On Dec. 9, a federal judge gave Toyota Motor Corp. permission to depose 10 plaintiffs among the 200 class actions asserting economic damages tied to sudden uncontrolled acceleration — and gave both sides four months to identify which case will be the first to go to trial.
U.S. District Judge James Selna in Santa Ana, Calif., who is overseeing the multidistrict litigation (MDL) against Toyota, rejected Toyota’s request to depose plaintiffs in the 47 jurisdictions outside California where lawsuits have been filed. But he also dismissed the position of lead plaintiffs’ lawyer Marc Seltzer that the depositions were “unnecessary and burdensome.”
“The burden would be excessive, the need is nonexistent,” said Seltzer, a partner in the Los Angeles office of Houston’s Susman Godfrey.
Toyota’s lawyer, Cari Dawson, a partner in Atlanta’s Alston & Bird, said the depositions would determine whether there were “irreconcilable conflicts” between California law and other state laws under which suits had been filed. Toyota’s ability to show those conflicts potentially could unravel the nationwide consolidated class action on economic damages, which is based on California law, since about two-thirds of the cases were filed in other states.
In the end, Selna, who called the matter a “significant issue,” gave both sides until Feb. 5 to depose 10 plaintiffs outside California.
Selna also ordered both sides to pick the first case that could go to trial in the MDL, referred to as a “bellwether” case.
Toyota’s lawyers — including Douglas Young, a partner in San Francisco’s Farella Braun + Martel who was brought into the case weeks ago — had urged Selna to bump up the trial date for the bellwether case. Vincent Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke, offered a deal in which plaintiffs’ lawyers by next month would pick five possible cases; Toyota would agree to one for trial.
Plaintiffs’ lawyer Mark Robinson, senior partner in Newport Beach, Calif.-based Robinson, Calcagnie & Robinson, agreed to the selection process but urged Selna to wait another year, until the “core discovery” was completed, before selecting a bellwether case.
The bellwether case is likely to involve claims involving the Camry, Lexus ES or Tacoma, but it was unclear whether it would be a personal injury or wrongful death case, or the economic class action — or both at the same time.
Both sides agreed, however, that Selna should hear the first trial.
The first bellwether trial involving sudden acceleration claims could also occur in state court in Texas, where plaintiffs’ lawyers are pushing to set a trial for the first case, Galvin said.
“So be it,” Selna replied. “I’m the last person to tell a Texas judge how to run his calendar.”
Also on Dec. 9, Selna finalized most of the tentative orders he issued the day before denying the bulk of Toyota’s motions to dismiss 51 personal-injury and wrongful-death cases. Selna allowed plaintiffs’ attorneys to re-plead their case in 45 days.
Robinson said during a break in the hearing that he was pleased with the judge’s rulings, noting that Selna refused to grant Toyota’s dismissal on the “core issues” in the case, such as negligence. Robinson is co-liaison counsel for the plaintiffs’ steering committee in the personal injury and wrongful death cases.
Toyota spokeswoman Celeste Migliore issued a statement following the hearing: “It is important to emphasize that up until now all of the Court’s decisions have needed to accept the plaintiff’s allegations as fact. Toyota is encouraged that the Court considers our framework for managing the MDL, including bellwether trials, to be a reasonable approach, because it will bring closure to the critical science issues. We’re also pleased that we can move forward with depositions of selective plaintiffs to bring forth the actual facts of their cases.”
Both sides spent the better part of the Dec. 9 hearing arguing about a proposed discovery plan. Galvin raised concern about the protective order surrounding Toyota’s “source code,” the software underlying its electronics system. Toyota considers the source code “the most valuable asset it has,” he said.
Robinson told the judge that he thought that both sides had reached an agreement to provide the source code as long as it was in a secured and neutral building that has been used by the Department of Defense and the Central Intelligence Agency.
Selna told both sides to work out a resolution before the next hearing on Jan. 14.