A contentious, three-week battle over claims that a faulty Ford Motor Co. pickup truck roof was to blame for the death of a South Georgia farm couple has ended in a mistrial.
Gwinnett County State Court Judge Shawn Bratton declared the mistrial Friday morning after lawyers on both sides said their case had been damaged beyond repair.
“I have determined that in the interest of justice, this case can no longer proceed,” Bratton told the jury. He thanked the jurors for their “long and tireless” service. “Three weeks is a lot to ask of you,” he said.
Then Bratton dismissed them, telling them they were free to talk about the case with friends, family and the lawyers there, if they wanted. “You also have the unfettered right to get into your car and go wherever you please,” he said.
The real drama, which the jury never heard about, came from whose motion he granted—Kim and Adam Hill’s—and whose he denied—Ford’s. The judge had spent the night mulling over dueling mistrial motions tendered by lawyers on both sides the day before. Bratton stopped the trial Thursday and sent the jury home after lunch. But first he issued instructions to disregard the testimony of Ford expert Dr. Thomas McNish, who had been on the stand for two days. The reason the judge gave: Ford lawyers had “willfully violated” orders about areas McNish was not qualified to discuss. The judge had ruled, over Ford’s protest, that McNish was not qualified to give his opinion on cause of death because, although he is a medical doctor, his expertise is in aerospace science, not forensic pathology.
Under direct examination by Ford lead counsel D. Alan Thomas of Huie Fernambucq & Stewart in Birmingham, Alabama, McNish had testified at length about physics, rotational speed, tangential velocity and the center of gravity in a rollover crash that killed Melvin and Voncile Hill in their F-250 Ford Super Duty pickup truck. Kim Hill and Adam Hill, the surviving sons, sued Ford, alleging their parents were killed by the truck’s roof crushing them.
The Hills’ lead counsel, Jim Butler of Butler Wooten & Peak in Columbus and Atlanta, objected repeatedly—the last time after Thomas asked McNish for his opinion about how the Hills died. McNish said the roof didn’t cause the deaths, because injuries from other parts of the truck that would have happened milliseconds earlier in the crash would have killed them first.
Butler contended that the testimony violated the judge’s orders in limine regarding which experts were qualified to give opinions on cause of death. Butler’s own expert, a medical examiner who performed the autopsies, had testified that the roof crush was the cause of death.
After the jury went home, the judge held a session with the lawyers to talk about what had happened and what to do about it. Each side asked for a mistrial as a sanction for violation of orders in limine.
Here is what was said, according to an uncertified draft transcript made by the court reporter.
Butler went first: “Now, respectfully, we appreciate the court’s instruction to the jury that all of Dr. McNish’s testimony be disregarded and stricken,” Butler said. “The problem is that that doesn’t cure the prejudice, does not cure the poison, does not unring the bell. Doubt has been sowed with these jurors and that was the object. The object of all the tackle box approach employed by Ford is to hook a juror on one thing and another juror on another thing and get a compromised verdict. I’ve been seeing it for years.”
Butler went over his earlier accusations that Ford lawyers had violated orders, including his Monday morning motion to sanction Ford by striking its entire defense for such infractions.
“The cumulative impact of them upon the plaintiffs is devastating. This jury has been poisoned,” Butler said. “It’s been poisoned by the repeated, deliberate willful violations by Ford and its lawyers and witnesses, and it has been poisoned by the constant forcing us to stand up and object. Jurors don’t like that. I’ve been practicing law 41 years. I try not to object.”
Butler gave his opponents a compliment of sorts, saying the purported strategy “just worked like a charm.”
“Defense counsel have succeeded in our estimation,” Butler said.
When Butler finished and it was Ford’s turn, the judge said, “I will hear from one attorney for the defense.”
It was Randy Evans of Dentons, who for this trial joined Thomas and the regular Ford local counsel, Mike Boorman of Huff, Powell & Baily.
