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Attorney: Brian J. Panish, 43 Firm: Santa Monica, Calif.’s Greene, Broillet, Taylor, Wheeler & Panish Case: Lampe v. Continental AG, BC 3131 (Super. Ct., Los Angeles) Winning Points: � Shoot down defense contentions early. � Call independent witness first. � Use extensive demonstratives. � Don’t use the client to elicit damages. Use testimony of others. In any trial, a plaintiffs’ attorney has to take on the primary defense contentions in the case-in-chief, says Brian Panish. “The plaintiff has the burden of proof, so you have to tell the jury what the defense will say, then totally destroy it before they can put it in.” In this year’s big-money products liability action against Continental General Tire, involving a tire blowout, the defense claimed that the tire was not defective and that it failed because of some localized trauma several hundred miles before the accident. Panish took on this defense immediately in opening statement, calling it “the phantom impact” defense. Because he ridiculed the defense contention, he says, “by the time they put on, it was going nowhere.” The jury wound up awarding his clients $55 million. This was the latest in a series of substantial courtroom victories for the attorney. In 1999, Panish won one of the largest jury verdicts ever — $4.9 billion against General Motors Corp. in an auto products action. Overall, he has had 17 verdicts of more than $1 million, eight of which were in excess of $10 million. He’s also had dozens of multimillion-dollar settlements. TREAD SEPARATION In the General Tire case, Panish represented Cynthia Lampe, 28, who was injured in a June 1996 accident. Lampe was driving a 1993 Ford Taurus near San Bernardino, Calif., when “the left rear tire tread separated and came flying off the tire, causing her to lose control of the car,” says Panish. The Taurus flipped over and Lampe was rendered quadriplegic; her mother, Sylvia Cortez, was also injured in the accident. Lampe and her parents sued Continental, maker of the AmeriTech ST tire on the Taurus, contending defects in the design and manufacture of the tire. The tire on the Taurus was manufactured at General Tire’s Mount Vernon, Ill., plant, says Panish. The plaintiffs claimed that during the manufacturing process at the plant, management routinely and “intentionally swept up the floor and put the waste back into the rubber mix.” This contaminated the tires and led to the separation, he says. The plaintiffs also contended that “the insulation strips on the tires were not thick enough” and that General Tire “didn’t use belt wraps to prevent tread separation.” Panish says that he began this highly technical case as he always does, by establishing a simple theme in the opening statement: “that this tire should not have failed,” he says. “You should be able to expect to drive a car and your tires won’t fail until you run over something.” The defense, he says, “tried to hammer home that these tires had 48,000 miles on them.” The plaintiffs countered that the number of miles was not the proper standard; the tread depth was key. “Only 27 percent of the tread had been used,” says Panish. The tire failed because “General Tire’s manufacturing practices led to contamination of the tires.” Panish used extensive visuals and physical exhibits. “We brought in the tire and tread itself.” He had an expert — who used a 600-power microscope hooked up to a projector — take digital photographs of the tire “so the jury could see the contaminant.” The plaintiffs brought in tires with alternative designs and videos of testings of the Taurus. “We also brought in visuals of the spinal cord, to show her injury.” But he did not reserve his exhibits for the jury alone. For each motion in limine, “I prepared a separate PowerPpoint presentation on why evidence should be admitted.” This reliance on demonstrative evidence is a basic part of his trial presentation. “It’s harder to persuade someone of an esoteric concept without something you can hold or see.” Panish’s first witness in his case-in-chief was a highway patrol officer who had been at the scene of the accident. In the trial against General Motors, he notes, he started the same way. “I like to put them on if I can,” he says. “They’re independent. They have a position of authority, which means they’ll draw respect.” Also, he says, “police officers are experienced witnesses, so they won’t be too nervous on the stand.” Through the police officer, Panish not only established how the accident happened, but elicited support for the plaintiffs’ point that the depth of the tread on the tires should not have precipitated a blowout. During his case, he called representatives from the defense, including the Mount Vernon plant safety manager, Craig Stowers. “I try to call everyone I can from the defense,” he says. His intention is to “get them on cross,” before defense counsel can present the defense and witness in the best possible light. Before examining Stowers, he says, he had read through thousands of pages of testimony, documents and depositions. He relentlessly attacked on direct, bombarding Stowers with excerpts from his own depositions in other cases involving General Tire products and in previous depositions or in-court testimony in Lampe. He confronted Stowers with statements from other workers at the Mount Vernon plant, who talked about how lax the quality-assurance process was and how the cleanup crew routinely dumped wastes into the rubber mix. On direct, Panish had the witness confirming that few of the tires built at the plant were inspected. On redirect, Panish had the witness backtracking on several statements he had made and had him admit that before Lampe, he was unaware of claims that the plant’s janitorial service was putting swept-up waste back into the material used to build the tires. Panish pursued these points with the defendant’s chief expert on tires, Ed Morant. Morant, a former General Tire worker, said the tires were not contaminated. He testified that the polypropylene found in the tire after the accident could not have come in during the manufacturing process because there was no polypropylene in the plant. BLOWING IN THE WIND He suggested the residue in the Taurus tire may have been blown there by the wind. Panish confronted him with Stowers’ testimony that polypropylene was in the plant. But first, Panish had locked in the witness, by getting him to agree that tread separations can result in loss of control of a vehicle and that discarded materials mixed into the rubber would affect the adhesion of the rubber on the tires. The most poignant and compelling moment of the trial came when Lampe appeared. She was only in court when she testified. Her injury made it difficult for her to be there, Panish says. Seeing her once also had a stronger impact. His examination of Lampe was brief, lasting no more than 45 minutes. He showed pictures of Lampe before the accident to contrast with the way she is now. “She was very attractive, slender,” he says. As a result of the accident, “she has gained a ton of weight. She looks nothing like she used to.” Since the accident, Lampe requires full-time attendant care and has only minimal use of her arms and hands. On April 13, a Los Angeles jury ordered Continental General Tire to pay the plaintiffs $55.32 million, including $49.85 million to Lampe. The jury found defects in the manufacture of the AmeriTech, but no design flaws. The defendant’s post-trial motions were denied.

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