss of his leg.

The Texas plaintiff sued the makers of the boat, alleging the propeller was defectively in its design. The Texas jury did not believe that the actions of the driver, who was not named as a defendant, was a superseding cause of the injury. It attributed only 17 percent of the negligence to the driver, and ultimately awarded the plaintiff $3.8 million in damages for the loss of his leg. These cases are further proof that with a jury, it’s always a gamble.

Juror’s Failure to Disclose Family Member’s Similar Injury Involving Similar Product Did Not Warrant New Trial

Last month, a New York federal court ruled that a prospective juror’s alleged failure to disclose in a products liability suit that a family member of his had been injured under circumstances similar to the plaintiff’s, while using the same product, did not warrant a new trial. Leibstein v. LaFarge North America, Inc., — F. Supp. 2d—, No. CV-06-6460, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011). The case involved a plaintiff who allegedly suffered third-degree burns to his knees while laying a portland cement product in his basement. He filed suit on theories of strict liability and negligence, and his wife joined the suit with a claim for loss of consortium.

The jury returned a verdict in favor of the plaintiffs in the amount of $125,400. Interestingly, it was the plaintiffs who alleged that a new trial was warranted based on the juror’s alleged failure to disclose during voir dire a similar injury to a family member. The Court noted that the request “presumably was triggered by plaintiffs’ disappointment as to the size of the award.”

The plaintiffs’ motion for a new trial was based largely on information supplied in an affidavit authored by the injured plaintiff’s wife. According to her submission, she spoke with several jurors following the trial during which time she became aware of facts previously undisclosed. Specifically, she learned from these jurors that another juror, “juror number four,” had disclosed during deliberations that a member of his family similarly had been burned while using a portland cement product. The juror failed to disclose this information, in spite of the fact that this information was responsive to questions asked of the jury panel on voir dire.

One might initially wonder on what theory the plaintiffs would hang their hat. It certainly seems as though the defendant would be most prejudiced by the fact that a juror’s family member was injured in the same way as the plaintiff allegedly was. The plaintiffs’ theory was this: “Most probably, this person did not bring a lawsuit or receive any compensation” and, accordingly, the juror was unsympathetic to plaintiffs’ claims. Although it is unclear what damages were submitted by the plaintiffs to the jury, it certainly doesn’t seem that $125,400 was entirely “unsympathetic.” In any event, the court disagreed with the plaintiffs’ allegation that had this information been disclosed by the juror, there would have been valid basis for a challenge for cause.

Thus, the court held that a new trial was not warranted, and the verdict should stand. The court based its ruling on the fact that there was no dispute at trial that an improper use of portland cement could cause burns. This was therefore not an issue at trial. Rather, the “crux of the liability dispute” was whether the packages of cement purchased by the plaintiff contained adequate warnings of that hazard. Accordingly, the information was not sufficient to warrant a new trial. Furthermore, the court held the “sketchy, second- and third-hand information” provided by the plaintiffs did not warrant a post-verdict inquiry into the juror. The court concluded instead that the $125,400 “verdict fits comfortably within the realm of reasonableness.”

Timing May Play a Part in Record Numbers of Big Verdicts Against Makers of Products

An interesting article published by Businessweek last month discusses what has become a growing trend in United States product liability law: a surge in big awards against companies accused of putting defective products in the marketplace. According to the article, ten of the 50 biggest jury verdicts last year came in product-defect cases, compared to five in 2009 and only one in 2008. In 2010, there were 15 jury verdicts of $25 million or more, versus seven in 2009.

We previously reported on two of these exceptionally large verdicts. The most recent of those was the $66 million verdict against exercise equipment manufacturer Cybex International, wherein a New York jury awarded the sum to a physical therapist who became paralyzed when an exercise machine fell on her at work. As we reported, the verdict, if allowed to stand, threatens to bankrupt the company. The company’s chief operating officer reportedly said of the suit that he has no idea what the company did wrong.

The second of those cases was that of the $500 million punitive damages award against Teva Pharmaceutical Industries, upon which we reported back in May as appearing to be a case of misplaced anger. There, a Nevada jury found that the company’s packaging of its anesthetic drug created a risk of contamination, thus leading to the plaintiff’s contracting of hepatitis.

So what’s the cause of these enormous, seemingly unwarranted verdicts? Legal experts consulted by Businessweek identify several factors: a stalled economy and recent flood of negative corporate news such as the BP oil spill, Toyota sudden-acceleration suits, and bank foreclosure practices. Some believe these issues have fueled public anger, and thus affected lawsuits across the country against other companies in unrelated cases. Defense attorneys consulted for the article note that it is now almost impossible to detect jurors’ prejudice and bias against corporate America, which today is “more subtle and not always conscious.”

Also quoted in the article is a comment by one of the team of attorneys who won the $500 million award against Teva. He reportedly attributes the rise in large product-defect awards to “cheap defendants and cheap insurance companies. . . . The defendants and the insurance companies are holding onto their money and they’re not settling the cases.” One can hope that his comment was taken out of context. Certainly, he doesn’t propose that company defendants and their insurers fork out huge sums of money to settle claims they believe have no merit? I don’t think this makes them “cheap.” A wise man once said that a jury trial, in spite of its shortcomings and pitfalls as discussed in the article, is one of the most distinguishing and greatest parts of the American judicial system. It sounds like there may be plenty of them this year.