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ATTORNEY: Lawrence A. Sutter FIRM: Sutter, O’Connell, Mannion & Farchione, Cleveland CASE: Roeder v. DaimlerChrysler Corp., No. 303825 (Cuyahoga Co., Ohio, Ct. C.P.) Products liability defense attorney Lawrence A. Sutter is a proponent of the hands-on school of litigation. When defending an auto products action, for instance, he’s on-site, if possible, at the first inspection of the car. When the company’s engineers or experts run crash tests, he’s there supervising. “I always want to be there,” he says. “If you’re going to try the case you have to be involved so you understand. There might be something wrong about the test, so you can correct it right there.” When he was hired to represent DaimlerChrysler Corp. in a lawsuit arising out of an accident that left a man quadriplegic, Sutter, who was the same height as the plaintiff, climbed into the car to determine the plausibility of the plaintiff’s claims. The plaintiff, Marc Roeder, contended that slack in the shoulder portion of the seat belt allowed Roeder’s head to hit the car’s A-pillar. “I wanted to sit where the plaintiff sat and see if this was really possible.” As a result of this tangible inspection, Sutter says, “I didn’t think he could reach the A-pillar, and I reached the conclusion that Roeder hadn’t been wearing a seat belt.” That theory, backed by crash tests Sutter supervised, ultimately prevailed, as a Cleveland jury in March found no defects in the car’s seat belt system. The defense win was one of a series of recent stunning victories in high-profile jury trials for Sutter. In September 2001, for instance, he secured a defense win for Chrysler in Tennessee in a seat belt case where the plaintiff was a 4-year-old ventilator-dependent quadriplegic and the co-defendant was hit with a $44 million verdict. During his career, Sutter has tried 52 cases in eight states. Most of these have had massive exposure. He has lost seven of the trials; the worst hit was for $3.2 million. Sutter only handles lawsuits involving catastrophic injuries or death. In his most recent big win, the Roeder lawsuit against Chrysler, the injuries were typically severe. In 1995, Roeder, then 37, was driving a 1988 Dodge 600 midsize sedan through an intersection in Cleveland when another driver turned left in front of him. Roeder, who had been going about 25 mph, slammed on the brakes but smashed into the side of the other car. Roeder’s head hit the A-pillar of the Dodge — the post between the windshield and the driver’s-side window — rendering him quadriplegic. Roeder sued DaimlerChrysler, maker of the Dodge, charging defects in the design of the seat belt system. The shoulder harness portion of the system included a comfort feature, called a tension reliever, which allowed the wearer to pull the belt for more slack. The plaintiff contended that there was so much slack in the belt it was rendered ineffective and thus failed to restrain Roeder’s head from hitting the pillar. Chrysler contended there was no failure of the belt system, but that Roeder’s head hit the pillar because he was not wearing a belt at all. Because of the design of the belt, Sutter says, “you can tell whether or not it has been used.” The D-ring, the part of the belt at the top of the shoulder harness, is coated with plastic. “When wearing your belt, the belt burns into the D-ring and leaves an imprint.” There are also marks left in the belt itself and the latch plate, the part where the belt buckles. In investigating the belts on the Dodge, he says, the marks were not consistent with the claims. The belts showed wear, but not the marks that should have been caused by use of the belt in an accident. The defense resolved to run crash tests, using dummies the same height as Roeder, to prove what markings should have occurred if Roeder was wearing a belt. In the tests, Sutter says, not only were the markings completely different, but “we ran the crash at the same speed and the same angle of impact and the dummy did not hit the A-pillar.” There were some complications for the defense. Chrysler had abandoned this comfort feature in its seat belt systems, and it was generally agreed that a belt that allowed its wearer to adjust the slack dramatically was inadequate. There was evidence and testimony that Roeder was wearing his seat belt. And the sympathy factor was significant. On the first point, Sutter put the comfort feature into context. It had been placed in belts in an effort to encourage seat belt use in the United States. Roeder claimed he was wearing his seat belt, and this claim was supported by the emergency medical technician who treated Roeder. Sutter cited several other records indicating that Roeder was not restrained, Sutter says, “but the judge agreed to let in the record that he was belted and excluded all our evidence that he wasn’t.” Sutter was able to muddy this with the testimony of a police officer who was on the scene and said he didn’t see Roeder buckled up and by questioning the medical worker, who agreed he didn’t remember if Roeder had been wearing his seat belt but that he just wrote down what Roeder said. But the belts themselves would prove the defense point, he says. Chrysler brought into the courtroom the seat belts in the Dodge, along with belts used in the crash tests, and allowed the jurors to handle the evidence. Sutter began dealing with the sympathy factor in voir dire. “You introduce the issue at the beginning, tell them, ‘We’re very sorry he’s in this condition.’ You talk about the magnitude of the injury early and often, because the jury won’t ignore it.” He also introduced the issue of seat belt use in voir dire. He asked if they understood the risk of not using seat belts and if they made their children wear them. By this questioning, he is getting the jury to focus on his primary claim and he is attempting to get the jurors to acknowledge that not wearing a seat belt is foolish and dangerous. As in most products liability cases, the trial turned on the experts. The plaintiff’s primary expert was Steven Meyer, who testified on the amount of slack in the belt and why and how it led to Roeder’s collision with the A-pillar. After Chrysler had conducted its tests, it had sent the data to the plaintiff’s attorneys. “They ran their own tests and Meyer changed his opinion on the angles and speeds. He didn’t change it greatly,” Sutter says. But Sutter determined to exploit this in the cross of Meyer at trial. First, however, he set up a conflict between Meyer and Roeder, eliciting a debate on how much slack was in the belt just before the accident. Roeder had testified there was “a little bit” of slack, but not enough to be unsafe. Meyer said a little bit was 3 to 5 inches of slack, fitting into his estimates. As Sutter questioned Meyer, he went to a cutaway version of the Dodge that was in the courtroom and climbed in himself. He put the seat belt on, then leaned over to touch the radio, to show how much slack would be created by normal movement. Only 1 1/2 inches of slack were introduced. Then Sutter pulled the belt and showed what it looked like with 5 inches of slack. He then confronted the witness with the plaintiff’s original estimates that the slack was up to 8 inches, but had changed the estimates after Chrysler sent the plaintiff its test using a similar amount. He then brought up several other changes the expert had made in estimates, after seeing the tests. Chrysler’s own experts fared considerably better. The key witness for the defense was Michael Klima, a former auto company engineer who had conducted the tests on the belts. Klima testified that Roeder could not have been wearing his seat belt on the day of the accident. Although the plaintiff’s damages demand was substantial, Sutter did not try to contest the damages at trial. “It takes away from your credibility. It’s hard to argue, ‘I don’t owe it, but if I do, I don’t owe that much,’” he says. A Cleveland jury found no defects and no liability. There was no appeal. Prior to the end of trial, the parties had entered into a high-low agreement; the case settled immediately after verdict for the lower, confidential amount. TRIAL TIPS � Be on-site when experts run their tests. � Don’t ignore the magnitude of an injury. � Don’t contest on damages, win on liability.

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