by Joe Shea
American Reporter Correspondent
January 30, 2003
FOR TRIAL LAWYERS, MERCEDES-BENZ HEATER CORE CASE IS RED HOT
LOS ANGELES, Jan. 29, 2002 -- One of the nation's most successful trial lawyers on Wednesday challenged an expert witness for Mercedes-Benz U.S.A as a closely watched trial on the automaker's liability for an exploding heater core that badly burned real estate salesman Albert Royas drew to a close before Los Angeles County Superior Court Judge Emilie Elias and a jury that includes Los Angeles City Attorney Rocky Delgadillo, the city's top lawyer.
Herbert Hafif, a former president of the California Trial Lawyers Assn. who has won some of the highest verdicts ever awarded in California, spent much of the afternoon struggling in a testy confrontation with an expert witness on heater cores produced by Mercedes-Benz U.S.A and co-defendant Penske Motorcars of West Covina, Calif., part of the chain founded by auto racing legend Roger Penske.
The witness, one of a stable of 40 experts from Illinois-based Packer Engineering that automakers use at product liability trials around the United States, said he had not seen tests conducted by BASF, the manufacturer and vendor of the parts, but had conducted his own that showed they would "get trashed" at extremely high temperatures sometimes produced in car engines. Despite records showing that Royas had reported the problem to the dealer, Metro Motors, on more than one occasion, and had kept his car serviced according to plan, the witness, engineer Edward Caulfield, Ph.D., said the "heater core talks to me and says it has been abused."
The case is being closely watched because there have been at least 52 cases in which drivers of Mercedes-Benz 190D and 190E automobiles have suffered burns from exploding heater cores after a plastic heater core end cap, a rectangular plastic device about eight inches long, two inches wide and 1/4 inch thick, ruptured and spewed boiling-hot antifreeze on drivers' feet. The part remains in an unknown number of some 175,000 U.S. versions of 1983 - 1993 Mercedes 190D and 190E models that remain on the road, but was recalled by Renault and Isuzu, and was modified in BMWs.
"They're very old cars, averaging over 12 years old. Most have 200,000 miles or more; one had 300,000," Mercedes-Benz U.S.A attorney Jeffrey Lyddan of Carroll, Burdick & McDonough of San Francisco.
Meanwhile, there are now at least three cases headed toward trial in U.S. District Court in Arizona, where Volkswagen of America and French parts manufacturer Valeo face trial for installing and manufacturing highly similar plastic end caps that exploded and burned drivers of Volkswagen Golfs, Jettas and other models. At least 1.1 million Volkswagens still have the part in their engines, and rupture cases resulting in burns have already won substantial jury awards in Illinois and other states. Volkswagen of America made a five-figure offer on at least one of the current cases on Tuesday.
While the suits contend that for a few cents more both Mercedes and VW could have used metallic end caps that have a much lower failure rate, Caulfield said the metal parts fail his tests at the same extremely high levels of heat. The manufacturers fault the drivers for neglecting their vehicles and abusing the heater cores, which are located just above drivers' feet, over the brake pedal, in the affected models.
"The testing shows they both fail at the same rate," said Lyddan, the Mercedes-Benz lawyer. He said Caulfield is the only expert who has tested the end caps himself under laboratory conditions.
Lyddan agreed there were 52 injuries producing "mostly minor burns," but said the universe of Mercedes-Benz 190D and 190E models was much larger than 175,000. "There's actually 1.9 million cars," he said, around the world. That would seem to make the failures an extremely tiny fraction of the total.
The difference, according to Hafif, is that all of the 52 injuries were from the 175,000 cars sold in the United States, where due to a design difference the car heaters are "always on." The other cars cited by Lyddan, in Europe and elsewhere, Hafif said, are first turned on by a second switch that then allows electricity to flow to the heater core, a long, narrow metallic box composed of thin plates which become red hot. As the coolant passes through the box from the engine, fans blow the hot air through a vent into the passenger compartment of the car. The end cap is supposed to prevent the coolant from escaping. The heater design sold in the U.S. does not employ a switch. Hafif, however, and lawyers for the three Arizona plaintiffs, say the fault lies with the weaker plastic end caps, not the switch.
Royas, the driver, suffered third-degree burns on his feet and legs when his 1989 Mercedes 190E, which had 120,000 miles on the odometer, ruptured as he drove "20 to 30" miles per hour on Mission Blvd. in East Los Angeles. With rumors circulating of a potential multimillion dollar jury award, Hafif said he would be "disappointed" if it came in at $1.6 million. Lyddan and Mercedes-Benz U.S.A co-counsel Melissa K. Force referred a reporter to the automaker's public affairs office for comment.
Both Volkswagen, which has already recalled the party once only to see the replacement design also rupture, and Mercedes-Benz, which has remained steadfastly resistant to recalling the same part that other manufacturers have recalled, fear a costly wave of product liability suits based on the verdicts in either of the trials, and could face a Federal recall if the public becomes aware of the issue. Most drivers, including Delgadillo - according to Hafif, who questioned him during the jury selection process known as voir dire - have no idea what a heater core is or how it works.
Attorneys for both sides said they were startled to see Delgadillo in the jury pool.
"I'm from San Francisco, so I didn't recognize him," said Lyddan. "I'm honored to have him."
"It is interesting, isn't it?' said Hafif, an Arab-American (his name is pronounced like the word "half"), whose whistleblower trials on Apache Helicopters, the B2 Bomber and MX Cruise missiles were highly publicized.
Hafif, of the Los Angeles suburb of Claremont, Calif., won a $600 million verdict in the Computerworld case of the 1970s', including a $140 million punitive damage award that was then the largest-ever in California, and $45 million for three Lockheed Corp. whistleblowers. One year, according to the magazine Arab-American Business, he won 13 percent of all the multimillion-dollar jury awards in the nation.
"I think [having Delgadillio on the jury] is a potential risk for both sides," Hafif said. "I think he won't try to take over the jury. He's a fair guy and a fellow Democrat. No, strike that - he's a fellow Californian." Hafif said.
But the Harvard-trained Delgadillo, a native of Los Angeles, was elected City Attorney in 2000 after serving a long stint as Deputy Mayor for Economic Development on the staff of Los Angeles Mayor Richard J. Riordan, a Republican. Hafif was national co-chair of the presidential campaign of President Jimmy Carter in 1976.
Delgadillo sat forward and listened intently throughout the exchange between Hafif and Caulfield, while many of his fellow jurors seemed quietly indifferent to the testimony. He smiled in return when a member of the audience recognized him. Reporters covering the courthouse were surprised to learn of his presence on the jury.
The trial (Case No. BC223738) will resume tomorrow at 9 a.m., when the defense is expected to present its final witness. Closing arguments were set for Monday by Judge Elias.
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.