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July 29, 2010 |
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| February 09, 2010 |
By: John Pacenti |
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oyota may be in a public relations nightmare with a recall of 2.3 million vehicles with balky gas pedals, but it may be in a position to stop the onslaught of litigation seeking class-action status, legal experts say.
About a dozen lawsuits seeking class actions status have been filed nationally, including four in Florida federal courts.
Plaintiff attorneys already are jockeying to determine where the federal cases will be consolidated in one place. The positions include a New Orleans lawyer arguing for venue in the Big Easy, saying some Saints fans couldn’t travel to South Florida for the Super Bowl in their Toyotas because of the recall.
Lance Harke, a plaintiff attorney with Harke & Clasby in Miami, took a more practical approach in his motion, arguing South Florida Toyota owners may be more affected by the defect.
“One of the issues raised is that humidity and moisture contribute to pedals sticking,” he said Monday.
Plaintiff attorneys are prepared to argue the Japanese automaker knew of the problem and has shifted the blame to various causes for months. The lawsuits seek various compensation, such as loss of vehicle value, out-of-pocket expenses and punitive damages for endangering consumers’ lives.
Toyota announced a temporary sales stoppage and a mass recall last month because the accelerator pedals can stick, causing cars to speed out of control. The company also recalled 4.2 million vehicles in November, blaming a similar problem on floor mats jamming gas pedals. Toyota also is reported ready to recall 300,000 2010 Prius hybrid cars for braking problems.
The company has designated Lewis Tein in Miami to defend the litigation in Florida. The firm’s two partners — former U.S. Attorney Guy Lewis and veteran litigator Michael Tein — said they could not comment on behalf of Toyota, which has remained mum on pending litigation.
Michael Eidson, a founding partner at Colson Hicks Eidson in Coral Gables who is not involved in any cases filed against Toyota, expects a bullish defense from the company on lawsuits seeking class action.
Toyota initiated the recalls and can argue the National Highway Traffic Safety Administration pre-empts class actions, Eidson said. He won the first wrongful death case involving the exploding Ford Pinto in 1975 and has been involved in high-profile mass torts and class actions, including cases involving Chrysler minivans with malfunctioning rear door latches and Ford Explorer rollovers.
He said Toyota’s liability problem is severe, especially in cases of death or injury, if it can be proven the manufacturer knew of the problem before initiating the recalls.
“When your car has unwanted acceleration, it basically becomes an unguided missile,” Eidson said.
Plaintiff attorneys say they expect wrongful death and personal injury cases will be tried individually where they are brought, but Eidson said he could foresee consolidation of recall-driven lawsuits in federal court.
Toyota is in a better position to defend itself against class actions with the large number of vehicles subject to the recall. Company warranties state the manufacturer is not responsible for paying incidentals due to repairs, whether they be lost work time or replacement rental cars.
“You may have a really good class action, which consists of a lot of people affected by a common defect, but have difficulty proving damages if all the affected cars are recalled and repaired,” Eidson said.
A Ford Explorer ruling by the 7th U.S. Circuit Court of Appeals in Chicago could send cases to state courts based on variations in state consumer protection laws.
“You may end up with 50 different state class actions,” Eidson said.
West Palm Beach attorney Brian Smith, a partner with Smith & Vanture, filed a lawsuit against Toyota on Feb. 3 on behalf of Andrea Heilbrunn, owner of a 2009 Toyota Corolla.
The suit claims Toyota tried to cover up a defective accelerator pad problem and aims to go after Toyota’s estimated $270 billion in revenue last year, saying some were ill-gotten gains.
“We are not sure what the problem is. At first she was being told it was the floor mats, and now she is told what is doing it is the gas pedal mechanism,” Smith said. “She, like many others, are confused, frustrated and scared.”
Harke filed a lawsuit in Miami federal court Jan. 10 on behalf Jonathan Gellman, who leased a Lexus IS 250 in 2009.
The suit focused on the floormat problem but may be amended . Harke said Toyota has been giving customers a run-around. His client first heard it was a simply floor mat problem, then it was a malfunctioning gas pedal and now some blame a software issue.
He is doing an end-around the Toyota warranty immunity by claiming a violation of Florida’s Deceptive and Unfair Practices Act as well as breach of contract and unjust enrichment.
Apple co-founder and Prius owner Steve Wozniak said last week that he thinks Toyota’s problems are software-related and complaints about his car have received no response from Toyota or NHTSA for two months.
“Toyota denied there was any problem. They blamed the misplacement of the floormats, then it was the gas pedal and now we are looking at the software.” Harke said. “It’s becoming a much larger issue.”
John Pacenti can be reached at (305) 347-6638.
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