USA: Disputed Transcript Triggers 'Nightmare' for Ford in Products Liability Suits
The National Law Journal
In what legal experts are dubbing "a lawyer's nightmare," an attorney representing Ford Motor Co. is scrambling to protect Ford from being hit with more vehicle-rollover lawsuits because of disputed comments he made during a recent California trial.
Anthony Sonnett of San Diego's Yukevich & Sonnett is contesting a phrase in his June 2 closing argument in which he told the jurors: "It's impossible not to be angry at Ford Motor Company for what decisions that in marketing and selling this Ford Explorer it knowingly put a defective product out on the market," according to the court transcript.
He went on to say to the jury, "We are sorry that we let you down. The engineers are sorry that they let the rest of the company down."
Sonnett is contesting the "defective product" portion of his comments, maintaining that he was only acknowledging the jury's earlier finding that the Ford Explorer had safety issues and that Ford failed to fix them. At that point, a San Diego jury had awarded the plaintiff $122.6 million in compensatory damages.
The jury awarded a total of $368.6 million to Benetta Buell-Wilson, 49, who was injured in January 2002 when her Explorer flipped over on a California highway. She sued Ford, alleging that the Explorer design made it prone to rollovers and roof collapse. Benetta Buell-Wilson v. Ford, No. GIC800836 (San Diego Co., Calif., Super. Ct.). Dennis Schoville of San Diego's Schoville & Arnell served as the plaintiffs counsel.
'OUT OF CONTEXT'
In a notarized declaration dated June 25, Sonnett stated: "It makes no sense for anyone to argue that a single phrase of my closing argument, taken out of context and improperly transcribed, was somehow an admission not just of defect, but that Ford knew that the vehicle was defective. I never made any such admission, never intended to make any such admission, and was in no way authorized by Ford to do so."
Sonnett maintains that he said "for your decisions," not "for what decisions" -- a distinction he believes changes the whole tone of the sentence. As for the apologies, he said in his declaration, "They were simply an acknowledgment of the anger that the jury obviously felt toward Ford."
But legal experts, especially those in products liability, say the damage has already been done to Ford, which is currently facing more than 1,100 lawsuits involving the Explorer. They predict that Sonnett's words will come back to haunt Ford in the form of new lawsuits, or as evidence in existing ones.
"This is a lawyer's nightmare," said Robert Clifford of Chicago's Clifford Law Offices, and past chair of the American Bar Association Section of Litigation, who specializes in plaintiffs tort litigation. "Here you have a lawyer that's assuming he's in front of one little jury and that no one's listening and instead he made remarks that shot across the nation."
The crucial question is whether or not judges will allow plaintiffs' attorneys to use Sonnett's comments as evidence in other cases.
On June 25, Ford filed motions in Alabama and West Virginia, requesting that Sonnett's closing arguments in the San Diego case not be allowed to be admitted as evidence in cases pending in those states. Wilder v. Ford, No. CV-01-121 (Pickens Co., Ala., Cir. Ct.); Kaye v. Ford, No. 01-C-417-S (Mercer Co., W.Va., Cir. Ct.).
"I'm sure everybody who's got a case involving the Explorer will try to use it," said attorney Tab Turner of North Little Rock, Ark.'s Turner & Associates, who is handling about 100 Ford rollover cases. "I'll certainly try."
But Ford isn't about to walk away without a fight. Ted Boutros, who will appeal the San Diego verdict, noted that Ford won 13 consecutive Explorer rollover trials. "Plaintiffs lawyers who are trying to make an issue out of this are just desperate," said Boutros of Los Angeles' Gibson, Dunn & Crutcher.
Ford echoed this sentiment in a June 28 statement, saying: "No matter how his statements are pulled out of context by plaintiffs lawyers hoping to gain advantage in other litigation, we stand by the position we have taken consistently through this case, and the 12 before this one: that the Explorer is a safe vehicle that has performed well in the real world."
Meanwhile, Boutros plans to file a motion to correct the court record to reflect Sonnett's "actual" comments. He said he is still waiting for the official court transcript before he files the motion.
But changing the record may prove to be another problem altogether for Ford. The San Diego courtroom does not audiotape court proceedings.
According to the Administrative Office of the U.S. Courts, only 37 of the country's 680 federal district courts audiotape court proceedings.
The lack of audio recordings leaves the final decision with the judge.