Noriko Uno was driving to the bank when she hit another car at an intersection. The impact, according to a lawsuit against Toyota Motor Corp., caused her 2006 Camry to spin nearly 180 degrees, causing her foot to become wedged between the brake and accelerator pedals.
For the next 35 seconds, Uno, 66, found herself traveling the wrong way down a one-way street, her accelerator pedal stuck in the depressed position. She hit the brakes, but her car accelerated out of control. To avoid oncoming traffic, she swerved off the road toward a wooded median, smashing into two telephone poles and then a large tree. She died instantly.
The trial, in which opening statements are set to begin Wednesday, represents the first bellwether among hundreds of lawsuits against Toyota over sudden acceleration problems in its vehicles.
Most of the massive litigation against Toyota involved alleged defects with the electronic throttle control system, which led to the recall of nearly 10 million vehicles; plaintiffs’ attorneys originally asserting that such electronic defects, not the recalls over floor mats and accelerator pedals, were the real problem causing sudden acceleration. By contrast, Uno’s survivors claim that Toyota failed to install a brake override system that would have automatically shut off the engine and saved her life. Toyota maintains that such a system would not have stopped Uno’s car.
“The heart of the mass tort was always the electronic throttle control. The fact that the first trial is going and not bringing that theory is interesting,” said Byron Stier, a professor at Southwestern Law School in Los Angeles who specializes in mass tort litigation. “Look how far that is from the original panic of this.”
Todd Walburg, who serves on the plaintiffs’ steering committee in the California state court coordinated proceeding against Toyota, brushed off the distinction.
“The Uno case is focused on Toyota's lack of a brake override system, which we contend is a safety defect,” Walburg of San Francisco’s Lieff Cabraser Heimann & Bernstein wrote in an email to The National Law Journal. “Some of the other upcoming cases will also include discussion of alleged software defects in Toyota's electronic throttle control system.”
Sending a message
The Uno case actually is not the first against Toyota to go to trial over sudden acceleration. In 2011, a federal jury in New York found Toyota not liable for an accident attributed to sudden acceleration. And last year, three days before trial, a state court judge in Ohio issued a directed verdict for Toyota in a warranty case.
But plaintiffs’ attorneys leading the coordinated actions—of which neither of those two cases was a part – consider both to be outliers. The Uno case, in contrast, is a bellwether, defined as a case selected, usually by mutual agreement of both parties, to go to trial ahead of similar cases because the facts best represent the mass tort litigation as a whole. That means a verdict in the case could serve as a barometer for hundreds of personal injury or wrongful death cases across the nation.
“The Uno trial will be the first opportunity to observe a jury's reaction to some of Toyota's internal documents and witness testimony,” Walburg wrote. “These observations will be instructive and helpful for future bellwether cases.”
The Uno trial—to be argued by Garo Mardirossian of Mardirossian & Associates in Los Angeles, who is not a member of the committee—will take place over two months near downtown Los Angeles, where Judge Lee Smalley Edmon, past presiding judge of the Los Angeles County, Calif., Superior Court, is overseeing the consolidated litigation.
The California state court cases are separate from a raft of federal claims that have been coordinated in multidistrict litigation before U.S. District Judge James Selna in Santa Ana, Calif. In that litigation, which involves personal injury and wrongful death actions across the country, the first trial is scheduled for November 5.
Other trials are scheduled this year in state courts in Oklahoma and Michigan.
In the Uno case, Edmon ordered a mandatory settlement conference on July 11. According to lawyers in the case, both sides were far apart, with Mardirossian—seeking damages for negligence and strict liability, plus punitive damages—asking for $30 million.
Mardirossian did not return a call for comment.
Stier, who represented the tobacco industry and other companies against mass torts claims while in private practice, said the settlement amount in a single case is not the issue for Toyota.
“It’s not really about the one case. It’s about everybody else,” he said. “They want to send a message to all the personal injury cases banging around in the system, and others that could be filed: Do not take us lightly, we’re not just going to roll over and settle for huge amounts.”
