It has been 20 years since this landmark case in products liability. The author was part of it and now looks back2014 March
From the Author: First, I would like to praise and commend the article authored by Thomas H. Peters “Products Liability Jury Instructions: Blurred Lines” that appeared in the November 2013 issue of the Advocate. The article was informative, well written and inspired me to write this article.
Second, I dedicate the writing of this untold story to my longtime friend, mentor and brother in battle, Frank P. Barbaro. Frank was lead trial counsel in Soule v. General Motors (1994) 8 Cal.4th 548, a case that will be familiar to those who litigate products-liability cases in California, and which is also frequently cited about the rules concerning jury instructions. Frank presented the case as well as any trial lawyer I have ever known under difficult circumstances. Frank was, and still is, a master of his craft and to this day I still consider him to be one of the best trial lawyers in America. I had the honor, privilege and good fortune of serving as his senior associate who prepared the case for trial as well as sitting as co-counsel/second chair to Frank. People and friends who know Frank and me still laughingly refer to us as the “Soule Men.”
It was 1982. I had been practicing law since 1973 as a general practitioner with a modest emphasis on personal-injury plaintiff work. My office was in Claremont, California. A law-school classmate of mine, Ned Reilly, had formed a plaintiff’s law firm in Orange County with his USC classmates and fraternity brothers, Jay Horton and Frank Barbaro. The firm was known as Horton, Barbaro & Reilly. Tragedy struck the firm around 1982 when a terrible fire gutted the firm’s office building on Main Street in Santa Ana and caused the death of senior associate, Wes Harrison. The fire and water damage caused the firm to move to a warehouse up the street where the files had to be reorganized and literally “blow dried” with hair dryers.
The firm placed an ad in the Daily Journal seeking help, and I responded. We struck a deal where I could keep my sole practice in Claremont, feed cases to the firm, and work two to three days a week in Orange County on the firm’s own cases. I was placed in charge of a separate unit of auto/slip-and-fall/general tort cases with my own paralegal. I also was able to work on some of the larger, more complex cases that came to the firm. Teri Soule’s case was one of them.
When Teri Soule came into the office, I was struck by her humble spirit and likeable personality. She walked with a cane and had a severe limp due to the horrible injuries she had sustained to her left foot and ankle. She had broken both her ankles in a car crash with the left ankle requiring a quadruple arthrodesis of the foot and ankle. It was the worst foot and ankle injury I have ever seen. The ER doctor had done everything he could to save her foot since there was great concern necrosis would occur and the foot might have to be amputated. Fortunately, the foot was saved, but Teri would never walk again without a cane, nor would she ever again wear a dress or wear high heels. The pain bothered her constantly and significantly, but she bore the physical and emotional agony with grace and dignity.
Before the accident, Teri had purchased a 1984 F-Body Chevrolet Camaro. She worked for a probate referee as his assistant and was delivering papers as part of her job on the day of her accident. She was traveling on Westminster Boulevard in the City of Westminster and there was rain on the road and the road was wet that day. A young man traveling in a small Nissan was approaching in the opposite direction and hydroplaned and lost control of his vehicle and drifted across the road into Teri’s lane of travel. Teri “t-boned” the Nissan’s side with the entire front of her Camaro. Her seat belt was in use (which the GM defense disputed at trial) and Teri had very little memory of what happened. The floorboard/ firewall of the Chevy Camaro was significantly crushed and crumbled inward upon impact with the Nissan. Teri suffered some minor neck and back soft-tissue injuries but her major problems were the feet and ankle injuries.
Teri had been represented by another law firm before coming to our firm. The Nissan driver had a minimum policy of $15,000 which was tendered and paid soon after Teri’s accident. The City of Westminster was named in the litigation due to possible rainwater pooling or runoff on Westminster Boulevard that may have caused the Nissan to hydroplane or drift into Teri’s lane of travel. A small settlement was negotiated with the City before trial. However, the biggest focus of the case was the “crashworthiness” of the GM/Chevrolet Camaro to prove a defect. No one had stored or preserved the Camaro. My first thought was to find the car immediately if it was still available so an engineer could inspect same. I called Vollmer-Gray Engineering in Long Beach/Signal Hill to help me locate it.
