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A Los Angeles judge has tentatively scheduled the nation’s first trial against Toyota over its sudden acceleration defects for April 2012. Meanwhile, a federal judge tossed out the leading bellwether case in a related multidistrict litigation proceeding. Los Angeles County, Calif., Superior Court Judge Anthony Mohr, who is overseeing more than 100 cases filed in California state court against Toyota Motor Corp., ruled on Sept. 30 that a class action brought in part by Orange County, Calif., District Attorney Tony Rackauckas would be among the first to go to trial, to run concurrently with unspecified additional bellwether cases. He invited briefs regarding what those cases would be. On Sept. 29, U.S. District Judge James Selna, who is overseeing nearly 300 cases coordinated in federal multidistrict litigation against Toyota in Santa Ana, Calif., dismissed the plaintiffs’ top pick for the first trial in that proceeding, scheduled to begin in February 2013. Selna wrote that the federal courts lacked jurisdiction in the case, which involved an accident in Utah. At the start of the state court hearing, Mohr asked whether Selna’s ruling would affect the California cases. Lead attorney Mark Robinson, a senior partner at Calcagnie, Robinson & Calcagnie in Newport Beach, Calif., who sits on plaintiffs’ steering committees in both the California cases and the federal MDL, said he planned to file the Utah case again, but without naming as a defendant the Utah dealership that serviced the vehicle involved. “I think I’ve cured the problem,” he said. Most of the hearing addressed which of the state cases should be selected for bellwether trials. The plaintiffs’ attorneys are pushing for the Rackauckas complaint, in which Robinson is co-counsel. “There are common threads in that case that really help all of us in all the cases,” Robinson said, including Toyota’s failure to warn its customers that it had not installed a brake override system that might have prevented sudden acceleration. Rackauckas seeks civil penalties associated with claims of false advertising and unfair business practices on behalf of Californians who own Toyotas. “We’ll be trying the question of whether or not there are any mechanical defects, electrical defects or any other kind of defects, and when did Toyota know about these defects. And then, what did they do concerning these defects?” Rackauckas told Mohr. “That evidence will be instructive for all the cases that follow.” Plaintiffs’ lawyers have proposed that the district attorney’s case could run alongside three breach-of-warranty actions brought by individual claimants in a class action filed against Toyota on behalf of California consumers seeking economic damages. These warranty cases would involve modest damages, compared to a personal injury or wrongful death case, but like the district attorney’s case would address an alleged brake override defect and Toyota’s conduct, they wrote. Toyota attorney Anne Hanna, a partner in the San Jose, Calif., office of Bowman and Brooke, criticized the warranty cases, about two of which Toyota’s legal team wasn’t even aware. Toyota’s lawyers have argued that the warranty cases would not be appropriate bellwethers because they are essentially “lemon law” disputes limited to individual incidents and don’t address whether Toyota’s cars suffered an underlying defect. Vince Galvin, managing partner of the Bowman and Brooke’s San Jose, Calif., office, took aim at the appropriateness of the district attorney’s case, which involves claims associated with 29 models of cars. “If the plaintiffs are putting forth a case that implicates all those vehicles, then discovery’s going to have to be done on all those vehicles,” he said. “That’s not a do-able situation.” A personal injury or wrongful death case would more clearly define whether Toyota vehicles had a defect that caused sudden acceleration, he said. In their proposed trial plan, Toyota’s lawyers suggested that both sides each select three personal injury or wrongful death cases as potential bellwethers. “Toyota believes the initial bellwethers should address Plaintiffs’ central allegations of an unnamed, unproven defect in Toyota vehicles, as every single claim in the JCCP rests upon this pivotal technical issues,” Toyota spokeswoman Celeste Migliore said in a prepared statement (the acronym referring to the fact that the cases have been coordinated in California’s version of an MDL, a Judicial Council Coordinated Proceeding.) “A decision by a jury on this core claim and the related causation issues will greatly speed these proceedings.” While not issuing a definitive ruling, Mohr indicated he was inclined to allow Rackauckas’ case to go forward as a bellwether that would run “in the background” as a bench trial, while juries would issue advisory opinions and decide the other bellwether trials along the way. Such a plan, he said, could mean that he wouldn’t issue a final ruling in the district attorney’s case until long after jury verdicts in the other bellwether trials. He asked both sides to file briefs regarding what type of cases should go to trial first before juries. Both sides were due back in court on Nov. 1. In the federal MDL, plaintiffs’ attorneys had selected as the first bellwether a case filed on behalf of two passengers who were killed and two others who were injured, when their 2008 Camry allegedly accelerated and crashed into a wall on an exit ramp off Interstate 80 in northwestern Utah. 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. Selna issued a tentative ruling on Sept. 12 against Toyota, which had moved to dismiss the case from federal court on the ground that it did not meet the jurisdictional threshold of alleging $50,000 or more in damages under the U.S. Magnuson-Moss Consumer Warranty Act. For one thing, Toyota’s lawyers argued, the vehicle at issue sold brand new for $21,000 and had 45,730 miles on it. During a hearing that followed his tentative order, Selna appeared to equivocate, in part because plaintiffs’ and defense counsel disagreed about whether the Utah dealership that serviced the vehicle should be part of the case. He urged plaintiffs’ attorneys to select another case for the first bellwether trial. In his final ruling, Selna concluded that the case did not meet the jurisdictional threshold and dismissed it from federal court. He disagreed with plaintiffs’ attorneys that punitive damages, under Utah law, could be included in the $50,000 calculation. “We are pleased this jurisdictional issue has been resolved and that the Court agrees with Toyota that the proper forum for this case is Utah state court,” Migliore said in a prepared statement. Amanda Bronstad can be contacted at [email protected].

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