“First of all, your honor, I want to thank you for giving us the time and opportunity to make a record. As you might imagine, there’s going to be a record that’s pretty heavily scrutinized,” Evans said. “I want to explain a little bit about how we got here, so the appellate courts will know and the court knows.”
Evans went on to review Ford’s objections to the judge’s ruling that McNish was not qualified to address cause of death, saying that under Georgia law he should be, because McNish is a medical doctor. Evans said the judge had applied the wrong standard.
“There was no evidence the witness was not qualified,” Evans said. “We were entitled to go there.”
Evans went on to say that, with the loss of the McNish testimony, “we believe we were prejudiced beyond repair.”
At this point, the judge asked a question: “What’s your remedy? A mistrial?”
Evans: “My remedy is a mistrial.”
Bratton: “So you are agreeing with Mr. Butler?”
Evans: “I agree with Mr. Butler.”
Bratton: “All right.”
But Evans added, “And I ask for a certificate.”
To which the judge replied, “A certificate of immediate review on the mistrial?”
“Yes,” Evans replied.
“You’re asking me for a mistrial, and you’re asking for the mistrial to be reviewed?” Bratton asked.
“Yes,” Evans replied. “It will save us time so that these things can be fixed before we retry the case.”
“You want to try this thing again in the next go-round and you want the Court of Appeals to tell me I’ve got to let him violate the order?” Bratton asked.
Later Bratton added, “My order was clear. The court does not find that he has sufficient skill or expertise to provide that opinion as to the cause of death. Just because you think you got there, doesn’t mean you were entitled to go blow right through it, which is what happened.”
But the judge told Evans he wanted to give him time to “say what you need to say,” and Evans continued.
Evans second point was this: “We cross move for a mistrial.”
The judge: “OK.”
When both sides were finished at last, Bratton said he would put his rulings in the record at 9 a.m. Friday.
An hour before court was to begin, Bratton was strolling the hallway saying good morning to the attorneys on both sides.
When the judge took the bench, he spoke briefly to the lawyers before bringing in the jury.
“Plaintiffs’ motion for mistrial is granted,” Bratton said. “As to the defense motions—for mistrial and for immediate review—both of those are denied.”
After court, Butler handed a reporter a typed statement with a handwritten note added.
The typed portion said, “Ford and I have a fundamental disagreement. I believe lawyers are bound to obey court orders; Ford does not. I believe judges have the power to enforce their orders; Ford does not.”
The handwritten addition said: “Having been found guilty of willfully violating court orders, Ford’s response was to file motions making yet more accusations against plaintiffs Kim and Adam Hill and their lawyers. Ford is out of control and believes it is above the law.”
Evans stayed behind in the courtroom packing up after the other lawyers left to try and catch the jury. He declined to be interviewed.
Later, in response to Butler’s statement, Evans said by email: “Plaintiffs’ counsel is doing everything they can to avoid the inevitable – a defense verdict. Rather than rely on the merits, they attack anyone and everyone including witnesses and potential jurors to avoid that verdict. It is sad to see such a successful attorney to drop to such lows.”
Also in response to Butler’s statement, a Ford spokesman emailed this note: “Ford takes the safety of our customers very seriously and we make safety a high priority in the design of our vehicles. While this was certainly a tragic incident and our thoughts are with the Hill family, Ford is confident that the design of the vehicle is safe. Unfortunately, this trial was conducted in a manner materially unfair to Ford that began pretrial with the wholesale exclusion of Ford’s evidence and followed by one-sided trial rulings unique to this case. Ford will be prepared to try the case again.”
The rest of the two legal teams waited outside the elevator and at the top of the second-floor escalator—where the judge had told them the jury would exit.
When the jurors came out, they surrounded the lawyers and stood chatting for some time. Both sides reported later that the jurors seemed sympathetic.
After it was all over, Ford’s lead counsel, Thomas, sent a statement by email.
“We are disappointed that the case ended in a mistrial,” Thomas said. “After talking to the jurors we are even more disappointed.”
The case is Hill v. Ford, No. 16 C 04179-2.