In the previous installment, Part 7A, I discussed the ridiculous arguments that led a motorcoach manufacturer and its insurance carrier to tender an $80,000,000 settlement for a 2005 accident where the driver fell asleep at the wheel and the ensuing accident killed five passengers – because the plaintiff’s attorney and his expert claimed that 1998-manufactured vehicle was “defective” because it did not contain seatbelts. In this installment I will discuss the equally-ridiculous arguments (made by that same attorney and same expert) that induced that same manufacturer and its carrier into settling for $40,000,000 because this 2001-manufactured vehicle did not contain three-point seatbelts. I suppose $40,000,000 was enough this time around since this same plaintiff’s team now also induced four other codefendants into settling for additional tens of millions for a 2008 accident that killed 17 more people when its driver, similarly, fell asleep at the wheel.
While this second accident was more tragic, it was also more outrageous because the same plaintiff’s attorney and expert involved in the 2005 accident prosecuted this second lawsuit using many of the same ridiculous arguments than they used in the first case. And as in the first case (named Hinton), this attorney appeared to have excluded his expert from reviewing the vast majority of the evidence – including even the ridiculous NTSB Report whose incompetence I exposed in Part 2 of this series. Only this time, presumably because bilking the same motorcoach company out of $80,000,000 in the first case seemed so effortless, the plaintiff’s attorney decided to not only bilk another $40,000,000 out of it in this one because its 2001 motorcoach did not contain seatbelts (as did no others manufactured in this country until seven or eight years later), but thanks to the incompetence of the NTSB report, he was able to bilk two giant tire manufacturers out of a sum I cannot even imagine. But even that was not enough: He also decided to file suit and settle against the seating manufacturer – something that simply had not dawned on this plaintiffs’ team years earlier in the 2008 Hinton lawsuit.
From the perspective of the plaintiffs’ attorneys, this latest twist seemed completely logical since obtaining $80,000,000 from the coach manufacturer — because it was allegedly defective because of its seats – was almost effortless. So this time around, it only made sense to also file suit against the seating manufacturer. I can only guess that, with 12 more fatalities, the plaintiff’s team accepted half as much from the coach manufacturer because it felt it could get an equal or similar amount from the seating manufacturer. Of course, thanks partly to my and Larry Plachno’s efforts as expert witnesses, plus much better “lawyering,” this did not happen, and the seating manufacturer settled for mere peanuts, by comparison. But the problem was, it still settled.
Deprived of his review of most of the evidence in this second case (Vu, about which most of this series of articles is about), the plaintiff’s expert began his testimony with the same type and quality of nonsense he cited in the Hinton case. Among the statements in his deposition testimony about this new matter:
- He believed that there were several ejections, even though he admitted not even reviewing the NTSB Report that conjectured that there “might” have been two or three, even though one NTSB investigator felt that there were none, and one member of the local police reconstruction team was adamant that there were none. My own analysis of the accident suggested that even a single ejection would have nearly impossible given the progression of events occurring in the accident and the “orientation” of the vehicle throughout it (see explanation in Part 3 of this series).
- While criticizing the seat manufacturer in the Vu case’s motorcoach for having a defective seat (because it did not contain seatbelts), this expert had worked on a seating project for a fellow seating company in 1991 that did not contain seatbelts, and he acknowledged that he never suggested adding them. Similarly, while testing and otherwise consulting on the design and construction of yet another company’s compartmentalized motorcoach seat from 1986 to 1994, he never suggested that they also install seatbelts. Yet this expert also testified that if the company he worked for in 1991 had actually asked him about it, he would have told them that the omission of seatbelts would have equated with the vehicle having no occupant protection.
- This expert testified that when he examined the coach involved in the Vu accident, his primary criticism of it was that it had no seatbelts. Yet he also admitted that, in this case, he “chose” to concentrate on this lack of seatbelts rather than on anything related to the windows. The reader should keep in mind, of course, that the coach manufacturer makes or installs the windows, there were no ejections through the windows (despite this expert’s incorrect claim about this noted above), and that the coach manufacturer – at least at the time of this expert’s testimony – had already settled out of the case.
- When challenged by an Australian usage study that showed only 20% of Australian motorcoach passengers actually used their seatbelts, this expert dismissed this critical revelation by remarking simply that, “20% is better than 0%.”
