Katheryn Hayes Tucker writes for affiliated publication The Daily Report.
A Cobb County State Court judge should have allowed two lawyers for Ford Motor Co. to defend themselves before she threw them out of a wrongful death trial involving a Ford Explorer, the Georgia Court of Appeals has ruled.
The underlying trial ended two years ago in a confidential settlement after Judge Kathryn Tanksley disqualified Ford's lead lawyers for failing to disclose that their client carried insurance to cover a possible verdict.
Though the case had ended, the Ford lawyers, D. Alan Thomas and Paul F. Malek of Huie, Fernambucq & Stewart in Birmingham, Ala., appealed, arguing that their summary dismissal could hurt their careers. They have represented Ford around the country, particularly in litigation involving the Ford Explorer.
"We agree with Thomas and Malek that they were entitled to notice and an opportunity to be heard before the trial court revoked their admissions," wrote Appeals Court Judge Christopher McFadden in a June 20 decision with Presiding Judge Anne Barnes and Judge William Ray II concurring.
The panel remanded the case to Cobb State Court "to allow the attorneys such due process," McFadden wrote. Consequently, we do not address the attorneys' argument that the evidence was insufficient to support the revocations."
Former Georgia Attorney General Michael Bowers of Balch & Bingham, who represented Thomas and Malek in the appeal, said, "We are extremely pleased." The appellants' team also included: Christopher Anulewicz of Balch & Bingham; J. Matthew Maguire Jr. of Parks Chesin & Walbert, formerly of Balch & Bingham; R. Page Powell Jr., Michael Boorman and Audrey Berland of Huff, Powell & Bailey; and Richard Brown and Gene Major of Fain, Major & Brennan.
J. Antonio DelCampo, one of the lawyers for the family of a 15-year-old boy who died in an Explorer rollover crash, described the situation surrounding the appeal as "quirky" and "bizarre."
"We were in an awkward position," DelCampo said. "We didn't have a dog in the fight."
He said his side filed a brief at the direction of the court of appeals to answer the Ford lawyers.
"Our position was that the court no longer had jurisdiction because the case had been settled," DelCampo said.
Harris Penn Lowry also argued that Thomas and Malek were not parties to the case and that they had been heard when they told the judge they didn't intentionally mislead the court but were caught in a misunderstanding with their client, Ford, over the insurance coverage issue.
DelCampo worked on the case with Stephen Lowry and Jed Manton of Harris Penn Lowry; DelCampo recently left that firm to start a new firm, DelCampo, Weber & Grayson. Harris Penn Lowry and DelCampo represented the family of Donald Young III, known as "Deebs," who was killed in a Ford Explorer rollover crash. They alleged at the trial that Deebs was killed because his seatbelt malfunctioned by locking on the rollover and cutting his body nearly in half. Ford disputed the claim.
The Appeals Court agreed with Thomas and Malek that their appeal was not moot and that they had standing to appeal, even though they're not parties to the case.
"The trial court's order made specific findings that the attorneys had violated the Georgia Rules of Professional Conduct. These findings may have continuing, adverse collateral consequences for the attorneys' careers," the court's decision stated.
"We thus conclude that because this order bears directly upon the attorneys' interests, they are directly aggrieved by the decision." The decision said lawyers "have standing to appeal orders that directly aggrieve them."
The court vacated Tanksley's order revoking Thomas and Malek's admission to practice as trial counsel pro hac vice in the Young case. The court also said Tanksley "properly considered the Georgia Rules of Professional Conduct," which Thomas and Malek argued should not apply to out-of-state lawyers.
The fireworks resulted from a disclosure about Ford's insurance coverage that led to a mistrial. During discovery and pretrial motion hearings, the plaintiffs' counsel asked repeatedly for Ford to name any insurance carriers that could be relevant to the case. Georgia law requires relevant companies to a case to be listed in the pretrial order so that potential jurors can be screened for any conflicts of interest.
Ford's lawyers responded repeatedly with the company's standard answer, implying the company was self-insured: "Ford has sufficient resources to satisfy any judgment that reasonably could be expected."
But on the morning after the first full day of jury selection, Ford's lawyers announced in court that they had just learned by email from the general counsel's office that Ford had insurance coverage for verdicts in excess of $25 million. Six policies of excess coverage could be at play, the court of appeals decision said, adding that "significantly more" were identified later.
"Thomas said that he had not intentionally misled the court," the decision said. "He explained that he learned by e-mail that morning of the insurance, and that he then promptly advised plaintiffs' counsel and the court."
Tanksley seemed to take a skeptical view of that explanation, calling it "almost insulting." She declared a mistrial, scrapped the jury and ordered a new one, dismissed Thomas and Malek and sanctioned Ford by precluding its defense on one issue—failure to warn of a product defect. In a daylong hearing over the sanction for Ford, an in-house lawyer testified by video that she had at first misunderstood the question from the lawyers about the insurance coverage, then corrected the misinformation just before the drama in court.
It was DelCampo, in his first trial after stepping down as a DeKalb County State Court judge, who suggested to Tanksley that she should revoke Thomas and Malek's pro hac admission.
Asked about the decision this week, DelCampo said he "felt strongly enough" about it at the time and didn't think the judge erred. He added, "I'm not trying to have their careers ruined."
Whatever Thomas and Malek have to say about their disclosures of Ford's insurance coverage could be relevant to other cases. The same issue that led Tanksley to revoke their admissions has also resulted in new trials ordered in at least three other cases that Ford won the first time.