From The National Law Journal:
Toyota Motor Corp. has moved to strike evidence from a software expert who claims to have identified a bug in the electronic throttle control system source code that plaintiffs attorneys blame for unintended acceleration by Toyota vehicles.
Michael Barr, who specializes in embedded software programming, was deposed on July 3 as a plaintiffs expert in the first bellwether trial of hundreds of cases pending in federal court in Santa Ana, Calif. The case, scheduled to go to trial on November 5, was brought by the estate of Ida St. John, 83, who suffered back injuries after her 2005 Camry accelerated while at a stop sign.
Toyota moved on August 9 to strike Barr’s report, arguing that plaintiffs attorneys were merely attempting to improperly assert a new defect theory. Plaintiffs attorney Todd Walburg, in an August 14 response, insisted that Barr was merely supplementing his own testimony and that of another expert.
“Plaintiff’s source code experts have located the software bug in Toyota’s electronic throttle control system source code that explains why Mrs. Ida St. John’s 2005 Toyota Camry accelerated out-of-control from a stop sign,” Walburg wrote. “This software bug likely also explains the numerous other reported Unintended Acceleration incidents that have initiated at low speeds and when drivers are parking or stopped at an intersection.”
A hearing on Toyota’s motion is scheduled for Tuesday.
The bellwether case, selected by Toyota to go before a jury, alleges that St. John’s vehicle accelerated on April 15, 2009, while at a stop sign in Columbus, Ga. St. John allegedly hit the brakes, but the car sped toward an elementary school, where it crashed into the gymnasium. Her grandson, William Curtis Grasty Jr., filed an amended complaint after she died last year.
In its motion, Toyota attorney Joel Smith, managing partner of the Columbia, S.C., office of Bowman and Brooke, wrote that Barr’s report is an attempt by plaintiffs attorneys to explain how the throttle valve of St. John’s vehicle opened beyond the idle angle without admitting that she hit the accelerator pedal accidentally. Barr and other experts previously had been unable to explain the alleged software glitch, referred to for the first time last month as the “full throttle bug.”
“Plaintiff’s late submission of Barr’s new opinions in his August 2, 2013, report is yet one more change in direction for Plaintiff’s ever illusive, moving target of a defect theory,” Smith wrote. “Plaintiff cannot dress new opinions in the disguise of ‘supplemental’ disclosures by claiming that Barr’s August 2, 2013, report merely provides a name to a general concept allegedly contained in Barr’s initial report.”
He added: “The changes to Barr’s opinion are not substantially justified or harmless, especially given the highly complex nature of this litigation.”
Toyota also has filed a motion for summary judgment under seal.
Walburg, a partner at San Francisco’s Lieff Cabraser, Heimann & Bernstein, insisted that this month’s report merely supplements Barr’s initial findings, submitted on April 12, and expands on an electronic defect theory that has long been part of the case.
“This is not a new argument, and it should not be a foreign concept to Toyota,” he wrote. “As Toyota is well aware, the existence of a software defect in Mrs. St. John’s 2005 Camry will be a central issue for the jury to decide in this bellwether trial.”
Both sides have moved to strike the testimony of more than a dozen additional experts; a hearing on those motions is scheduled for September 20.
Toyota is in trial now in another bellwether case in coordinated state court litigation in California, alleging that Toyota failed to install a brake override system that would have prevented Noriko Uno’s 2006 Camry from sudden accelerating on a residential street in Upland, Calif. A Los Angeles County, Calif., Superior Court jury began hearing the case, brought by the husband and son of Uno, who died from the 2009 crash, on August 8.
Two other trials against Toyota are scheduled this year in state courts in Oklahoma and Michigan; Barr was deposed in both of them on August 2, according to court records.