MERCEDES HEATER CORE CASE AVERTS MISTRIAL, GOES TO JURY
by Joe Shea
American Reporter Correspondent
Los Angeles, Calif.
LOS ANGELES, Feb. 3, 2003 -- A closely-watched trial over automakers' responsibility for exploding heater parts that have injured scores of people in Mercedes-Benz, BMW, and Volkswagen vehicles went to a Superior Court jury in Los Angeles this afternoon after a motion for a mistrial based on the discovery of an American Reporter article in the jury room was denied by Judge Emilie Elias.
Closing arguments presented by defense attorney Jeff Lyddan of San Francisco-based Carroll, Burdick & McPherson for Mercedes-Benz and Daimler-Chrysler urged the jury to disregard the testimony of an expert witness for the plaintiffs who had not tested the exploding heater cores manufactured by the Baer Corp. and sold by European auto parts giant BASF.
For the plaintiff, realtor Albert Royas of Los Angeles, trial lawyer Herbert Hafif of Claremont, Calif., told the jurors that his expert, Adnan Kasnabar, had been unable to perform tests because the company would not identify the plastic that is used to seal the end of the heater cores, which in Mercedes-Benz and dozens of other vehicles is located just over the passenger's foot when it is on the brake or accelerator. An expert hired by Mercedes-Benz, Dr. Edward Caulfield of Packer Engineering, a company that supplies expert witnesses in product liability cases, said the heater core end cap's failure was due to "abuse" by the driver.
Lyddan also told jurors that a finding by them that the plastic end cap was defective means they would have to find that all plastic and nylon end caps in Mercedes vehicles are also defective.
Mercedes, largely alone among automakers, has resisted recalling the parts which are in 1.9 million Mercedes-Benz 190D and 190E automobiles around the world. All the failures, which have often resulted in burns from boiling hot coolant spewed on drivers' feet, have been reported in the United States. In European vehicles, a standard Techmatic switch turns off the heater cores. That switch is not used in American cars.
Hafif said that unlike others, the part is one that "ages" and eventually degrades to 20 percent of its original strength. Lyddan says the cars involved in various injuries were uniformly old and poorly maintained. Records of maintenance performed by Royas indicated he frequently visited the dealer, often to buy parts, and had complained the car was overheating before the incident.
An exploding heater core burned Royas' foot and leg as he drove his 1989 Mercedes 190E on Mission Blvd. in East Los Angeles two years ago. The car had 120,000 miles on the odmeter. He told the American Reporter today that he hopes to become a crusader for a change in the use of the design that was in his car and millions of others.
Lyddan noted during his closing argument that Royas "was a Bolivian who probably went to school." Royas, a man in his 60s, is an attorney, Hafif said.
Instructions to the jury read by Judge Elias state that complaints from drivers to the National Highway Traffic Safety Administration and to Mercedes-Benz officials could be treated as "notice to defendants" of the problem, but otherwise cannot to be considered by the jury.
A trial is scheduled for June in Phoenix on three additional cases against Volkswagen, and observers say automakers fear they may face many more if a substantial award is offered to the plaintiffs in the Royas case, where the heater core design is similar and many issues are nearly identical to those raised in Phoenix and elsewhere.
At the conclusion of their deliberations on the liability issue, the jury will return to seek a verdict on exemplary or punitive damages in the case. Hafif told the jury in closing arguments that Mercedes-Benz had saved $150 to $200 million by not doing a recall of the part as Renault, Peugeot, Isuzu, Volkswagen and other automakers have done in response to heater core failures in their cars. The Volkswagen part that replaced the defective heater cores has also failed in some vehicles. BMW modified their heater core design after drivers complained of burns when the end caps failed, lawyers indicated in testimony last Thursday.
"I know you can fill in the gaps," Hafif told the jury. "I trust you. I know Mr. Royas trusts you."
The jurors include Rocky Delgadillo, the Harvard-trained former All-American football player and deputy mayor who is the elected City Attorney of Los Angeles, its highest-ranking legal officer.
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.