February 4, 2015
Toyota’s runaway success in blaming drivers for its defective vehicles, hit an $11 million pothole yesterday, after a Minnesota federal jury found that the automaker was 60 percent responsible for an Unintended Acceleration (UA) crash that killed three and severely injured two.
Attorney Robert C. Hilliard, who represented plaintiffs Koua Fong Lee, the driver, and the family in the vehicle that was struck, says it’s the first jury verdict against Toyota in a UA case involving a mechanical defect. The automaker made no offer to settle the case prior to the January trial.
On June 10, 2006, Lee was exiting a Minnesota Highway 94 in a 1996 Camry when his accelerator became stuck in the wide open position. Lee was driving his pregnant wife and children home from services when, at 75 miles per hour, he plowed into the rear of an Oldsmobile Ciera that was stopped at an intersection. Fong alleged that he pushed on the brakes, but they failed to stop the Camry. Driver Javis Trice-Adams Sr., and his 9-year-old son were killed, his father, Quincy Adams and Trice-Adams’ daughter Jassmine Adams were injured. Trice-Adams’ niece Devyn Bolton, 6, was paralyzed and died in October 2007.
Lee was convicted of vehicular manslaughter in 2008, and served two-and-a-half years of an eight-year sentence. Then, in 2009, the Toyota Unintended Acceleration crisis began to build doubts about the certainty of driver error in the crash. In August 2010, Ramsey County Judge Joanne Smith ordered a new trial. The prosecutor dropped the charges and declined to retry the case. Lee was released from prison.
Hilliard argued that Lee and the Adams family were victims of a design defect in which the plastic pulleys in the cruise control assembly overheat and bind the accelerator cable in the open position. Each time the accelerator was tapped, the throttle would open wider. Lee testified that he tried to bring the car to a stop, but the brakes could not overcome the open throttle. In previous testing the National Highway Traffic Safety Administration showed that vacuum brakes lose their effectiveness if pumped continually. Toyota argued that Lee mistakenly floored the accelerator for six seconds before the crash.
Hilliard attacked that notion in his closing arguments, with an exemplar pedal and a timer.
“Their theory was that Koua Fong Lee, without any panic situation, for some unexplained reason, after driving normally for 30 minutes, suddenly floored it for six full seconds as he is approaching a stop light with a bunch of cars in front of him,” Hilliard said. “I told the jury, for you to believe this, you have to believe that at the top of that hill — I floored it and pushed timer. Six seconds seems like an eternity.”
Toyota had attempted to counter Hilliard’s defect theory with the testimony of a Toyota engineer in Japan who claimed that the company’s “robust protocols” included days-long heat testing at 280 degrees. Then shortly before trial, Toyota filed a declaration from that engineer stating that the company actually did no such testing.
“It was the most amazing declaration I’ve ever seen,” Hilliard recalled, “where he was so proud of that test that it turns out they never did.”
Hilliard also bolstered his case with testimony from other who experienced a UA event, such as a doctor and a Black Hawk military helicopter pilot, who was flown in from Kuwait to testify.
The $10.94 million verdict was divided among the crash victims. Lee’s award was reduced by 40 percent for contributory negligence, but Hilliard says that he will file a post-verdict motion to challenge it — if Toyota’s defective design was the direct cause of the crash, then Lee should receive his full share.
Meanwhile, Toyota has settled more than 250 injury and death claims under its Intensive Settlement Program in the multi-district litigation involving UA in Toyota vehicles equipped with electronic throttle controls, says West Virginia attorney Hike Heiskell, who represents several plaintiffs with UA claims.
“They have settled a very high percentage of pending cases. One of the interesting things is how many new incidents are being reported after Toyota entered into the deferred prosecution agreement,” he says of Toyota’s March agreement to plead guilty to one charge of wire fraud and pay a $1.2 billion fine.
While he sees no applicability of the Lee verdict to cases involving electronic throttles,“still — it’s a system that took control of throttle and produced tragic consequences,” Heiskell says. “It pierces the Toyota defense that this doesn’t happen in the real world. Bookout was a great breakthrough, and this case is a great breakthrough, in letting the public see that it does happen in the real world.”