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From Products Liability Law Daily, February 27, 2019

Nissan on the hook for $20 million in damages from fatal SUV crash

By Leah S. Poniatowski, J.D.

The evidence was properly admitted in design defect and failure-to-recall case against the automaker, nor could the company be rescued from liability by the statute of limitations or federal preemption.

A jury verdict concluding that Nissan North America, Inc., was liable for economic and wrongful death damages arising from an accident allegedly due to an SUV’s brake failure was upheld on a California appellate panel’s unpublished review of the lower court’s evidentiary rulings.. The panel also determined that the claims were motor vehicle safety law, although the damages were properly reduced to reflect the amount of the settlement received against the brake system supplier (Cruz v. Mathenge, February 26, 2019, Moor, C.).

In 2012, a 2004 Infiniti QX56 collided with a van in an intersection. The driver of the van and her two daughters were killed in the collision, while the Infiniti’s driver was seriously injured and required hospitalization. According to the Infiniti driver, he was traveling with the speed of traffic and attempted to slow down as he approached a red light, but when he pressed the brake it did not hold. He could not stop the car and changed lanes in order to avoid hitting the cars stopped in front of him, continuing unsuccessfully to pump the brakes. The car did not stop, and despite maneuvering and honking his horn, he entered the intersection and collided with the van. He stated that there was no light on the dashboard or sound when he was trying to apply the brakes. The police inspection following the crash showed that the mechanical braking system was operational. The driver’s son looked into the braking issue after his father returned home from the hospital, but could not find any information relating to Infiniti, brakes, or recalls.

The father of the girls killed in the accident and the daughter of the driver killed filed wrongful death lawsuits against the Infiniti driver in 2012 and 2013, respectively. The Infiniti driver was arrested and charged with vehicular manslaughter. In December 2014, the Infiniti driver’s daughter heard that there was a lawsuit filed against Nissan, the car’s manufacturer, alleging the same brake problem that her father said had occurred. When the Infiniti was removed from storage, the fault code identified with the other drivers’ brake problems was found stored in the car’s computer.

Fault code. Infiniti QX56s, Nissan Armadas, and Nissan Titans for the period at issue were equipped with a braking system that used two methods to supplement braking power: (1) a vacuum booster; and (2) a hydraulic pump. Under the first—and primary—method, the booster is pushed by a lever pushed by the brake pedal and uses vacuum pressure to compress the hydraulic fluid in the brake system. If there is a loss of vacuum to the booster, the emergency optimized hydraulic braking (OHB) system is triggered to use the hydraulic pump—not the force on the brake pedal—to apply pressure to the brakes. The delta stroke sensor serves to measure the stroke in the vacuum booster and if the sensor interprets data as a loss of vacuum or a sensor fail, fault code C1179 will be sent to the electronic control unit. Nissan designed its system to trigger the OHB if the C1179 code was activated. The sensors are calibrated using a value set at the factory, but they can "drift" over time and register false fault codes.

Nissan had received over 37,000 warranty claims regarding false C1179 codes triggering OHB mode and over 4,500 owners reported their brake pedal going to the floor. Restarting the car could clear the code in the short term, but the sensor would require replacement or the software needed to be reprogrammed to stop the false codes. In 2005, Nissan had Continental Automotive Systems, Inc., the braking system component supplier, resolve the delta stroke sensor software issue, in which the sensor calibrated itself each time the car was started, and in 2006, Nissan issued a technical service bulletin (TSB) to dealers without any other notification to owners, i.e., a service campaign or voluntary recall. Representatives of the National Highway Traffic Safety Administration (NHTSA) met with Nissan’s product safety director about the TSB but took no further action.

The van driver’s mother filed a lawsuit against Nissan and Continental, the father and daughter amended their lawsuits to add the manufacturers as defendants, and the Infiniti driver filed a cross-complaint. The lawsuits were all consolidated and alleged product liability and negligence claims against the manufacturers.

Trial court proceedings. Prior to the trial, the court denied the manufacturers’ statute of limitations motion, in addition to denying the manufacturers’ motions in limine to exclude evidence of other incidents and expert witness testimony. Additionally, the medical expense charges written off by the hospital could not be recovered as damages. Continental settled the claims before the jury was selected.

