Jim Butler (left) and D. Alan Thomas

The fight continues in a high stakes Ford Motor Co. roof crush case that ended in a mistrial after lawyers on both sides said their cases were damaged beyond repair.

Just before Gwinnett County State Court Judge Shawn Bratton declared the mistrial Friday morning, Ford filed motions for sanctions against Kim and Adam Hill, the two sons suing the company on behalf of their deceased parents. At least some of the issues could potentially carry forward into a new trial.

One said Ford “moves the court to impose sanctions for the spoliation of evidence—the bodies of Melvin and Voncile Hill.”

The spoliation motion seeks to exclude the autopsy report from the Hills’ expert, Dr. Jonathan Eisenstat, which concluded they died from blunt impact to their head, neck, torso and extremities. The autopsy goes to the heart of the Hills’ contention that their parents died because their Ford F-250 pickup truck roof crushed down on them during a rollover.

The fight that ended the trial was also over cause of death testimony. Ford lead counsel D. Alan Thomas of Huie Fernambucq & Stewart of Birmingham, Alabama, was questioning a defense witness, Dr. Thomas McNish, a medical doctor and aerospace expert. The final straw in a highly contentious trial came when Thomas asked McNish his opinion about what killed the Hills. McNish said the roof crush didn’t kill them because milliseconds earlier they had other injuries from the roll, including their heads diving toward the roof and stopping while their bodies continued to move.

“Excuse me, Dr. McNish. Your honor, this is the exact testimony the court ordered before trial that this witness could not offer,” the Hills’ lead counsel, Jim Butler of Butler Wooten & Peak in Columbus and Atlanta, said. “He’s talking about cause of death.”

In a Feb. 12 order on 45 different plaintiffs’ motions in limine, Bratton ruled, “The court does not find that Dr. McNish has sufficient skill or experience to provide expert opinion as to the cause of death of either decedent.”

At the moment McNish gave that testimony, Bratton discretely stopped the proceedings and  sent the jury out for an early lunch. Outside the presence of the jury, the lawyers argued. After thinking about it over lunch, Bratton returned and said he was going to strike McNish’s entire testimony as a sanction. But Butler said the jury was “poisoned” and that a mistrial was the only remedy.

Ford’s counsel said they were irreparably harmed by losing McNish.

But as the dispute moves forward, even if Ford cannot use McNish’s opinion about cause of death, the new motion, if granted, would prevent the Hills from presenting their autopsy report concluding that the couple died from head trauma.

Ford’s motion said the “private autopsies” were “obscured by a suspicious haze,” since the company did not have representatives present. Plus, the motion contends, Ford cannot follow with its own autopsies because, once one is done, the bodies are no longer in the same condition as before.

“A duty existed to preserve the Hills’ bodies. When plaintiffs exhumed the bodies and conducted ex parte autopsies, that duty was breached. Ford has been prejudiced by the loss and alteration of that evidence,” Ford’s motion said. “The appropriate remedy is to strike the testimony of Dr. Eisenstat regarding the autopsy from the record.”

Or, Ford added, the judge could give the jury instruction on spoliation, saying “you may, but are not required to presume that the lost evidence would have been unfavorable” to the Hills.

Asked about Ford’s autopsy motion, Butler said in an email ”the court has already ruled on [the autopsies] several times. Ford’s pathologist admitted that Ford could have requested its own autopsies. Ford did not—obviously because Ford knew its own autopsies would confirm Dr. Eisenstat’s findings. Instead … its defense team elected to make accusations against plaintiffs and plaintiffs’ counsel.”

Butler also responded to Ford’s other motion for sanctions on the day of the mistrial, which followed other motions from the Hills. Both sides said the other violated Bratton’s orders on their motions in limine. In addition to the nine alleged violations of court orders in Ford’s motion from the mistrial day, the company said it had identified 11 earlier ones that did not need to be mentioned again.

Butler called the accusations of court order violations “nonsense.”

One of Ford’s accusations of violations was against not the lawyers but plaintiff Kim Hill. The company asked to strike his testimony on cross-examination when he told Ford attorney Randy Evans of Dentons that all he wanted was for Ford to take back every truck “that’s got the same roof like my parents.” Hill said he wanted Ford to buy back those trucks at list price and destroy them, plus pay his lawyers’ fees. “If y’all can do that, y’all don’t owe us anything, not a dime,” Hill said from the stand.

Ford said Hill’s testimony violated the court’s order granting its “Motion in Limine No. 2,” precluding “argument or testimony inferring the existence of a duty to recall.”

Butler, in response, said Ford willfully violated court orders with which it disagreed.

No new trial date has been set.

The case is Hill v. Ford, No. 16 C 04179-2.