It was supposed to be the first trial in the now two-year battle over sudden unintended acceleration in Toyota cars and trucks. But like so many other aspects of the Toyota litigation, the effort to set a bellwether case has taken a sudden, sharp turn.

On July 20, a Los Angeles judge ruled that, instead of the wrongful death case he originally intended to bring to trial first, the jury will hear a consumer action filed against the automaker.

That move — made over Toyota’s ardent opposition — will significantly shift the nature of the evidence that will begin playing out on November 1 before jurors in Los Angeles Superior Court, where Judge Anthony Mohr is overseeing 100 or so cases in coordinated litigation in California’s state courts.

If the jury decides that Toyota knew about those defects but didn’t divulge that information to the public, it could influence the outcome of lawsuits across the nation, most of which involve lawsuits brought by consumers rather than those who were injured or died from actual accidents.

“We hope to prove that SUA [sudden unintended acceleration] events are real and did happen to this person and that Toyota knew about them and basically hid them from the public,” said Brian Strange, managing partner of Strange & Carpenter in Los Angeles, who is a member of the plaintiffs steering committee in the California coordinated actions and represents bellwether plaintiff Michael Houlf, a retired police officer whose 2008 Tundra lurched out of control in a post office parking lot. Houlf, who suffered no injuries, alleges he was misled about the safety of Toyota’s vehicles.

TOYOTA’S OBJECTIONS

Toyota argued strenuously against putting the Houlf case on first. In court documents, Toyota attorney Vincent Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke, argued that consumer claims don’t resolve the issue at the core of the sudden-acceleration litigation — whether there were defects in Toyota’s vehicles beyond those identified in its recent recalls.

“A personal injury case is the best and most appropriate case to answer that penultimate factual dispute,” he wrote. “Houlf is not a personal injury case and will not definitively begin to address the design defect/products liability question. Thus, it should not serve as the first bellwether case tried.”

Mohr disagreed and on July 20 ordered the Houlf case, which he estimated would take 15 days, to go forward. A separate case brought by Orange County District Attorney Tony Rackauckas on behalf of California consumers over Toyota’s allegedly misleading claims will run in the background as a bench trial.

Although it was still possible that yet another case might go first, Mohr insisted that the proceedings would begin on November 1. The next status conference in the California coordinated litigation was scheduled for August 15.

Toyota’s sudden-acceleration problems forced the recall of nearly 10 million vehicles in September 2009 and January 2010. Toyota attributed the problems to improperly installed floor mats and sticky accelerator pedals; plaintiffs said the real problem lay in electronic throttles and Toyota’s failure to install brake override systems. The episode spurred hundreds of claims against the automaker in state and federal court. In addition to the California consolidated cases, 300 separate actions are pending in federal multidistrict litigation before U.S. District Judge James Selna in Santa Ana, Calif.; the first trial there is scheduled to begin on February 19.

Additional cases are being fought individually in state and federal court across the country. Last year, a federal jury in New York state found that Toyota Motor Sales USA Inc. was not liable for an accident attributed to sudden acceleration. And on July 12, just three days after the start of trial, a state trial judge in Ohio issued a directed verdict for Toyota in a warranty case. Plaintiffs attorneys leading the coordinated actions across the nation consider both cases outliers, although Toyota objects to that description.

Until Mohr’s ruling, the first case slated to go before jurors in the coordinated litigation was brought by Peter Uno, who alleged that his wife, Noriko Uno, died on August 28, 2009, after her 2006 Camry accelerated to as fast as 100 miles per hour and crashed into a telephone pole.

Following a March 27 inspection of the vehicle, Toyota’s attorneys argued in court documents that Uno’s Camry might have been struck by a 2003 Lexus just one minute earlier, two blocks away, driven by a woman named Olga Bello. That incident could have contributed to the accident, Toyota said.

The Upland, Calif., Police Department concluded that the incidents were unrelated, but Toyota attorney Curtis Jimerson insisted the defense had “discovered physical evidence strongly supporting a conclusion that the Uno and Bello crashes were indeed related,” according to court documents. Among the evidence were “paint transfers consistent with an impact from Bello’s Lexus,” wrote Jimerson, also of Bowman and Brooke. On May 31, Toyota named Bello in a cross-complaint.

