Vol. 12, No. 3,009 - The American Reporter - October 19, 2006

On Trial

by Joe Shea
American Reporter Correspondent
Hollywod, Calif.

Printable version of this story

LOS ANGELES, Feb. 5, 2003 -- Hours after a trio of plaintiffs in Phoenix settled similar cases with a different German automaker, a jury headed by Los Angeles City Atty. Rocky Delgadillo voted overwhelmingly Wednesday to find that Mercedes-Benz was not negligent in the design and sale of cars containing heater core end caps that can explode and burn drivers, and awarded the Los Angeles plaintiff nothing.

"Many of the cars we looked at were rolling wrecks," said defense attorney Jeff Lyddan, "in extraordinarily poor condition, barely running and poorly maintained... . That's what caused it," he told The American Reporter.

"It was a great result," added Melissa Force, co-counsel with Lyddan. Both work for San Francisco-based Carroll, Burdick & McPherson, a major product liability defense firm.

There was strong interest in the case because of its celebrated juror and because recalls of the heater cores by some car makers but not others have raised questions about their liability when the parts fail, spewing boiling hot coolant on drivers' legs and feet and filling the passenger compartment with dirty steam that makes it impossible to see.

The Phoenix case was originally a class action suit, but a Federal judge ruled last year that not enough was known about other potential plaintiffs to let the case proceed. The terms of the Wednesday morning settlement were not disclosed.

The Mercedes-Benz case in Los Angeles was brought by Albert Royas, a Puerto Rican real estate broker whose heater core exploded in an aging, overheating 1989 Mercedes-Benz 190E as he drove 20 to 30 miles an hour along Mission Blvd. in East Los Angeles two years ago. Royas claims his car, which had 120,000 miles on the odometer at the time of the accident, "is in showroom condition."

The jury split 10-2 and 10-3 on the issues, and one of the dissident jurors said two "no" votes on each count came from Mercedes-Benz owners. The owner of a Mercedes 260E, Alan Neumann of West Los Angeles, said he doubted Dr. Edward Caulfield, the expert engineering witness who tested the heater cores, for producing charts that Neumann said his college statistics course taught him were flawed. The other dissenter was the owner of a 190E Mercedes-Benz who was also an engineer, Neumann said.

Delgadillo played a key role in moving the jury from an 8 to 4 stalemate, and that the Harvard-trained former All-American football player was relied on by jurors to interpret the judge's instructions. "He performed his function as laid out by the court, and I don't fault him," Neumann told the American Reporter.

"Where there was a question about what that function should be, the court didn't give us guidance. That might have made the difference in how [jurors] saw the facts. It also elevated him to a much higher standard and influence among the jurors, because he wasn't just the foreman, he was making interpretations of the judge's instructions," he said.

Neumann said a number of jurors ultimately forced Delgadillo to send a query to the judge, who responded that the instruction weas mistaken. "That took three hours," Neumann said. According to legal observers, though, jurors must decide the meaning of instructions, not the judge.

Royas' lawyers had earlier foreseen "potential risk" to both sides in not challenging the city's top elected legal official. But in permitting Neumann to serve, attorneys for Mercedes-Benz and Daimler-Chrysler allowed a juror whose ex-wife was represented by Royas' lawyer, Herbert Hafif of Claremont, Calif., in a malpractice suit against an HMO in which Hafif won $800,000 for her.

Hafif has been one of the nation's top trial lawyers, winning huge settlements in a variety of product liability, malpractice and whistleblower suits since the 1970's. He was also national co-chair of President Jimmy Carter's winning 1976 campaign, and president of the California Trial Lawyers Assn. in 1973.

But Neumann said Hafif "appeared to be struggling" and had "alienated" much of the jury. "One juror said he kept grimacing and scowling at him, and I didn't think that was appropriate," Neumann said.

Hafif was not in court for the verdict. His partner, Larry Sackey, said the firm plans to review the decision and determine whether to appeal.

Delgadillo told reporters afterwards that the jury service had been "exhilirating," and that he found the other jurors "fantastic."

"Both sides presented a good case," Delgadillo said, adding that the jury in the end had concluded that the heater core explosion was due to poor maintenance. "The defense made a very good case that there was a standard of care that ordinary people would be expected to handle," he said.

Neumann said it was Delgadillo who brought an American Reporter article that had been faxed to his office into the jury room, where it was passed around among the jurors. Neumann said that as he glanced at the article he noted that it suggested Delgadillo was paying more attention than most of the other jurors.

When Neumann remarked on that observation to a bailiff, the article was seized and presented to Judge Emilie Elias. Judge Elias, a highly regarded jurist whom one well-known lawyer said tonight had settled his law firm's dissolution with remarkable speed, called all the jurors into her chambers and asked which ones had seen the article.

Meanwhile, the defense moved for a mistrial based on that incident and jurors' exposure to a news story about Delgadillo that appeared on two popular morning drive-time stations, KNX-AM 1070 and NPR affiliate KPCC in Pasadena. That story, by Vince Cinisomo-Lara, originated with City News Service, a local wire service.

Only one juror, Hamid Shimalvi, according to the defense motion, said he had seen the American Reporrter article, but no other jurors responded when poled by Elias, including Delgadillo. Delgadillo, who came to court with an aide, Richard Durup, may have been given the fax among a pile of other papers and correspondence the city attorney worked on during breaks in the trial, which last 16 days.

Delgadillo, who is usually on the other side of the jury box, found himself highly impressed with the experience and praised the hard work of his fellow jurors over two days of deliberations. He noted that many of the jurors were even more inconvenienced by their service than he was.

"It is an incredible testament to our democracy that we do this," he said.

Royas, the losing plaintiff, was not impressed, however. "I hope you will say that the next time a person is killed [due to a ruptured heater core] it will be on the shoulders of the city attorney."

In hundreds of cases of heater core failures so far, however, none are known to have resulted in death to the victim, and in Royas' case, jurors felt the fault was Royas' own.

Joe Shea is a plaintiff in a heater core case in Arizona and is represented by Lance Entrekin of Phoenix, Gerry Strick and Linda Williamson.

See: http://www.laweekly.com/ink/00/43/news-shea.php Joe Shea's Sept. 15, 2000, story in the LA Weekly on how a VW heater core ruptured on a Los Angeles freeway and burned his right foot.

Copyright 2006 Joe Shea The American Reporter. All Rights Reserved.

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