• The Daily Journal on Toyota’s efforts to avoid punitive damages Friday, October 1, 2010
    OCTOBER 1, 2010   |  LITIGATION

    Toyota Fends Off Punitive Claims

    By Gabe Friedman

    Daily Journal Staff Writer

    Marie Edwards was driving on a wooded road in Shasta County one afternoon in September 2009 when her Lexus sped out of control, barreled at least 150 feet through a grove of trees and into boulders. Edwards died at the scene.

    Her family is one of a dozen plaintiffs suing Toyota Motor Corp., alleging a vehicle defect caused her to accelerate unintentionally. But developments in her case may foreshadow a costly battle looming in other litigation: Can Toyota be forced to pay punitive damages for the pain and suffering she endured in the furious few seconds between when the car sped out of control and came to a fatal stop?

    As Toyota seeks to fend off lawsuits over alleged unintended acceleration while also voicing concern for safety, the degree of horror or bodily injury a driver faced in the seconds before a crash is likely the last issue the company wants to debate. But John P. Kristensen of O’Reilly Collins, a lawyer for the Edwards family, is pursuing a strategy that could force Toyota to do just that, or face additional liability from punitive damages that could stretch into the millions of dollars.

    According to a recent letter between the parties, obtained by the Daily Journal, his strategy is bringing the issue to the forefront.

    What plaintiffs like the Edwards family will have to show is that her death was not instantaneous and, therefore, punitive damages for pain and suffering are appropriate.

    That’s because of a fissure in California law: A plaintiff can obtain punitive damages under personal injury claims but not wrongful death claims.

    “Plaintiffs’ lawyers wouldn’t put it this crassly, but they love personal injury cases even more than wrongful death cases if the injury is severe enough,” said James Gash, an associate dean at Pepperdine School of Law, who specializes in punitive damages.

    Gash said some jurisdictions allow punitive damages to attach to wrongful death claims while others do not.

    Much of the inconsistency stems from the fact personal injury law and wrongful death law evolved differently: Whereas personal injury law grew out of British common law, wrongful death law grew out of statutes passed by the Legislature.

    Georgene Vairo, a Loyola Law School professor who specializes in civil procedure, said the result can create bizarre inconsistencies. For instance, “If you killed somebody, you could actually walk away better than if you mangled somebody,” Vairo said.

    As a result, plaintiffs’ lawyers are always searching for “ways of getting back to mangled,” Vairo added.

    Kristensen alleges his client’s pain and suffering is real. He filed a survival cause of action, alleging Edwards suffered serious bodily injury in the period leading up to her death.

    “My argument is my client obviously had pain and suffering before she died,” he said. “Her vehicle is taking off and going 90 miles per hour into the trees. The terror in and of itself is a form of pain and suffering.”

    Vince Galvin, of Bowman and Brooke, represents Toyota. He declined to comment on correspondence with plaintiffs in the case.

    But according to a Sept. 27 letter, which an associate at Bowman and Brooke wrote to Kristensen about the matter, the automaker plans to try to knock out the survival claim before it can grow into a full-scale public debate.

    “It does not appear that the decedent ‘survived’ the crash,” Curtis Jimerson wrote. “You responded that the decedent was scared in the seconds before the crash, which satisfies the requirement for a survival cause of action. I advised that despite your theory, Toyota may respectfully be compelled to file a responsive pleading to cure the apparent deficiencies in the complaint.”

    Legal experts said the letter suggests Toyota will likely file a demurrer, or a motion to strike, that addresses the matter as a procedural error, rather than file a summary judgment motion where the evidence can be weighed.

    “To the extent that a party thinks a pleading does not satisfy the requirements of the law, this is the appropriate time to address it,” Galvin said.

    Kristensen argued he is on solid ground. His office specializes in aviation law, and he analogized the situation to a plane crash: The families of deceased passengers are often able to obtain punitive damages for the pain and suffering they endure before the crash, he said.

    Though the issue has not been heavily litigated in vehicle accidents, he said he found case law to back up his position.

    If the survival claim survives, and the case proceeds to trial, Kristensen would likely need to present testimony from the coroner or a doctor as to Edwards’ pain and suffering, experts said. “This becomes part of the settlement negotiations,” said Vairo, the Loyola Law School professor. “What this claim is worth for those 3 seconds – it basically just gives the plaintiffs leverage at the negotiations table.”

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