Days after an Oklahoma City jury returned a $3 million verdict in a lawsuit involving the crash of a 2005 Camry that injured the driver and killed a passenger, Toyota attorney John Hooper called plaintiffs attorney W. Daniel “Dee” Miles. Within about three months, according to Miles, he and Hooper, a partner in Reed Smith’s New York office, along with other lead plaintiffs attorneys suing Toyota Motor Corp., hashed out a process to possibly settle the remaining 450 cases alleging sudden-acceleration defects.

“I can’t tell you what he said because the negotiations are confidential,” said Miles, head of the consumer fraud section at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. “I can’t say that — but the timing of it is obvious.”

Hooper did not respond to a request to verify the conversation. But on Dec. 12, he, Miles and other plaintiffs attorneys outlined their proposed “intensive settlement process.” U.S. District Judge James Selna in Santa Ana, Calif., overseeing most of the litigation against Toyota, has scheduled a Jan. 14 hearing on the matter.

Hundreds of lawsuits followed Toyota’s 2009 and 2010 recalls for defective accelerator pedals and floor mats that could cause cars to suddenly accelerate. Last year, the company reached a $1.6 billion settlement of economic damages claims related to the recalls. The remaining cases were filed on behalf of people who were injured or died.

In the Oct. 24 Oklahoma state court verdict, jurors found Toyota’s actions “reckless.” The company settled the case for a confidential sum before jurors could award punitive damages. The trial was the first to present evidence that defects in the electronic throttle control system — not floor mats or accelerator pedals — were responsible for sudden acceleration.

ELECTRONICS ON TRIAL

By putting electronics on trial, the Oklahoma jurors served as a “focus group” on whether juries could be convinced that software defects caused sudden acceleration, W. Mark Lanier of The Lanier Law Firm in Houston wrote in an email to the NLJ. Lanier, preparing for a March 4 trial in a case before Selna, and plaintiffs attorneys at Charleston, W.Va.’s Bailey & Glasser, facing a Feb. 19 trial in state court in Flint, Mich., had planned to put the same electronics software experts on the stand. Both trials involved a 2005 Camry.

Electronics were not at issue in the first major trial against Toyota. In that case, a jury in Los Angeles found on Oct. 10 that Toyota was not liable for the death of Peter Uno’s wife, Noriko Uno, whose 2006 Camry crashed into a tree. Plaintiffs attorneys blamed Toyota’s failure to install a brake override system. Jurors, in rendering a $10 million verdict, instead blamed the driver of another car that hit Uno’s vehicle prior to the crash.

Despite the Oklahoma verdict, Toyota has continued to defend the electronics in its cars. Spokeswoman Carly Schaffner wrote that “reliable scientific evidence and multiple independent evaluations have confirmed the safety of Toyota’s electronic throttle control systems.”

That may be true, but it might not matter to jurors, said Gregory Keating, professor at the University of Southern California Gould School of Law.

“One thing it suggests is the plaintiffs don’t have to be able to identify the specific electronic failure that is causing the sudden acceleration,” he said of the Oklahoma verdict. “The plaintiffs are prevailing without having to prove that. They’re able to prevail if they show there isn’t any other cause we can attribute sudden acceleration to — like operator error or collision by a third party.”

Moreover, Toyota lost the case in a fairly conservative jurisdiction. In 2014, the company faced trial beyond Santa Ana. Los Angeles County, Calif., Superior Court Judge Lee Smalley Edmon had lined up several trials in cases filed in California’s state courts. “So if they persuaded one jury in a conservative jurisdiction, you can imagine what might happen in California,” said Carl Tobias, professor at the University of Richmond School of Law. “The law is better for plaintiffs in California, and the juries will be, too.”

Under the proposed settlement process, a first stage would involve “all parties and their counsel” in each case. Cases that are not settled would go to mediation in a second phase. If cases still aren’t settled, they would be sent to the court in which they were filed for trial. Schaffnercalled the process “a clear path forward for those claims that cannot be resolved outside of trial.”

By coming up with a process, rather than a global settlement, plaintiffs attorneys acknowledged how disparate the facts of each case are. “You had some people with no injuries but problems with their car,” Miles said. “And then you had people who had a horrible death. Some died in the car when it caught fire, some just had a fender bender. It was hard to make that many categories for each and every circumstance.”

Selna has given attorneys across the country until Jan. 8 to respond to the proposal. If successful, the process could help Toyota resolve the litigation by calculating how much each case is worth — while keeping dollar amounts secret.

“The public may never know what the total bill is,” Miles said. “But I’m not sure they had a right to know that anyway.”

Contact Amanda Bronstad at abronstad@alm.com.