One of the engineers, Steve Vollmer, was assigned the case. He advised me within days that the car had been sold for salvage to an individual in Azusa, California. He told me we needed to get there ASAP or the car would be chopped up and dismantled and sent off on a salvage barge to China or Japan. I told him let’s both go to Azusa and we did so in the next 48 hours.
We arrived in Azusa at the salvage yard and met the owner, Noah Hippolito. Noah operated his own salvage yard for over 10 years, buying damaged vehicles for scrap/salvage value and dismantling them personally since he had no other workers at his shop. Noah had to be called as a significant percipient witness at trial since Mr. Vollmer and I learned upon arrival that he had already “dismantled” the Camaro. Noah told us almost everything had been sold for salvage/scrap metal including the deformed floorboard/firewall with the possible exception of the front-end wheel assembly which he believed he still had pieces of at his shop. I was devastated and thought there was nothing left of the case, but Mr. Vollmer asked Noah to show us where the remaining pieces might be. Noah took us to a dirt area behind his shop and pointed to where the pieces might be. Vollmer and I literally dug in the dirt like prospectors looking for gold nuggets. I had no idea what I was looking for other than the way Vollmer described the parts to me. About 20 to 30 minutes passed with no results until I heard Vollmer shout to me. Vollmer ran to me with a strange looking piece of twisted metal. It turned out to be the front-end wheel assembly attaching bracket.
Vollmer felt sure by the manner of its deformation, and showed me the place where the metal had “torn”, that this was the defective/failed piece of the Camaro that had allowed the front tire to disconnect and move rearward and inward unrestricted into the Camaro’s floorboard/firewall crushing Teri Soule’s feet and ankles. Our metallurgist, Larry Kashar, later confirmed this at trial. Larry had tested the bracket and showed the bracket had a porosity which caused it to crack and not hold the tire in place. The bracket failure confirmed a definite manufacturing defect. We labeled and marked the bracket as Exhibit “Q” for trial. Noah Hippolito testified at trial and identified the bracket for foundation purposes. Noah would have thrown Exhibit “Q in the trash that afternoon had we not found it. The case would never have gone to trial since there would have been no case without the defective part. However, we still were not out of the woods by a long shot.
Having found the defective bracket we still needed to demonstrate how the front tire moved rearward and inward and crushed/deformed the floorboard and firewall of the Camaro causing the foot and ankle injuries to Teri. We only had some limited photographs to show the damage and no actual front end of the Camaro to show the jury since the rest of the car had been scrapped for salvage. Steve Vollmer and I decided the best he could do was to locate an exemplar Camaro with similar front-end damage and similar crush to the actual Soule vehicle and present this at trial to the jury.
This presented a very tough problem, but fortunately Vollmer found an exemplar Camaro vehicle at a salvage yard in Long Beach. Vollmer had the exemplar worked up to cut out the crushed front end into two parts and put them on pallets with rollers. We literally had to load the pallets with rollers on the elevators at the Fullerton Courthouse where the case was tried and move them up to the second floor. The exemplars were large and heavy and were rolled into the “well” in front of the judge and stayed there throughout the trial. Furthermore, Vollmer also used the pallet/roller format to create exemplars of the front-end assembly of the Camaro and compared same to the front-end assembly of a Ford Mustang. We made the tactical decision to proceed on BOTH product theories of manufacturing defect and design defect.
We demonstrated that the Ford Mustang had stronger parts and a fail-safe system in the event of any bracket breakage which was superior to the GM/Chevrolet system. As expected, GM’s defense counsel went crazy and argued and argued and argued both pre-trial and during trial with daily 402 hearings that all of the exemplar materials not be admitted into evidence. Every day at trial involved a battle an hour before the jury was ever brought in to hear testimony. The point of all of this to both veteran and novice trial counsel is to Secure The Defective Product In Its Entirety.
The vehicle/product is the evidence. Exemplars are valuable, but they do not constitute the real item that is being challenged. The trial judge gave us great latitude and leeway to present our case. Had he not done so, Soule v. GM would not be with us today. Since Soule, Frank and I have handled at least three other cases where the defective product was lost or spoliated. We have received settlements on all of these cases because the defective product was not preserved. Preserve the product in its entirety for your engineers. Without it, your case may well be lost for your client, and you may be contacting your malpractice carrier.
