Products cases can be intimidating. There’s a monster defense with an unlimited budget, it’s going to be a cage match until the end, and there are no guarantees of success. So you have to be willing to go the distance. 

In this episode of Colorado Trial Lawyer Connection, host Keith Fuicelli is joined by experienced products liability attorneys Brad Holmes of Bradly J. Holmes, PC and Mike Blanton of Gerash Steiner Blanton, P.C.. Brad and Mike recently obtained a verdict of over $56 million ($45M of which in punitive damages) on a product defect case against Ford Motor Company in federal court in Colorado Springs.

Tune in as Brad and Mike discuss making product defect claims against automakers, how to rebut defensive theories, and Ford’s ongoing bad behavior that led to the punitive damages award.

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☑️ Brad Holmes | LinkedIn | Email

☑️ Mike Blanton | LinkedIn | Email | $56M Verdict Against Ford

☑️ Gerash Steiner Blanton, P.C. on Facebook & Twitter

☑️ Keith Fuicelli | LinkedIn

☑️ Fuicelli & Lee Injury Lawyers Website

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Episode Snapshot

• Getting to know Brad Holmes and Mike Blanton
• Background facts of Brad & Mike’s $56 million products liability verdict
• Punitive damages in products liability cases
• Defendant’s ongoing bad behavior leads to large noneconomic and punitive damages
• Overcoming defense theories in products liability cases
• Motion practice and jury instructions in products liability cases

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli, as we uncover the stories, strategies and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now. Welcome everyone. Keith Fuicelli here and I am super excited to host another episode of the Colorado Trial Lawyer Connection and I am so excited about this episode because we have Mike Blanton and Brad Holmes here to talk about a $56 million verdict that they obtained in federal court in Colorado Springs of all places, and it might be a record setting verdict, I think it is, against Ford Motor Company on a product defect case. So I am so excited to have both Mike and Brad here, especially because I have so many questions to ask. So with that, thank you Mike. Thank you Brad for being here.

You're welcome. Our pleasure.

So before we jump in, I always like to find out a little bit about you all personally. So Mike, let's start with you. How did you become a trial lawyer involved in product liability auto defect cases?

I actually cut my teeth as a baby lawyer working for an auto products firm, but that's not what I've done for the past 30 years, at least not all the time. About half of my practice is appellate work. I do appeals, it's working with other attorneys. I do appeals all over the country, state and federal courts. As an outgrowth of that, a number of those attorneys through the years have started using me for consulting on more complex cases. Cases like this where they'll say we're getting closer to trial, we now have Daubert motions and we have summary judgment motions and we'll have motions in limine and they'll bring me in to handle all of that, all of those legal fights for them and often as in this case, to go to trial with them to kind of handle all of the legal skirmishes while we're at trial to have all of the battles about instructions, the rule 50 motions. It's just something I've kind of fallen into through the years and really enjoy

It. Sounds fascinating. Brad, what about you? How did you get involved in this area and line of work?

Well, it took me a while to get here. I cut my teeth as a plaintiff's lawyer on environmental cases, suing most of the oil refineries in Wyoming and sort of serendipitously I got into pharmaceuticals. I was doing the F pen cases, the MDLs, some product or medical device litigation, and then I got into automobile litigation with regards to mostly seatbacks or parked reverse type cases. It happens for me when I associate, these are cases that are way too big for me to take on my own. So I generally would associate with a national firm. Usually it's a firm out of either San Francisco or I've done a fair amount of work with the current firm that we're talking about today, the Texas Lawyers and Company. So that's how it happened. It was not really a plan, but it sort of took on a life of its own

And I know that we were speaking before we came on air, but you have a solo practice involving that handles these in my mind, monstrous cases. You're talking about MDLs cases against medical device automobile manufacturers. How do you handle that and is the answer you just associate with really good national firms?

Yeah, that's the answer and it's evolved over time. I frankly don't know they found me, I didn't find them, but I think people oftentimes look at what's on dockets in places they're going to file cases looking for people who have done same or similar work and by luck or by happenstance, I've fallen into relationships with a number of those firms and that's carried me through the past 23 years I think because they are difficult to fund and they are difficult to staff. So it's certainly more than I would handle on my own.

It's fascinating. I think for our listeners who are generally Colorado trial lawyers, probably a lot of people trying premises and car crash type cases, what would be your advice to someone like myself? I get a call that comes in, it's a roof crush case or a rear end backup case. Who's the first person I should call? Maybe besides yourself, what do I do when a case comes in that is a nine figure case? What do I do to not mess it up?

