The past year has not exactly been kind to plaintiffs attorneys pursuing sudden-acceleration claims against Toyota Motor Corp. In February, the U.S. government appeared to refute their most powerful argument. In May, a federal judge threw out a major group of claims. One month later, he refused to sanction an immediate appeal of that ruling.

Still, coordinated litigation against the automaker continues to chug along, with trials set for early next year. California is home to the federal multidistrict litigation that includes essentially all federal cases from across the country filed against Toyota. On separate consolidated tracks are cases raising claims under California, New York and Texas state laws. By all indications, 2013 will be the year those cases come to trial.

“All technical products liability cases can be challenging, but we feel confident that we will prevail at trial,” said Todd Walburg, a partner at Lieff Cabraser Heimann & Bernstein; the firm serves as co-lead counsel for the personal injury and wrongful death cases in the federal litigation. He also is a member of the executive committee in the California state court consolidated actions.

The first bellwether state trial is scheduled in Los Angeles County Superior Court in January, and the first trial on federal claims is slated for February in the U.S. District Court for the Central District of California. Discovery is pending in Texas and New York. In all, almost 500 cases nationwide allege that unintended acceleration in Toyota vehicles led to injury or death. In addition, at least 200 cases allege economic losses to consumers from the defective vehicles.

In the federal multidistrict litigation bellwether case, the survivors of 66-year-old Paul Van Alfen, who died in 2010 when his Toyota Camry crashed through a stone wall, allege that the accident was caused by the car’s sudden acceleration, even though Van Alfen pounded the brake pedal.

Representing Toyota in the federal litigation is Bowman and Brooke. Representing Toyota in the state litigation is Eckert Seamans Cherin & Mellott. Attorneys at those firms did not respond to messages seeking comment for this article.

The first major setback for the plaintiffs came when the U.S. Department of Transportation released the results of a 10-month study of possible electronic causes of the unintended acceleration. The National Highway Traffic Safety Administration launched the study at the request of Congress, and it enlisted NASA engineers to research whether electronic systems or electromagnetic interference played any role.

The study found no electronic flaws in Toyota vehicles capable of producing the large throttle openings required to create high-speed unintended acceleration. Instead, the agency agreed with the automaker’s explanation that faulty floor mats and sticky accelerator pedals were causing Toyota’s vehicles to suddenly accelerate out of control.

Toyota seized on the outcome. “Although plaintiffs’ counsel have speculated for nearly three years about an unspecified ‘ghost in the machine,’ they have been wholly unable to identify any defect in Toyota’s electronic throttle control system that could cause unintended acceleration in a real world scenario,” said Celeste Migliore, a spokeswoman for Toyota. “We will continue to defend Toyota vigorously against these baseless allegations.”


Plaintiffs attorneys assert that the government study was deeply flawed.

“We suspect that the public will smell a rat,” Walburg said. “We believe that Toyota and their experts provided only limited information to the government agencies, and that the nonpublic versions of the reports actually support plaintiffs’ positions in this litigation.”

Throttle science aside, plaintiffs are proceeding on a theory that the company failed to install a brake override system that might have prevented acceleration problems. Also problematic was a ruling by U.S. District Judge James Selna, who is presiding over the federal multidistrict litigation in Santa Ana, Calif. In May, he threw out economic-loss claims by consumers in New York and Florida. Those plaintiffs, unlike the personal injury plaintiffs, had alleged that the acceleration malfunctions drove down the value of their vehicles. Selna determined that economic-loss claims from some of the plaintiffs could not proceed because of laws in those jurisdictions.

At the time of the ruling, Toyota issued a statement: “We believe this ruling also has important implications on the dismissal of other ‘no injury’ claims beyond these two states,” it said. Later, Selna rejected a bid by those plaintiffs to appeal the dismissal to the U.S. Court of Appeals for the Ninth Circuit.

Steve Berman, an attorney at Hagens Berman who is co-lead counsel in the federal litigation, described Selna’s ruling as “very significant” because it requires hundreds of thousands of Toyota owners to claim a potentially deadly driving experience before they can get anything from the company.

Plaintiffs, however, experienced some victories this year, too. In May, Selna sanctioned Toyota over the company’s failure to contact a lawyer for the victims of a 2010 car crash before inspecting the vehicle. He said the move cast a “cloud of suspicion” over Toyota’s behavior. The judge said he would instruct the jurors that they could infer that the evidence about the car would have been adverse to Toyota’s case.

In addition, during a hearing in October, Selna indicated that he might grant class certification to the remaining plaintiffs (those not from New York or Florida) seeking economic losses in the multidistrict litigation. Such a ruling would likely make or break those claims.

“We have not gone through the class certification process, but I have a suspicion that at the end of the day I will certify some form of class to be tried,” Selna said, according to the hearing transcript. “I’m not ruling out the possibility that there is a failure on the class certification motion, but if I had to predict and had to plan for the future, I would assume that we will try some form of class action beginning July 31, 2013.”

Migliore said she was confident that class certification would be denied, given the “wide range of dissimilarities” of the plaintiff’s claims.

Leigh Jones can be contacted at