Settlement talks and the trial
GM never took the Soule case seriously. The defense lawyers and claims representatives literally laughed at us during settlement conferences. In the 1980s and 1990s in Orange County settlement conferences with the Court were always ordered a few days before the Master Calendar would send your case out to trial. Mediation was not considered an alternative at the time. The case had five settlement conferences because the trial date was repeatedly continued. At each conference the defense offer was always the same − “zero”. The defense always belittled Frank and me and kept telling us we were crazy to prosecute the case. A “zero” offer left us no alternative.
Finally, in the summer of 1990 around mid-June, the case was sent out for trial. I was 42 years old and Frank was 46. As I write this article, I will be 66 this year. Like the present drought we are experiencing, the summer in 1990 was very hot and dry for that year. We were assigned to the Fullerton Courthouse, Second Floor, Long Cause Calendar. Our trial estimate was at least 30 court days. The case lasted for three months before the jury finally rendered its verdict. We would work four days a week, Monday through Thursday from 9:00 a.m. to 4:30 p.m. Fridays were dark. By every Thursday, Frank and I were totally exhausted.
The demands of the trial were all-encompassing and totally physically and emotionally exhausting. I had no personal life and my practice was being handled by my paralegal, who ironically was able to settle one or two large cases to keep me going financially while I was in trial. Frank’s caseload was handled by his staff. We were totally engaged in the case. There was no turning back. In fact, the trial costs alone to include experts and other matters were approaching $200,000. If Soule had been lost, the firm would have had to shut down and close its doors. Everything was riding on a successful verdict in the case.
As mentioned earlier, we were very fortunate to have a terrific trial judge, James “Jim” Alfano. Judge Alfano was the most courteous, kind, respectful judge that I have ever appeared before in my legal career. I say this not because of the favorable outcome of the case, but because Judge Alfano gave both sides every legal and reasonable opportunity to present their case. Judge Alfano did not rule in our favor on every occasion, but he was always fair and explained the reasons for his decisions. He always had a calm demeanor, especially during the daily 402 hearings and motions the GM defense team constantly made.
We ordered “daily” reporter’s transcripts on a consistent basis throughout the trial. The scientific data was complex and significant, but the judge gave the jury every opportunity to understand what was being presented, from exemplars to medical evidence to detailed biomechanical testimony. Every Thursday the judge’s wife would bake and bring cupcakes to the jury, attorneys, and Court staff. It was our weekly relief. I was truly grateful as was Frank that Judge Alfano was our judge. Humor was a part of the trial as well. Frank and I both caught our pants and ripped our pockets on the exemplars in the well when we were dealing with witnesses and evidence. The jury would laugh with us when we did it and we also laughed at ourselves.
Also, in one part of the defense case, Frank and I received retribution for the way the GM team treated us. One of the GM engineers inadvertently brought his personal notebook to the witness stand when he was testifying. The defense lawyers forgot to look through the notebook because in the material were attorney letters to the witnesses to include case evaluation and settlement value notes. Judge Alfano allowed us to look through the notebook, and we found the material.
The judge, Frank and I were all smiling at each other as the defense teams were squealing to prevent the jury from hearing any testimony about the “evaluation” material. Frank and I both knew it would not come in as evidence and we did not want to mess up the record, but we did have fun with the witness and defense counsel. The judge laughed at what we did, but we never pressed to admit any of the material into evidence. By the way, after all of the “zero” offers, GM had evaluated the case at $250,000 settlement value. For whatever reason, GM never shared this information with us.
Today, Judge Alfano conducts mediations at Judicate West. He is still as gracious and courteous a gentleman as ever. Except for the jury-instruction issues raised by GM on appeal, none of his other rulings was ever challenged by the defense on appeal.
The jury was composed of 18 people, 12 regulars and 6 alternates. My recollection is we lost two people during the course of the long trial. Frank and I were very fortunate that in voir dire we discovered that because of the proposed length of the trial, many of the engineers who worked for Hughes Aircraft who resided in the Fullerton jury pool area could not be off work for a long time. Hughes Aircraft was a big employer for many of these individuals, so both plaintiff and defense agreed to discharge them from service.
