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Michael Danko doesn’t like SUV rollover suits. The injuries, he says, are often sadly devastating, the clients physically and emotionally crushed. But O’Reilly Collins & Danko has settled about 20 such cases since 1999. Rollover suits now account for about half the firm’s annual revenue. And that figure could grow. The firm is pursuing 15 more cases, including one set for trial next month in San Mateo County. Since O’Reilly Collins began handling SUV rollovers in 1999, the San Mateo firm has doubled in size from four to eight lawyers. “The firm could not have sustained the growth it did if it did not have the SUV litigation,” Danko said. Christine Spagnoli, who specializes in such cases for Santa Monica’s Greene, Broillet, Panish & Wheeler, says her firm has also profited from rollover litigation. “We’ve become more and more concentrated in doing these kinds of cases,” said Spagnoli, whose firm has brought about 50 SUV suits since 1999. Rollover cases are no free ride. They require six-figure funding for experts and a keen eye for spotting victims sympathetic enough to keep the focus on the truck’s alleged malfunctions rather than their own. Automakers vigorously defend the cases and do their best to scare plaintiff attorneys away. But for attorneys that can navigate the obstacles, SUV rollover cases have become a reliable vehicle for growth. HEFTY DOWN PAYMENT Like many other plaintiff lawyers, Danko began aggressively pursuing SUV litigation in 2000, when Ford Motor Co. and Bridgestone/Firestone Inc. bared themselves to extensive litigation by publicly blaming one another for a series of violent rollovers. “There was just an explosion of people’s awareness because of how many Ford Explorer rollovers there were with Firestone,” said Spagnoli, whose firm has filed about 50 such cases since 1999. That explosion triggered a blast of quick settlements from Ford in cases that involved tire failure. But for plaintiff attorneys, the good times passed quickly as Ford began aggressively defending itself. “Plaintiffs’ attorneys were spoiled,” said Warren Platt, a partner in Snell & Wilmer’s Phoenix office who defends Ford in rollover cases. “They thought if they filed, someone would just bring the money truck.” Plaintiff attorneys looking for easy money moved on to other targets. Those that remained learned that bringing an SUV rollover case now requires a money truck of its own. “These are very expensive cases to bring and defend, and in fact, good plaintiff lawyers will outspend the defense lawyers,” said Vincent Galvin Jr., who has defended nearly every major SUV maker from his San Jose office at Bowman and Brooke. “The plaintiff experts have them over a barrel.” Each SUV rollover case requires a mind-numbing array of experts on everything from tire construction to metallurgy. In one pending SUV case, Danko has retained nine expert witnesses who charge between $250 and $700 an hour. Each one, he said, could end up spending hundreds of hours on the case. “The actual costs are certainly above $600,000 to do a full workup, and about $1.5 million in attorney time,” said Dennis Schoville, a San Diego lawyer who in June won a $386 million trial judgment against Ford for a rollover victim. Schoville said that an unsuccessful case can be financially devastating for a small plaintiff outfit. But without the investment, lawyers say, automakers will rarely settle. O’Reilly says his firm’s financial nerve has been a big part of its success. “[Automakers] know we’re crazy enough to try the case, whereas most lawyers are afraid to spend $500,000 to take it to a jury,” he said. pick the cherries While investment is vital, the key to winning a rollover argument, plaintiff and defense lawyers agree, is selecting the right case. For plaintiffs, this means finding sympathetic clients whose injuries cannot easily be blamed on driver error or poor road conditions. For the defense, it amounts to fighting every case even up until the day of trial but quietly settling most of them — forcing only the weakest through the courthouse door. “Just like the plaintiff lawyers are cherry-picking the good cases, they’re cherry-picking the bad cases to go to trial,” said Spagnoli. “They’ve purposely gone out to build up a string of verdicts to discourage the plaintiff attorneys.” (Ford had won 13 consecutive victories in trial court until this summer, when the $386 million San Diego plaintiff verdict snapped that streak. Two of the trial cases have also been overturned on appeal.) An eye for the ripe cherries, Spagnoli said, has made her firm one of California’s most prominent SUV litigation outfits. She turns away many more rollover cases than she takes, she said, frequently because a victim does not appear sufficiently sympathetic. “Case selection is probably the key,” said Spagnoli. “I look for cases where the passengers are seatbelted. I look for cases where there is no drinking or drugs, and no egregious driver error, such as falling asleep.” Spagnoli points to the case of Jodie Schloss, a college student whose Geo Tracker rolled over with no apparent driver error, rendering her a spastic quadriplegic. “She had been on this television program just before the accident, and was so articulate and so beautiful,” Spagnoli said. “To have this videotape from before the accident, and then to see this physically challenged person” made the case extremely difficult to defend. It settled in 2001 on the weekend before jury selection was set to begin. The cases that do end up in trial are often those where driving mistakes caused a rollover whose injuries, the plaintiff lawyers argue, should have been prevented by better engineering. “The cases that they’re defensing are cases generally where they’re able to refocus the jury on something negative about the plaintiff,” said Michael Kelly, a partner at Walkup, Melodia, Kelly, Wecht & Schoenberger who has settled several SUV cases. Defense lawyer Galvin said his trial arguments usually center on the issue of driver fault. “Generally speaking, the plaintiffs want to ignore the facts of the case and put the manufacturer on trial,” he said. “But cars don’t get into accidents themselves. People drive cars.” GROWTH INDUSTRY While all SUV makers have been hit with rollover suits, Ford has been the main target both because the Explorer is the country’s most popular SUV and because of the high awareness of the Firestone settlements. “Every time there is a significant accident involving that vehicle, there is a lawsuit filed,” said Daniel Rodman, a defense lawyer in Snell & Wilmer’s Irvine office. Danko argues that problems specific to the Ford Explorer and its predecessor, the Bronco II, make it particularly susceptible to rollover and roof crush. His firm’s managing partner, Terry O’Reilly, explains, “They took a pickup truck frame � and they slapped a body on it, so your center of gravity is up toward the chest of the driver.” Ford spokeswoman Kathleen Vokes attributes the ongoing rollover litigation simply to “an increasingly litigious society,” rather than anything having to do with Ford vehicles. “So much litigation is frivolous,” said Vokes, who declined to say how many cases Ford has settled. On this much, defense and plaintiff lawyers agree: SUV rollover litigation shows no signs of stopping. In fact, it’s likely to increase, with Ford the leading target, as the number of Explorers on the road continues to grow. Plaintiff attorneys have taken heart from Schoville’s $386 million verdict — the case that snapped Ford’s 13 trial winning streak. Also, on Oct. 21, the Ninth Circuit U.S. Court of Appeals reversed a Washington appeal court’s decision in Jaramillo v. Ford Motor Company, 03-35326, that had ruled against a family injured in an Explorer rollover. Though the opinion was unpublished, plaintiff attorneys were encouraged to see that it removed a key weapon for defense lawyers by noting that Ford’s statistics on Explorer safety in relation to other cars should not have been admitted. Even while the courts remain open to traditional SUV rollover claims, plaintiff attorneys have begun to test drive new legal models. Next month, Danko goes to trial in a rollover/defective tire case that says consumers should be warned that tires have an increasing risk of failure as they age. Lieff Cabraser Heimann & Bernstein is preparing for a Dec. 3 class certification hearing in Sacramento County Superior Court in a consumer claim that Ford should have notified customers of the Explorer’s rollover risk. And Spagnoli said she expects to bring more rollover cases involving 15-passenger vans. The Ford and Chrysler vehicles roll over easily, she says, and often contain large groups of sympathetic victims like “school sports teams, Boy Scouts and Marines.”

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