- While this expert did not know what the additional costs for installing three-point seatbelts would be [manufacturers told our team that they would lie between $20,000 and $30,000 for a new vehicle, and roughly $40,000 for a retrofit], he testified that whatever they would be, they would not be exorbitant. The reader should keep in mind, of course, that half the motorcoaches currently on the road are worth less than $40,000, and thus, if retrofitting seatbelts onto them were required, it would be cheaper to simply discard them, and we would lose half our nation’s motorcoach fleet. To be fair, adding five to eight percent of its costs to a new motorcoach might not be exorbitant. But driving around an extra three percent more of its mass for 20 or more years would certainly be. And removing four to six seats to offset the additional 1500 or so pounds that the seats and their anchorages would add to the GVWR would certainly be exorbitant. Unfortunately, at that point in the case, the defendant’s counsel never thought to follow up with any questions about operating costs.
- While this expert’s focus in the Hinton case lay on both seatbelts and glazing, it lay only on seating in this one (i.e., Vu), since the motorcoach manufacturer had already settled out – as he openly admitted. In the Vu case, he never once testified that the vehicle’s “occupant protection system” was compromised because of any defects in glazing.
- While he testified that the motorcoach itself was “defective” and “incredibly dangerous,” unlike his testimony in the Hinton case, in this one he testified that the motorcoach manufacturer relied completely on the seating manufacturer regarding what type of seats to install in its bus. Extending this fantasy still further, he testified that if the seating manufacturer had told the coach manufacturer what seats to install, the coach manufacturer would have simply and naturally installed them. As a footnote, the reader should know that, in court or in a deposition, one cannot testify about what someone else thinks. Yet the motorcoach manufacturer’s counsel did not even object to this last remark.
- When asked why, in the Hinton case, he did not testify that the seating system was defective, he replied that, in that case, “no one asked me about it.” He clarified this omission further by stating that, in the Hinton case, defective seats “were implied.”
Normally, in the world of supply and demand, one sells only what someone else is willing to buy. But in this case, the plaintiff’s expert actually articulated the sales dynamics of what one might reasonably call the “Godfather theory” of OEM-supplier relations: “Hey! You gonna buy our seats, or d’ya wanna swim with da fishes?” If you believe that things work this way in our industry, you still have a few months left to put together your wish-list for Santa.
Concessions to Wonderland
By now, the reader must be thinking that juries are the reason water-boarding was invented. But that would be neither fair nor accurate: The collection of verbal diarrhea you just read about never made it to any jury. Failing to trust one, the insurance carriers of our nation’s most prominent motorcoach manufacturer and two worldwide tire manufacturing giants handed over tens and tens of millions of dollars so that a jury never had a chance to hear and respond to such arguments – much less the chance to hear a handful of coherent responses to what would be kind to characterize as technical and economic fairy tales.
The point of this installment, and frankly the point of this entire series, is that if no member of our community makes the effort to put a stop to such utter nonsense, it will not only never stop, but its occurrence will increase almost exponentially. Last year I learned of a major transmission manufacturer included among the codefendants in a bus fire case. In the lawsuit discussed above, we have a drowsy driver awake for almost a full day with so much cocaine in his system that the NTSB speculated that he might have imbibed it during the trip! Yet this driver – whose company had just before the incident been removed from service for committing 24 FMCSA violations, and whose owner was recently indicted by the Department of Justice (see July 15, 2013 issue of Bus and Motorcoach News), brought two huge multinational corporate giants and our continent’s largest motorcoach manufacturer to their knees – the latter spending $120,000,000 in two successive lawsuits because of opinions that would not likely fool a pig.
In the first case, the plaintiffs’ team blamed the carnage on the vehicle. In the second case, this same team blamed it on the vehicle and its seating manufacturer. If I were a fabric manufacturer in this industry, I would be very worried. If this trend continues, it will soon become a risk to manufacture thread.
Not only must this extortion stop, but it can. I will explain how to put an end to it in the last few installments in this series. Unless you actually enjoy giving away enormous sums of money to ridiculous causes for ridiculous reasons, you may want to stay tuned.
God forbid this defendant should have been indicted for vehicular homicide or even manslaughter. Instead, four of his six indictments were for “making false statements.”