This was very favorable to Teri Soule’s case since there was significant scientific data to be heard by the jury. Engineers often tend to be biased to the manufacturer and influence the other jurors in products’ cases. Fortunately for Teri, we ended up with postal workers, supermarket workers, housewives, a mechanic, retired people, students, and a California Lottery official. It was a great group of people and one of the supermarket workers was the jury foreman. On certain days of trial they would come dressed all in one color of shirt, i.e. all red, all green, etc. They were friendly and respectful to each other. After the trial and the verdict, Frank and I learned that the jurors were “with us” from the opening statement and Teri’s testimony. The defense had tried to “badger” Teri during cross-exam, and it backfired on them. Frank and I did not know this. We knew they liked us and smiled and laughed when we tore our pants on the exemplars. However, we never presumed and did not know if they would ever give us a verdict. Fear and hard work drove us.
Closing argument and jury instructions
The evidence presentation of trial ended on a Tuesday or Wednesday as I recall, and Judge Alfano put off closing argument to the next week so we could prepare our closing arguments and assemble the huge volume of evidence and work on jury instructions. Frank assembled five secretaries in our hotel suite to type up scripts and outlines of the closing argument. This process went on for hours and days. Frank and I worked round the clock putting everything together.
Frank literally thought up the final piece to solve the puzzle on the day of final argument. He asked his son to bring a sledge hammer and a cookie pan to court but keep it from being seen by the jury and the defense. Judge Alfano let us put the items in his chambers. When the time arrived, Frank stopped his argument, left the lectern/podium and went to the judge’s chambers and returned with the sledge hammer and the cookie pan. Frank gave me the cookie pan, had me sit in a chair just in front of the jury and told me to take off my left shoe. I did as requested. Frank then raised the sledge hammer and was prepared to strike the cookie pan that I was holding up next to my left foot. The jurors, the judge and the defense counsel all rose from their seats nervously watching to see if Frank was going to hit my foot with the sledgehammer.
Of course Frank did not strike the pan, but used the moment to describe how the broken/poorly welded bracket had allowed the front tire to move rearward and inward like a sledge hammer striking the floorboard (cookie pan) with such force to severely injure Teri’s feet and ankles. The argument was brilliant. The judge and jury were totally mesmerized by it, and the defense did not object. It was the dramatic moment of the trial and Frank and I smiled at each other. Frank’s argument lasted one and a half days including rebuttal. The defense argument lasted one-half day. Both sides rested and the case went to the jury. We were exhausted.
The jury instructions had been primarily my responsibility to prepare and propound. We used the old BAJI instructions since CACI did not exist then. Since the plaintiff had proceeded on both manufacturing and design-defect theories Frank and I concurred that the use of the consumer expectation and risk-benefit instructions were appropriate based on how we had presented the case. We used an all-inclusive format because we were not sure that simply because the bracket was defective from a manufacturing perspective that this would enable us to prevail at trial.
We went the extra yard to show how the Ford Mustang’s front end was superior to the Chevy Camaro and designed in such a way to strengthen the assembly unit, so that if a bracket broke, there were other parts that could have assisted and resisted the front tires from moving rearward/inward into the floorboard.
As the plaintiff’s representatives we actually presented this material. But today the burden of proof under the risk-benefit theory would most likely have been shifted to the defense. We did this out of an abundance of caution because we did not know where the defense planned to go on the function of the entire front end of the Camaro. In today’s environment the defense should be hard-pressed under the burden of proof required in the risk-benefit instructions language of CACI 1204.
Read the instruction carefully and in expert deposition lock the defense experts into what they intend to prove at trial on that issue. Your expert will need to address this, and if the defense does not come up with valid points to support the use of CACI 1204, bring a motion in limine before the trial judge to object to using CACI 1204 if the defense does not establish proof to use it. It will build a record on appeal as well.
In October 2012, I had the privilege and opportunity to co-try a products case against an auto manufacturer regarding a defective engine component part. The case went to jury and a defense verdict was rendered, the case went up on appeal and eventually settled under confidential terms. The plaintiff’s argument was to solely use CACI 1203/Consumer Expectations test based on the facts of the case and also that the defense had again not established any proof to use the CACI 1204/Risk Benefit Instructions. The trial judge refused to give CACI 1203 and insisted on using CACI 1204 after vigorous and strenuous objection and argument by the plaintiffs in the October 2012 case. My co-counsel and I felt that the trial judge had made an erroneous decision, which may have enabled us to resolve the case on appeal.
