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A wrongful death case hand-selected as the first to go to trial against Toyota Motor Corp. over alleged sudden acceleration defects might be delayed amid arguments over whether the dealership that serviced the vehicle should be included as a defendant. The arguments between plaintiffs’ and defense counsel broke out during a hearing on Sept. 12. During the same hearing, plaintiffs’ attorneys suggested that the first class action to go before jurors would seek economic damages on behalf of just California consumers. Those actions represent two of the nearly 300 lawsuits comprising multidistrict litigation before U.S. District James Selna in Santa Ana, Calif. Selna has refused to waiver from his insistence that bellwether trials begin in 2013. The first case involves Paul Van Alfen, a Utah resident whose 2008 Camry lurched suddenly while on an exit ramp off Interstate 80 in northwestern Utah. The complaint alleged that he slammed on the brakes, but the car kept accelerating and crashed into a wall. Van Alfen died at the scene, his wife and son were injured, and a fourth passenger died in the hospital the next day. The survivors and family members of the deceased filed suit in federal court in California on May 13, seeking unspecified damages for medical expenses, lost earnings and funeral costs, plus punitive damages. In a tentative order issued earlier on Sept. 12, Selna refused to grant Toyota’s motion to dismiss the case based on jurisdictional ground. In court documents, Toyota had argued that the case should not be in federal court because it asserts personal injuries and breach of contract under Utah laws and that the only federal claims, brought under the U.S. Magnuson-Moss Consumer Warranty Act, require that damages amount to more than $50,000. Van Alfen’s vehicle sold brand new for $21,000 and had 45,730 miles on it. Selna said in his order that it was unclear whether punitive damages were excluded from the $50,000 cap and, as a result, refused to grant Toyota’s motion. But during the hearing, he raised the possibility that the case could drop down the list after both sides refused to come to agreement on whether the dealership that serviced the vehicle should be part of the case. Toyota attorney Vince Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke, said his client never wanted to see the case delayed. “This case is going to be tried regardless,” he said. But he insisted the plaintiffs’ attorneys dismiss the dealership from the action if they want to argue for jurisdiction in federal court. The case could conceivably be tried in state court in Utah, but Selna has said that he plans to oversee the bellwether trials in the MDL. Plaintiffs’ attorney Mark Robinson argued that if the dealership were dropped from the case, Toyota would place blame on the “empty chair” in the room. Robinson, a senior partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif., said it was unclear whether the dealership — Tony Divino Toyota in Riverdale, Utah — ignored warnings to fix the car during the numerous times it was serviced before the accident. “There are a lot of facts to be uncovered here,” he told Selna. Galvin said there was “no basis” for Toyota to assert the dealership did anything wrong. Afterward, Selna said he would “take another look at this from top to bottom.” He indicated he would certify his decision regarding the jurisdictional dispute for appeal to the U.S. Court of Appeals for the 9th Circuit, which would allow Toyota to potentially overturn his ruling. Selna also urged plaintiffs’ attorneys to consider using another of their bellwether selections for the first trial. Plaintiffs’ attorneys have identified two other bellwether personal injury cases: One was brought by a Florida couple over an accident in Miami Gardens in April 2010 involving a 2004 Prius. Despite stepping on the brakes, the wife claimed, she lost control of the car, which flew through four lanes of traffic and collided into a fence and a tree. She seeks punitive damages. The other case involves a woman in Hickory, N.C., whose right leg had to be amputated after her 2006 Camry suddenly accelerated in June 2010. The complaint said that she braked but, after the accident, the car’s throttle remained fixed in a position greater than 75% open. Selna also addressed which class action would go to trial first. He insisted that the class actions, which were brought on behalf of consumers rather than individuals who were injured or died in accidents, would not be left on the backburner. “We will have a class action trial in 2013,” he said. “The class actions should not be the step-children.” He asked both sides to file briefs indicating what type of class action they’d like to put before jurors first. Steve Berman, managing partner of Seattle’s Hagens Berman, co-lead counsel on the plaintiffs’ steering committee for the economic claims, said he would amend an existing complaint to include only California consumers as the bellwether class action. Following the hearing, Berman told reporters that the case could involve about 20 class representatives filing on behalf of 1 million consumers. Toyota attorney Cari Dawson, a partner at Atlanta’s Alston & Bird, told reporters that a California class action would be a poor bellwether because it would not be representative of consumers who filed in other states. She said that class certification should be decided in courts where the consumers originally filed suit, not in California. Selna scheduled an Oct. 11 hearing on the selection of the bellwether class case. Amanda Bronstad can be contacted at [email protected].

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