Toyota could feel the need to dispel the public perception that there’s anything wrong with its vehicles, he said. And after paying $1.6 billion to settle related consumer claims, in a deal that Selna approved on July 19, Toyota is in a position to resolve what remains of the sudden-acceleration lawsuits.
‘Simple, easy, and inexpensive’
In alleging a failure to install a brake-override system in her Camry, Uno’s husband, Yasuharu “Peter” Uno, and son, Jeffrey Uno, note that Toyota had done so in eight other models of its cars since 2001. The installation of such a system would have been “simple, easy, and inexpensive,” Mardirossian wrote in court records. An override system, he contended, is designed to cut engine power in the event that the accelerator and brake pedals are depressed at the same time.
In Uno’s case, that’s exactly what happened, he wrote, after her car hit a 2003 Lexus driven by Olga Bello at about 4 p.m. on August 28, 2009, in Upland, Calif. The suit alleges that Bello, 86, drove through a stop sign, hitting the driver’s side of Uno’s car.
“Defendant Olga Bellow started this tragedy by failing to follow the law, failing to stop at the stop sign…and failing to yield the right of way to Noriko Uno,” Mardirossian wrote. “Defendant Toyota compounded it by choosing not to install brake override in Mrs. Uno’s 2006 Toyota Camry.”
Toyota spokeswoman Celeste Migliore issued a formal statement about the Uno case: “Our sympathies go out to the family and friends of Noriko Uno. Toyota is committed to providing its customers with safe and reliable vehicles, including the 2006 Camry driven by Mrs. Uno, which was equipped with a state-of-the-art braking system and has earned top safety and quality honors. We are confident the evidence will show that a brake override system would not have prevented this accident and that there was no defect in Mrs. Uno’s vehicle.”
Toyota attorney Vincent Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke wrote in court records that a brake override wouldn’t have prevented the accident.
Uno, he argued, also bears some blame. For one thing, there is scant evidence that she hit the brakes. Her car stopped after colliding with Bello; then she drove off, eventually against traffic for half a mile. Moreover, Toyota’s experts plan to testify that Uno’s foot could not have become stuck as her family describes and that low blood sugar levels brought on by her diabetes “caused her cognitive impairment and confusion” in the moments following the crash with Bello, Galvin wrote.
Moreover, Uno’s vehicle was never subject to the recalls.
Also in the case is Bello, who was sued for negligence. In court records, she claims she was returning home after getting ice cream with her daughter, 44, who has Down’s syndrome, when she slowed at a stop sign. She insists that the collision was minor, and that she was only going 10 miles per hour at the time.
She also claims that Uno’s car, after spinning around, stopped, and then started again, eventually heading in the wrong direction.
“Our client did not even see her after the collision occurred because Uno left the scene, and of course half a mile away was the accident that resulted in her death,” John Duffy, Bello’s attorney, told The National Law Journal. “Our accident was just essentially a fender-bender type thing.”
Like Toyota, Duffy, of Gray Duffy in Encino, Calif., said that Uno’s diabetes impaired her driving that day—and that there is no way her foot could become stuck on the accelerator pedal as the lawsuit alleges. “It couldn’t have happened that way,” he said. “They did tests on it, we did tests on it. The foot couldn’t get entrapped that way.”
In the days leading to trial, more than two dozen motions were filed, mostly to withhold information from jurors. Jury selection began on July 21.
So far, Toyota has settled bellwether cases. One case, which settled for an undisclosed sum about a month before trial in February, stemmed from an accident involving four passengers in a 2008 Camry in Utah, two of whom died, including the driver. That case was slated to be the first bellwether trial in the federal MDL. In 2010, Toyota also paid $10 million to the family of Mark Saylor, a former California Highway Patrol officer who died, along with three other passengers, after his rented 2009 Lexus sped down a San Diego highway. That accident, which involved a terrifying 911 call, occurred on the same day that Uno died.
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