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Elwood Kaplan of Naples, Fla., lost his left arm in a car crash in November 1998. Kaplan, then 74, blamed his injury on the driver’s side airbag in his brand-new 1999 Mercedes-Benz S400 that failed to deploy. Kaplan received a $1.8 million settlement from his insurance company and the insurer of the driver of the SUV that hit him. All he asked DaimlerChrysler, maker of Mercedes-Benz, was for the German automaker to replace his car with a new automobile. But DaimlerChrysler refused, offering Kaplan only $100. That turned out to be a very costly mistake. In late March, a federal jury found DaimlerChrysler liable for manufacturing a defective side airbag and awarded Kaplan and his wife, Norma, $2.25 million in damages. According to attorneys on both sides, this is the first time that a Mercedes car has been hit with a verdict in this country for a defective side airbag. According to Kaplan’s attorney, David Bianchi, this is the first side airbag verdict against any automaker. Bianchi, a partner at Stewart Tilghman Fox & Bianchi in Miami, filed the lawsuit on Oct. 6, 1999, in U.S. District Court in Fort Myers, alleging that DaimlerChrysler negligently designed and manufactured the airbag system. Mercedes says it will appeal the verdict. “We are fully confident the vehicle performed the way it was supposed to and we think this will be recognized on appeal,” says Donna Boland, a spokesperson for Mercedes-Benz USA. “We are confident we will be successful.” She declined further comment. The case is also notable because U.S. District Judge Kevin Thomas Duffy, who presided over the trial, slapped defense attorney Myron Shapiro, managing partner at Herzfeld & Rubin in Miami, with a $7,931 fine for violating Rule 11 of the Federal Rules of Civil Procedure. Duffy found that some of 19 motions filed by Shapiro just days before trial were “at best borderline” and that others were “undoubtedly filed either for the illegitimate purpose of harassing opposing counsel and the court on the eve of trial or to generate additional fees from their deep-pocketed client.” Duffy, a federal judge in Manhattan who presided over the criminal trials stemming from the 1993 World Trade Center bombing, was assigned to the case as often happens when dockets in particular jurisdictions become overloaded. Appointed to the bench in 1972, Duffy has been described as a “colorful, almost folksy, authoritarian.” In addition to the World Trade Center bombing cases, Duffy has been assigned the future trials in the 1998 embassy bombings in East Africa. Because he has presided over so many trials involving terrorists, Duffy is under 24-hour federal protection. According to Bianchi, even in the secure federal courtroom in Naples, Duffy was accompanied by bodyguards. “Given how hard the case was defended and how difficult they tried to make things, this victory is particularly sweet,” Bianchi says. He adds that the case was a pitched legal battle from the beginning, featuring nearly 2 1/2 years of fighting about discovery. “Firms that defend auto manufacturers engage in the most unpleasant and obnoxious behavior,” he says. “This was no different.” The biggest discovery fight was over the so-called “black-box” data recorder in Kaplan’s car. According to Bianchi, the data recorder contained both the pre-programmed deployment thresholds for the airbags and a recording of the forces experienced by the Mercedes in the crash. But Mercedes argued it was unable to download the information from the data recorder. Following a court order, the carmaker responded that the data recorder’s manufacturer, the Germany-based company Roger Bausch, GmbH, refused to provide the information. As it happened, says Bianchi, the information on the data recorder was never revealed. “Mercedes took an absurd position by saying it could not access the information,” says Bianchi. “The jury didn’t believe it, and I don’t think the judge believed it either.” Whether the judge did or not, Duffy was undoubtedly unhappy when Mercedes filed 19 motions just days before trial. In the order sanctioning Shapiro a day after the verdict, the veteran judge chastised the defense attorney for excessive motions. “Attempting to bury your opponent in paper and to increase the amount you can charge your client by making borderline and frivolous motions is precisely the sort of conduct that violates both the letter and spirit of Rule 11,” Duffy