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Attorney: Ronald Cabaniss, 56 Firm: Orlando, Fla.’s Cabaniss, Smith, Toole & Wiggins Case: Maier v. Ford Motor Co., 58942 (Dist. Ct., Hunt Co., Texas) Winning Points: � Confront bad publicity in voir dire. � Put on defense in plaintiff’s case. � Keep the jury focused on the accident, not the defendant. As plaintiffs’ verdicts against automobile manufacturers continue to climb, plaintiffs’ lawyers — looking to make a killing — are increasingly focusing on the defendants, rather than the incidents that precipitated the claims, says defense attorney Ronald Cabaniss. In his recent defense of Ford Motor Co. in a products case in Texas, the plaintiffs’ attorneys spent little time on the Ford Explorer rollover accident that left Nathan Maier dead and Allen Beene severely injured. In the opening statement, for instance, the lead plaintiffs’ counsel “spent maybe 45 seconds on how the accident happened,” he says. Throughout the trial, he adds, the plaintiffs’ attorneys concentrated “their time on how bad the defendant is.” “I do the contrary,” he says. “I believe you have to focus on the accident.” The jurors typically will not know much about engineering or biomechanics and may be bored or confused by the testimony of rival experts. But they can understand and want to hear how and why an accident happened. In every part of the trial, Ford’s lawyers and witnesses shifted the focus to the accident, giving an explanation for the rollover that effectively countered the plaintiffs’ claims of defects in the Explorer. At the end of trial, the Texas jury completely rejected the plaintiffs’ claims, issuing one of the most impressive products liability defense verdicts so far this year. The verdict was the latest in a series of significant defense wins for Cabaniss, who specializes in complex litigation. He has won more than 90 percent of his trials before juries. ROLLOVER The most recent Ford trial was precipitated by an accident that took place in Greenville, Texas, in April 1997. Nathan Maier was driving a 1995 Ford Explorer 4-by-4 “Eddie Bauer” when the driver of a car in the right-hand lane began moving into his lane. “When the vehicles were about one foot from each other, Maier swerved left onto the median, then overcorrected,” says Cabaniss. The Explorer flipped over and rolled three or four times. Maier was killed and Beene sustained a collapsed lung and lacerated liver. Maier’s estate and family and Beene sued Ford Motor Co., maker of the Explorer, charging that the vehicle was defectively designed. Two other passengers had also been in the Maier vehicle; one died and one sustained severe injuries. These passengers also sued Ford, but their claims were settled on confidential terms before trial. The plaintiffs contended that the Explorer was unreasonably dangerous and had a propensity to roll over in emergency avoidance maneuvers. The tires on the Ford Explorer were Firestones, although the plaintiffs made no claim against Firestone and did not allege that tire failure caused the accident. Nevertheless, the negative publicity over the Ford Explorer/Firestone tire-rollover problems was a presence in the courtroom. In voir dire, Cabaniss notes, “the first words from the plaintiffs’ attorneys were: ‘Who has heard about the Firestone tires and the Ford rollover problems?’ “ Cabaniss countered this by asking the jurors, “How many of you think this case involves a Firestone tire that caused a rollover?” Several of the jurors raised their hands. “Very quickly, we let them know that this does not involve a tire problem or a tread separation. This has the jurors raising their eyebrows because a lot of them thought it did involve tire separation. You have to do this early so that every time the jurors hear the words, ‘Firestone tires,’ they’re smiling to themselves, thinking, ‘There he goes again.’ “ Beyond rooting out prejudice, he introduced, through his questions, the defense’s point that rollovers occur because of driver error, not product defect. He asked them if they thought any car, any vehicle, could be made to roll over and if they knew that “you can’t go around corners as fast with an SUV as with a passenger vehicle,” he says. “We ask them if they believe motor vehicles should never roll over, regardless of what they’re put through, what they think of SUVs and if they recognize that they’re different from a passenger car.” In his opening, he continued to turn the focus to what Ford believed was the cause of the accident — driver error. As a defense attorney, Cabaniss does not believe in simply responding to the charges of the plaintiffs’ team. “If all you do is defend, by the time the plaintiffs rest their case, you’re dead. The court admonishes jurors not to make up their minds, but it’s counter to human behavior. We all begin to make up our minds.” Maier, according to Ford, failed to see the other driver approaching his lane, then jerked the steering wheel back and forth so forcefully that he lost control. The Explorer’s wheels dug into the road, the tire debeaded and the vehicle flipped over. There were no defects in the Explorer, he told the jury. Maier was traveling more than 70 mph at the time. Under the same circumstances, he said in his opening statement, any sport utility vehicle, pickup or van, and most passenger cars, would have rolled over. “You have to put your case in during the plaintiffs’ witnesses.” The plaintiffs called Ford designer Chuck White as the first witness. Calling a representative of the defense as an adverse witnesss in the plaintiffs’ case is a common tactic. But this time, it backfired. “It allowed us to put our entire story through him on direct.” FIGHT BACK EARLY It also gave Ford an early chance to rebut the documents introduced by the plaintiffs. During the plaintiffs’ case, their attorneys put on excerpts from a number of Ford documents, Cabaniss says. The excerpts supported the plaintiffs’ claim that the company failed to properly design and test the Explorer before sending it out on the road. In the direct examination of White, the defense began to bring out the full documents. There were two basic reasons for this, he says. “It puts the excerpt into context.” But, even if there is little else in the document, it begins to look like the plaintiffs are concealing something. “It hurts their credibility.” The attack on credibility is most pronounced, however, in the cross-examination of the plaintiffs’ experts. “You have to knock down their experts,” Cabaniss notes. His cross examination of the plaintiffs’ accident reconstruction expert, Mel Richardson, was typically relentless. Before trial, the defense team had assembled transcripts of Richardson’s testimony in trials and depositions. “We called fellow lawyers around the country.” In this case, Cabaniss says, “he suggested an alternative design to prevent this accident.” The vehicles Richardson cited were a Land Rover and the newest version of the Explorer. “It made him look like he’s some sort of knowledgable engineer.” He says, “My first words to him were: ‘You don’t know one thing about the 2002 Explorer, do you?’ In this case I was very confrontational right from the get-go.” The plaintiffs were looking for nearly $60 million in damages, including punitives. But on April 4, a Greenville jury found no defects, no negligence and no breach of implied warranty. There has been no appeal.

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