While attempts to reopen federal product liability suits against Toyota Motor Sales U.S.A. in the Eastern District of Texas have essentially stopped, a plaintiff is charging ahead in a similar state court case with the help of a recent appellate court ruling.
In its Jan. 20 mandamus opinion in In Re: Toyota Motor Corp. and Toyota Motor Sales U.S.A., Waco, Texas' 10th Court of Appeals ruled that plaintiff Pennie Fay Green can proceed with discovery in her attempt to obtain a contempt order and sanctions against the automaker. Green filed her motion after a former Toyota in-house lawyer filed a complaint that includes discovery-abuse allegations against two Toyota entities, allegations Toyota denies.
Pennie Faye Green v. Toyota Motor Corp., et al. involved the rollover of a Toyota Camry that left Green a quadriplegic. The suit she filed settled confidentially nearly three years ago; it was dismissed by the 18th District Court in Johnson County on April 23, 2007, according to Green's motion for sanctions and contempt.
But on Sept. 21, 2009, Green filed a motion in the 18th District Court seeking sanctions against the Toyota defendants after learning that Dimitrios P. Biller, the former managing counsel in charge of Toyota's National Rollover Program, Dimitrios P. Biller, the former managing counsel in charge of Toyota's National Rollover Program, had sued his former employer on July 24, 2009, in the U.S. District Court for the Central District of California. Biller alleges wrongful termination, among other things.
In his complaint in Dimitrios P. Biller, et al. v. Toyota Motor Corp., et al., Biller alleges that his former employer Toyota Motor Sales, U.S.A. as well as Toyota Motor Corp. and others "conspired and continue to conspire, to unlawfully withhold evidence from plaintiffs" in rollover accident litigation filed against the companies. In his complaint, Biller mentions five cases in which evidence allegedly was withheld from those plaintiffs, including Green. Toyota denies the allegations, according to a company spokeswoman. In its mandamus petition to the 10th Court, the Toyota defendants challenged an Oct. 27, 2009, trial court order in Green that said they must "preserve any and all documents, records, data, electronically stored information, and evidence relevant to Pennie Fay Green's case, her motion for contempt and her motion for sanctions." They argued that the 18th District Court had abused its discretion by issuing the order because the trial court's plenary jurisdiction had long since expired. But the 10th Court disagreed.
"In Green's motions filed in the trial court proceeding, it is clear that she seeks discovery sanctions payable to her for the perceived violation of the discovery order in addition to simply informing the court of the possibility of contemptuous conduct on the part of Toyota," wrote 10th Court Chief Justice Tom Gray, joined by Justices Felipe Reyna and Rex Davis.
"It is not possible to tell, at this juncture, if the order rendered by the trial court is for the trial court to proceed with its investigation of whether Toyota's alleged failure to comply with a discovery order justifies a determination of, and punishment for, contempt or whether the trial court is proceeding to consider Green's request for sanctions payable to Green," Gray continued.
"Accordingly, we deny the petition for writ of mandamus without prejudice," Gray wrote. "By denial of the petition based on the record before us, we express no opinion on the trial court's jurisdiction to render a sanction order against Toyota payable to Green," Gray concluded.
Celeste Migliore, a spokeswoman for the Toyota defendants, declines to comment on the decision.
Jeff Embry, a partner in the Tyler, Texas office of Hossley & Embry who represents Green, says, "What this opinion means is the trial court will proceed with investigating whether or not Toyota violated [the trial court's discovery] order and should be held in contempt."
"We've noticed Mr. Biller's deposition to occur in the Johnson County Courthouse on Feb. 3," Embry says. "We've asked him to bring with him any documents related to a crime or fraud committed by Toyota."
Unlike Green, numerous federal plaintiffs with closed products liability cases against the Toyota defendants recently took a different approach when attempting to reopen their litigation.
After Biller filed his wrongful-termination suit against the Toyota defendants, 17 sets of plaintiffs in closed products liability cases filed new complaints on Sept. 25, 2009, against Toyota Motor Corp., its affiliate Toyota Motor Sales U.S.A. Inc. and others. In the new complaints filed in the Eastern District of Texas, the plaintiffs accused the Toyota defendants of Racketeer Influenced and Corrupt Organizations Act violations and civil conspiracy, among other things, related to alleged discovery abuse in their previous products liability cases. The Toyota defendants denied the allegations.
On Oct. 1, 2009, Biller, of his own accord, tendered four boxes of documents related to past litigation against the Toyota defendants to the court of U.S. District Judge T. John Ward of Marshall, Texas. But after reviewing the documents, E. Todd Tracy of Dallas' The Tracy Firm, who represents those 17 sets of plaintiffs in Raul Lopez, et al. v. Toyota Motor Corp., et al., filed a notice of dismissal without prejudice on Dec. 23, 2009 -- a motion Ward signed on Jan. 4.
In December, Tracy said he saw nothing in the boxes indicating that Toyota engaged in discovery abuse in his clients' products liability cases. "Since I didn't see anything that was applicable, I didn't feel that it was right to prosecute at this time. I did not see a smoking gun. I didn't even see a smoldering gun," Tracy said.