wrote. “[B]ecause defense counsel expended a great deal of its clients’ money making these unnecessary motions, an appropriate sanction is a fine equal to twice the amount client paid for these unnecessary services.” The case dates back to a clear November night in 1998 when Elwood and Norma Kaplan, retirees from Dayton, Ohio, were southbound on U.S. 41 in Naples in their Mercedes, with Elwood behind the wheel. Delwin J. Wohlgemuth ran a red light in his 1998 Dodge Durango and struck the Mercedes on the driver’s side door. Both the driver-side and passenger-side doors were crushed and the windows shattered. According to Scott Delboccio, a Naples dentist who was driving behind the Kaplans, both cars spun 360 degrees after the crash. Delboccio pulled over and ran to Kaplan’s car where he found the elderly man bleeding profusely from his almost severed arm. Norma Kaplan was unharmed in the accident. “His arm was laying on the ground and nearly torn off,” recalls Delboccio. Using his bare hands, the dentist compressed the area of bleeding and was able to stop the bleeding. Delboccio held on for 10 minutes until paramedics arrived; Kaplan was airlifted to a nearby hospital. “Scott Delboccio saved Mr. Kaplan’s life,” Bianchi says. Following the horrific accident, Kaplan, whose arm could not be saved, filed suit in the 11th Judicial Circuit in Naples against Wohlgemuth; Bianchi represented Kaplan. After the first day of trial, on Sept. 1, 1999, the parties settled for $1.8 million. Kaplan and Bianchi then turned their attention to DaimlerChrysler. Kaplan asked the automaker to replace his car. When he was rebuffed, Kaplan responded by filing suit against DaimlerChrysler in federal court in October 1999. Bianchi says he filed in federal court because he anticipated a state lawsuit would quickly be removed by the defendant to federal court under diversity. After the contentious discovery process, the trial opened on March 15. During the eight-day trial, Bianchi says, DaimlerChrysler’s attorney, Shapiro, presented two main defenses. First, he argued that the side airbag was not supposed to deploy in a crash at that speed and angle. Second, he contended that even if the side airbag had deployed, it was not designed to protect the driver’s arm. To counter the first argument, in an interrogatory Bianchi asked DaimlerChrysler how much force is necessary to deploy the airbag. He particularly wanted to know how fast a car would have to be going to trigger the airbag when it struck the side of a Mercedes. The automaker responded that the impacting car needed to be going 18.6 mph or faster. Wohlgemuth testified that he was driving between 20 and 30 mph when he collided with Kaplan’s car. Bianchi’s crash expert corroborated that the Durango had to be going faster than 18.6 mph. Bianchi also presented a DaimlerChrysler company photo of a test crash in which a Mercedes was struck by another vehicle going 18.6 mph. He compared that photo with a photo of Kaplan’s car to demonstrate that the Durango had to be going considerably faster than the test crash car, because Kaplan’s car suffered far worse damage than the impacted car in the test. “The photo of Mr. Kaplan’s car was the most compelling piece of evidence,” Bianchi says. Bianchi also had Kaplan’s crushed vehicle transported to a parking lot near the federal courthouse in Fort Myers so the jury could inspect the damage. To counter the automaker’s second defense, Bianchi again turned to the company’s own documents. He showed the jury a Mercedes service manual that included a drawing of an airbag deployment, along with a company video of an airbag deploying. “The video showed that the airbag protects up to the chin of the driver,” Bianchi says. In addition, he notes, the drawing in the manual showed that the driver’s and passenger’s arm on the door side should be protected by the side airbag. After deliberating for five hours, the nine-person jury agreed with Bianchi. The jurors awarded Kaplan $1.5 million for bodily injury, pain and suffering, disability and mental anguish. In addition, they awarded Kaplan’s wife $750,000 for loss of her husband’s services, comfort, society and attention. The following Friday, Kaplan took out a $7,000 full-page ad in the Fort Myers News-Press thanking the jury and attorneys, declaring: “Although I have lost my arm as a result of the defect, I have not lost my faith in the jury system.”

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