Bello’s attorney, James Hart of the Law Office of Craig Holtz in Glendale, Calif., said his client denies any responsibility for the fatal crash. “The officers involved were aware of both incidences, and came to the conclusion that they were not able to identify the hit-and-run vehicle as being the same vehicle that Mrs. Uno was driving,” he said. “So we’re kind of surprised we were brought into the case based upon the police investigation.”

He said Bello had been traveling with her adult daughter in the passenger seat when another, unidentified vehicle hit her and took off. Bello was unhurt but her daughter was rushed to the hospital with minor injuries. Uno’s attorneys named Bello as a defendant in an amended complaint filed on May 25.

Armen Akaragian, an attorney at Mar­dirossian & Associates Inc. in Los Angeles, said bringing Bello into the Uno case doesn’t change much. “The liability against Toyota is still there,” he said. “We still have a case against Toyota for lack of a brake override. Even if there was an impact that caused sudden acceleration of the vehicle, there still should be safety measures built into the vehicle to have the driver slow down or stop the vehicle, no matter what caused it to go out of control.”

On July 13, Mohr granted Bello’s request to continue trial in the Uno case until April 15. That time frame was designed to avoid a conflict with the February trial date in the federal MDL.

With Uno delayed, the Houlf case, originally slated as the second destined for trial, jumped up in line. Galvin said discovery related to the consumer claims in the case could not be ready in time, particularly since much of it relied on a coordinated economic class action pending in the federal MDL. In that case, discovery deadlines are set through March. He suggested putting off the California cases altogether until after the trial in the federal MDL.

Houlf claims that even before the parking lot crash, his Tundra underwent sudden acceleration on a highway — even, he insists, before Toyota’s recalls. He took the truck to a Toyota dealership for repairs under the recall, but in April 2010 it surged forward outside the Cool, Calif., post office. “Despite hitting the brakes, the vehicle’s engine would not stop accelerating,” the complaint says. “The vehicle was jerking and surging while Plaintiff attempted to stop the vehicle. The Tundra finally stopped when Plaintiff turned off the engine.”

Houlf wasn’t injured, but claims the Tundra should have been fitted with a brake override system because Toyota had known since 2002 that its vehicles had a tendency to accelerate on their own. He seeks damages under California’s Song-Beverly Consumer Warranty Act and other state consumer protection laws, plus punitive damages.

“The Houlf case will center on whether Mr. Houlf, who is a retired policeman, had an SUA event,” Strange said. “And when he took his car in and complained about the SUA event, whether Toyota knew that SUA events were occurring — that when they said it’s really the floor mat or the pedal — whether they knew that the solution for SUA events would be some kind of brake override.”

THE SAYLOR CASE

Looming in the background is a potential trial involving family members of Mark Saylor, a California Highway Patrol officer who died along with his wife, their 13-year-old daughter and his brother-in-law after his 2009 Lexus accelerated on a highway near San Diego. Surviving family members settled their claims against Toyota for $10 million, but have outstanding claims against Bob Baker Lexus, the dealership that rented the car to Saylor. Mohr has ordered that the action should go to trial first if for some reason the Houlf case is delayed.

In court documents, plaintiffs attorney Timothy Pestotnik, a partner at San Diego’s Pestotnik + Gold, estimated that the trial could last 16 days. “These are their parents — or, in the case of the 13-year-old, their grandparents,” he said.

Larry Willis of Willis DePasquale in Orange, Calif., who represents Bob Baker Lexus, wrote in court documents that his client intends to blame Toyota on the ground that an electronic defect, not improperly installed floor mats, caused the accident. As a result, he wrote, his client needed more time for discovery.

Mohr disagreed. It remained unclear when the Saylor family will have their day in court if the Houlf case goes forward as intended. And Strange predicted that it would. “I feel it is — it’s going to go,” he said.

Amanda Bronstad can be contacted at abronstad@alm.com.

 A TIMELINE OF LITIGATION AGAINST TOYOTA MOTOR CORP.