If you look at the CACI, use notes under Instruction 1203 and you will see there are case law notes that allow the trial judge to give both CACI 1203 and 1204 if there is any doubt about which theory should be used, and to let the jury decide. The case cited in the use notes is Soller v. Crown Cork & Seal Co. (2010) 187 Cal.App.4th 1220. CACI 1203 is the plaintiff’s instruction. Ironically, I learned after the Soule verdict that the only real reason GM appealed the verdict was to further cloud the product-liability instructions in “crashworthiness” cases, to diminish the use of CACI 1203, and to bolster the use of CACI 1204.
Press the issue hard in expert discovery to identify where the defense is going. Worst case scenario is to give both instructions if there is any doubt. Also remember, as Mr. Peters pointed out in his article, that the use of expert testimony does not preclude the consumer expectations test/jury instruction of CACI 1203. Soule clearly cites West v. Jackson (1985) 174 Cal.App.3d 831 for the proposition that expert testimony may be used even when proceeding with the CACI 1203 instruction. Don’t let the trial judge exclude your expert testimony if you are going to use the CACI 1203 instruction or force you to use only CACI 1204 if you have expert testimony.
The jury was out for 1 1/2 days, and we received a call in the Santa Ana office around noon that there was a verdict. Frank and I were devastated. We thought we were going to be defensed. How could they rule that fast after three months of trial? It was September 25, 1990. We entered the courtroom at 1:30 p.m. and the jury was called in. The foreman handed the verdict form to the clerk as requested by the judge. Frank was closest to the jury, I sat next to him and Teri sat at my right. We all held hands. The clerk read the verdict and the box was checked that GM’s product was defective. Frank squeezed my hand, and I squeezed Teri’s hand. The rest of the verdict was read and no comparative fault was assessed against Teri. Finally, the damage portion was read, and the award was $1,650,000. Teri groaned loudly, Frank pounded the counsel table, and I was in shock. The jury was polled 12-0 in favor of liability and causation and 9-3 for damages. The three who voted against the verdict damage figure wanted to award more money to Teri. Frank and I were absolutely elated. We moved outside to the hallway and talked to the jurors. Two news media representatives were there and news stories started. The rest is history. We had kicked GM’s butt and won a case no one expected us to win. Frank, Teri and I went back to the office. We danced, sang, drank wine and beer and went out for a steak dinner. I felt like I had just won the World Series. It was unreal and surreal.
The new-trial motions and the appeal came on us from GM like tidal waves. Frank hired Charlotte Costan as our appellate counsel. She wrote all of the briefs, but she did not argue cases, so the plan was that Frank would argue. On the day the case was argued, Frank was very sick, and I had to argue in his stead. The Court of Appeal ruled 3-0 unanimously in our favor. GM then successfully sought review in the California Supreme Court. The case was not heard until the fall of 1994 – four years after the verdict.
The Supreme Court heard the matter in San Francisco. Frank argued for Teri, and Bruce Broillet, Browne Greene and others were there arguing vigorously as amicus counsel on behalf of the Consumer’s Attorneys Association of California. The Supreme Court rendered a 6-1 decision with only Justice Arabian dissenting. The settlement check was finally issued on November 22, 1994. With costs and interest, the check amount was $2,373,041.05.
Soule has been cited in products’ cases for the last 20 years and will continue to be cited for years to come. It is the authority on the use of CACI 1203 and CACI 1204 in products-liability cases. I highly recommend to any trial lawyer, both novice and veteran, to carefully read the decision. It is an invaluable piece of work and shows how involved a complex-products’ trial can be. I am just glad I had the chance to be a small part of legal history and fought the good fight with a lifelong friend on behalf of a deserving tort victim.
This article was written on January 6, 2014, in the Jury Assembly Room at the Pomona Courthouse in Los Angeles County. It seems only fair that the author felt moved to tell this untold story while waiting with other potential citizens to be called to serve on a jury panel. The Seventh Amendment to the U.S. Constitution still stands as the essential element in our legal system that distinguishes the U.S. from all other countries in the world. Trial by jury remains the great equalizer in our society. Soule v. General Motors is truly the example of how the underdogs overcame adversity to score an upset of the big corporate interests. With hard work and dedication to serving our clients, all things are possible.
Copyright © 2020 by the author.
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