Georgia Supreme Court and Court of Appeals Building (John Disney/Daily Report)
As their battle over a multimillion-dollar judgment heads to the Georgia Supreme Court, lawyers for the family of Remi Walden and the maker of the Jeep vehicle in which he died have filed briefs framing two dramatically different views of the same trial.
Chrysler’s lead appellate counsel, Thomas Dupree Jr., a Washington, D.C.-based partner with Gibson, Dunn & Crutcher, and plaintiffs’ lead attorney, Jim Butler Jr. of Butler Wooten & Peak, have offered starkly contrasting stories, even about the tragedy that led them to litigate.
Here’s Chrysler’s opening: “This case involves a $150 million personal injury award resulting from an automobile accident. Four-year-old Remington Walden was killed when the 1999 Jeep Grand Cherokee in which he was riding was rear-ended at highway speed and caught fire. The driver of the other vehicle, Bryan Harrell, pleaded guilty to vehicular homicide and is now in prison. Even though it was undisputed that Harrell caused the accident, Plaintiffs (the parents of Remington Walden) sued Chrysler along with Harrell for wrongful death, challenging the design of the Grand Cherokee’s rear-mounted fuel tank.”
Here’s a small part of what Butler wrote about that Jeep: “Remington Walden burned to death because FCA/Chrysler placed the gas tank behind the rear axle of its Jeep. That was unnecessary: FCA stipulated that it could have located the gas tank midships, in front of the rear axle. … The evidence proved that Chrysler had long known that mounting a gas tank behind the rear axle was dangerous.”
The briefs recounted the nine-day trial in South Georgia’s Bainbridge before Decatur County Superior Court Judge J. Kevin Chason in March and April of 2015.
From Chrysler: “What should have been a straightforward trial about vehicle design soon spiraled out of control, as the trial court allowed Plaintiffs to introduce evidence and make arguments that had no relevance to the issues the jury was asked to decide, but were intended to incite the jury’s passions by whipping up prejudice against a large corporate defendant and to set the stage for the verdict that followed.”
Chrysler alleged Chason was wrong to allow the plaintiffs to mention the CEO’s pay.
“Over Chrysler’s repeated objections, Plaintiffs introduced evidence of the compensation and benefits Chrysler paid its chairman and CEO Sergio Marchionne, despite the general rule in Georgia that ‘evidence of the wealth or worldly circumstances of a party is never admissible, unless in those exceptional cases where position or wealth is necessarily involved.’”
But Butler countered that Chrysler has changed its tactics: He wrote that the company “waived its newly-created argument that if the existence of incentive compensation was admissible, the amount was not, by failing to make that argument at trial” or at the Court of Appeals. “At trial, FCA’s objection was to the entirety of the evidence, and FCA did not object separately to the amount. If any part of the evidence was admissible, it was not error to admit it all.”
The Walden brief said the jury determined that the company “acted with a reckless or wanton disregard for human life” and failed to warn of the hazard it created.
There was a third view of the trial—from a video camera. Courtroom View Network filmed the trial and produced the video on its website. At the Daily Report’s request, CVN provided a clip of a key part of Butler’s closing argument.
Butler tried the case with a team that included his son, Jeb Butler of Butler Tobin. They split closing. The senior Butler followed a Chrysler lawyer who had argued that the award for pain and suffering should be limited because the boy only lived a minute after the Jeep gas tank exploded into flames and that the child’s ordeal was “mercifully short.”
Butler took off his watch, set it for one minute, laid it on the podium and asked the jury for 60 seconds of silence. “Now. Start thinking about what Remi went through,” Butler said. The courtroom was dead quiet. At the end of the minute, Butler said “time.”
That minute could have been worth the $30 million awarded in the verdict for pain and suffering.
In Chrysler’s words, from the appellate brief: “The jury deliberated for less than two hours and returned a stunning verdict: $120 million in noneconomic wrongful death damages, and an additional $30 million in noneconomic pain-and-suffering damages. It apportioned 99 percent of the fault to Chrysler and 1 percent to Harrell.”
Chason later reduced the total award from $150 million to $40 million: $30 million for wrongful death and $10 million for pain and suffering. But Chrysler contends that the reduced sum is still too high.
“Plaintiffs introduced no evidence of Remington Walden’s lost future earnings and made no effort to prove any sort of economic harm,” Chrysler’s lawyers wrote. “Instead, they asked for wrongful death damages for ‘intangible’ harm reflecting lost ‘value of the life,’ and for noneconomic pain-and-suffering damages,” Chrysler argues in its brief.
The Georgia Court of Appeals affirmed the $40 million judgment.
“The plaintiffs presented evidence that there is no more painful way to die,” Judge Christopher McFadden wrote for a three-member panel. “Chrysler has not shown that the trial court manifestly abused his discretion in awarding the plaintiffs $30 million for their child’s wrongful death and $10 million for his pain and suffering.”
Presiding Judge M. Yvette Miller concurred fully with McFadden. Judge Carla Wong McMillian concurred fully on eight of nine points and in judgment only on the remaining one.
The lawyers will have a bigger audience for arguments at the Supreme Court, which expanded from seven to nine justices this year and continues to hear all cases en banc.
The case is Chrysler v. Walden, No. No. S17C0832.