Monday, March 1, 2010

Plaintiffs Lawyers Jockey for Venue in Massive Toyota Litigation

Ever since his 1996 Toyota Camry shot up an interstate ramp, plowing into the back of an Oldsmobile and killing three people, Koua Fong Lee insisted he had done everything he could to stop the car. A jury didn't believe him, and he was subsequently sentenced to eight years in prison. New revelations of safety problems with Toyotas have Lee pressing to get his case reopened and his freedom restored. Relatives of the victims — who condemned Lee at his sentencing three years ago — now believe he is innocent. The prosecutor who sent Lee to prison said he thinks the case merits another look. Lee’s accident is among a growing number of cases, some long resolved, that are getting new attention since Toyota admitted its problems with sudden acceleration were more extensive than originally believed. Numerous lawsuits involving Toyota accidents have been filed over the recent revelations, and attorneys expect the numbers will climb.

Plaintiffs lawyers have been positioning themselves for a front seat in the mounting litigation arising from the sudden unintended acceleration problems in vehicles manufactured by Toyota.

According to an article published today on approximately 150 lawyers gathered at the InterContinental Chicago hotel to discuss sharing experts and legal strategies in the Toyota litigation, which now exceeds 80 lawsuits. Many of the lawyers have broken into camps based on which jurisdiction they believe should hear the multidistrict litigation against Toyota -- and, perhaps more importantly, which judge should decide the cases.

One of the most popular districts under consideration is the Central District of California in Los Angeles, near the headquarters of Toyota Motor Sales USA Inc. Lawyers supporting this locale include products liability attorneys Mark Robinson Jr. and Richard McCune as well as Toyota's lawyers, Cari Dawson and Lisa Gilford, both partners at Atlanta's Alston & Bird. Richard McClune was the first lawyer into court against Toyota.

Another group is advocating Kentucky, where Toyota operates its largest manufacturing plant outside Japan. A third group is pushing for the Eastern District of Louisiana in New Orleans, which recently heard MDL proceedings involving Merck & Co. Inc.'s painkiller drug Vioxx.

Federal officials are focusing on the two major issues behind the recalls — gas pedals that can become lodged on floor mats and pedal systems that are "sticky," making it harder for drivers to press on the pedal or ease up on the gas.
The information requests seek detailed timelines on when Toyota first became aware of the problems, how it handled complaints, how much it have paid out in warranty claims over pedal problems, what internal communications there were about pedals and which company officials were involved in making decisions about the issue.

NBC News had reported a few weeks ago that a former Toyota product liability lawyer had accused Toyota of hiding information in product liability suits. The House Oversight Committee subpoenaed his documents and found that they showed Toyota hid internal data recording Toyota testing data, collected in an electronic “Books of Knowledge.” The chairman of the committee (Ed Towns) had written the president of Toyota Motor Company US (Yoshimi Inaba) for more information.

All but one of the documents pertain to rollover suits, not the accelerator problem which triggered the fury. But given that Toyota hasn’t given Congress records from all the extensive testing that, it claims, prove that Toyota’s accelerators don’t have electronic or software issues the exposure of these “Books of Knowledge” are going to cause Toyota some big headaches going forward.

The document in question were from attorney Dimitrios Biller. The committee reviewed the documents and found evidence that Toyota “deliberately withheld relevant electronic records that it was legally required to produce in response to discovery orders in litigation”. Biller was a Managing Counsel in the Product Liability Group of Toyota Motor Sales (USA) from April 2003 to September 2007. As the committe letter noted “this was a very senior position, in which he led the defense of some of the largest tort cases filed against Toyota, particularly “rollover” cases involving seriously injured victims, including quadriplegics”. Lest we forget, less than a year ago the Ford Motor Company – which got no bail-out money – recalled over 4 million cars due to a fire hazard that had affected about 500 of its vehicles. Several days ago an editorial in the Washington Examiner pointed out that the United Auto Workers union is among the most powerful special-interest groups pouring millions into the campaign coffers of the very Congress members who now serve as Toyota’s prosecutor, judge and jury. We are told that 19 of the 36 Democrats on the House Energy and Commerce Committee were given sizable checks by the UAW for their election campaigns. We also learn that 12 of 25 Democrats on the House Oversight and Government Reform Committee got checks, too. In my opinion, such a conflict of interest puts Toyota at quite a disadvantage.

According to " the posse list " As far as work for e-discovery vendors, staffing agencies and contractor attorneys — it sure looks like work is coming for both the plaintiffs and defendants sides. We suspect the Toyota case(s) will follow the pattern of previous product liability cases that employed legions of contract attorneys such as the Bridgestone/Firestone tire case (the treads on tires mounted on Ford Explorers, Mercury Mountaineers, and Mazda Navajos were separating from tires and causing rollovers if the SUVs were moving quickly), the Vioxx case (Merck launched its signature arthritis drug in 1999, and Vioxx proved to be a blockbuster. Unfortunately, it also later proved to cause elevated chances of heart attack or stroke in its users), and the Guidant implantable defibrillators case (flaws in electronic devices installed in patients’ chests to control irregular heart activity).

On the Toyota side, everybody seems to be banging on the door of Alston & Bird, King & Spalding — and maybe Morgan Lewis. Alston & Bird and King & Spalding have been Toyota’s go-to firms for major pieces of litigation over the last two years, with Alston recently overtaking King & Spalding as the company’s preferred counsel. But it was King & Spalding that Toyota turned to when facing Congress, specifically Theodore Hester, a partner in the firm’s D.C. office … who was in all the photos and sitting just in front of Peter. The firm has a long history of representing corporations under congressional investigation. Hester is also registered to lobby for defense contractor Lockheed Martin Corp., pharmaceutical companies and others. And Hester was involved in another inquiry into auto safety when he helped counsel Bridgestone/Firestone after the company recalled 6.5 million tires, the case we cited above

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