At trial, the deposition testimony of seven Nissan owners who had experienced a similar brake problem was introduced and the court instructed that the evidence was admitted only to show that Nissan was notified of these incidents. The attorney for the surviving family stated in closing argument that Nissan was aware of the dangerous condition presented by the feel and operation of the brake system, which caused drivers to panic after feeling that there were no brakes, that there was no evidence that the risk of the design was outweighed by its benefits, and a reasonable manufacturer would have issued a recall for the affected vehicles. Nissan argued that the driver had not pressed the brake but the accelerator, the fault code could have been activated during an earlier accident, and the experience of the driver in the present case was different from the experiences of the deposed owners as they were traveling at slower speeds, saw brake warning lights, heard a grinding noise, and felt vibrations. Additionally, Nissan argued that it had provided the information requested from NHTSA and the agency took no further action.

Damages and reduction. The jury found that neither the surviving father nor the Infiniti driver had knowledge before the statute of limitations period had run that there was a problem with the vehicle’s braking system. Additionally, the jury found that the braking system was a substantial factor in causing the harm to the parties. The jury found Nissan was negligent for not recalling the vehicle, and this negligence was a substantial factor in causing harm to all the parties. The jury also found the driver was negligent, but his negligence was not a substantial factor causing harm. Finding Nissan 100-percent liable for the harm to the driver and passengers in the van, the jury awarded the father $40 in economic damages, and $14 million for the noneconomic wrongful deaths of his children; the daughter was awarded $431,019 in economic damages and $7 million for the noneconomic wrongful death of her mother; The Infiniti driver was not awarded any damages for his medical expenses and was awarded $3.5 million for noneconomic damages. The jury was not presented with the option to assign any responsibility to Continental. Nissan challenged the awards, and the court granted to motion to reduce the liability with respect to the amount received in the Continental settlement. Nissan filed the present appeal and the survivors filed a cross-appeal.

Evidence of other incidents. The appellate court held that the lower court did not abuse its discretion when it admitted the evidence of other brake system incidents because the testimony was sufficiently similar to the driver’s experience, which met the legal standard for allowing evidence of prior accidents.

Evidence supporting verdict. The appellate court also determined that the survivors met their burden with respect to the risk-benefit test for establishing design defects. They presented evidence that the delta sensor calibration can drift and trigger the emergency braking system, the driver’s experience was consistent with the OHB mode, and the fault code was stored in the vehicle’s computer, in addition to the OHB mode causing the accident. However, Nissan did not present evidence as to how the risk of the false code was outweighed by the benefits of the original calibration. Second, the jury determination that the driver was negligent but not at fault was reconcilable with the fact that he was not wearing his seatbelt when driving on the day of the accident, which only endangered him, and as reflected in the damages awards in which he was not allotted anything for his past medical expenses.

Statute of limitations. The appellate court agreed with the jury that the statute of limitations was not applicable to bar the lawsuit against Nissan. The discovery rule applied to start the clock when it was discovered that there was a lawsuit filed against Nissan, especially in light of the evidence that the driver’s family had looked into the matter at the time of the accident and found nothing to put them on notice that there was an issue with the vehicle, especially as the police investigation determined that there was nothing mechanically wrong with the brakes. The evidence of other incidents was limited to establish that Nissan had notice of the issue.

Preemption. The failure-to-recall claim was not preempted by the National Traffic and Motor Vehicle Safety Act (49 U.S.C. §30101 et seq.) because the Act expressly states that it is supplementary to rights and remedies provided by state law, the appellate court explained. Additionally, Nissan was not barred by law from issuing its own recall.

Proposition 51. Finally, the appellate court agreed that under Proposition 51, which modified liability for noneconomic damages in civil actions for personal injury, property damage, or wrongful death, the Continental settlement should be considered in the damages award against Nissan because each tortfeasor is liable for only its share of noneconomic damages. In the case of strict products liability, the liability of all defendants is joint and several and, as a matter of public policy, the defendants are seen as being a single entity as they are in the same chain of distribution. In the case at bar, the claims against Continental were based on strict products liability, making them jointly and severally liable. Moreover, the damages were awarded for the defective design claim with no apportionment for the failure-to-recall claim. In order to prevent the survivors from recovering more than the amount of their damages, the trial court properly credited the settlement against the damages award. Therefore, the lower court’s ruling was affirmed.

The case is No. B286067.

Attorneys: Paul R. Kiesel (Kiesel Law) for Hilario Cruz and Solomon Mathenge. Mark V. Berry (Bowman and Brooke LLP) and Theodore J. Boutrous, Jr. (Gibson, Dunn & Crutcher LLP) for Nissan North America, Inc.

Companies: Nissan North America, Inc.

MainStory: TopStory DesignManufacturingNews EvidentiaryNews DefensesLiabilityNews PreemptionNews SofLReposeNews CausationNews DamagesNews MotorVehiclesNews MotorEquipmentNews CaliforniaNews

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