Well, I mean I don't know how you find these people. Like I say, I've been lucky enough that they found me. I could give you some names of who I work with, but I'm not sure that's really the most convenient or optimal way for you to do so. As far as CTLA is concerned, I read the listserv. I'm looking for people who are doing these kinds of cases. They would be my first calls.

One of your other first calls should be to be sure that you have preserved your vehicle a nightmare. And we actually had, it looked like a great case last year that the client had settled for the property damage with the insurer who then took the car and crushed it,

Which I love. One of the things I love about doing these podcasts is I feel like I learned so much every single time and I will confess to everyone that Mike and I spent about 20 minutes chatting about this case before and I feel like I learned so much. And so the great bullet point here is if it's a potential product case and there are significant damages preserved the vehicle, did I get that right?

That's what I think of as step one in a product. I'm sure Brad would agree.

Of course, that's what we should do. The problem often in these cases becomes in the case we're going to talk about later, that was her only vehicle. She was not going to get rid of it, but she was going to continue using it. That became one of the sort of defense arguments that we had to deal with at trial. If this vehicle's defective, why do you keep using it? Why did you not stop using that type of thing? But for sure, yeah, you want to keep the evidence because you're going to have to spend a fair amount of money and time figuring out what the problem was.

Alright, well let's talk a little bit about the facts of this case and I'll sort of cut to the chase. This was a $56 million plus verdict, not including interest in federal court in Colorado Springs. Brad, do you want take the lead and just give the facts of what we're talking about on this case and we can go from there?

Sure. This case occurred, the injury occurred on December 27th, 2016 when our client, LRE Thompson pulled up to her mailbox to get her mail and got out of the vehicle. There was a nice patch in the road that she slipped on. She slipped under the car after a period of time. There's some dispute about how long car jumped into reverse, rolled over her leg, continued rolling down the street with her, I think 9-year-old grandson in the backseat at the time. He jumped out of the vehicle because the car's moving without a driver. It ends up stopping in the landscape rock on some neighbor's yard, several houses down the road. EMT was called. They responded. Her leg was crushed and essentially everything flows from there. She's been in treatment since 2018? Yeah, she's been in treatment since 2016, probably going to end up losing the leg at this point.

Am I correct that she ended up with complex regional pain syndrome as a result of this injury?

That's what she's struggling with today. Yeah, they've done these spinal cord stimulator, they've done injections of ketamine, they've done everything that they can think of and they're out of options at this point.

She's looking at a leg amputation. Is that what I heard you say?

That's the only other thing they can think. Either she has to continue to live with Crips or she needs to attempt to resolve it by amputation.

So strange question, A horrible choice to have a horrible choice and I'm assuming all of this came out during trial. These are her options and this is just ignorance on my part, but is there any risk of amputating the leg and then having phantom pain so that the same pain exists even when you amputate the leg?

That was discussed by the medical experts and yeah, there's certainly a risk of it, but it's not getting any better. In fact, I think it's getting worse. The spinal stimulator is not working. They're sort of out of options. I think what we all discount is the idea that she's in pain from the moment she wakes up to the moment she goes to sleep and she doesn't sleep much and it's just a horrible way to have to lift.

What can you tell our listeners about CRPS, either Mike or Brett that if they're not familiar with complex regional pain syndrome, what do the listeners need to know?

Yeah, I mean as I understand it and I'm not a doctor, but it's really miswiring in the brain when you have significant nerve injury in a portion of your body, the brain doesn't know how to deal with that and it ends up in essence sending constant pain signals. I mean, to a person who has no familiarity, I would say imagine maybe not the most extreme pain you've ever had, but some pretty extreme pain. And then imagine that your brain is telling you 24 hours a day you're experiencing that pain right now, even if there's nothing going on with a particular limb or whatever part of your body. I mean I mentioned this to your earlier Keith, one of the most compelling ways, one of the experts at trial, actually one of her treating doctors and when counsel asked, tell us about CRPS, what is that? And he said, it's the worst thing a human being could have. And I thought that was very compelling because people do, they grossly underestimate what it means to be in significant pain. I mean not always talking 10, but we're talking seven, eight, maybe nine on the pain scale all the time, day in, day out for your entire life. It's an awful

Thing. Was there dispute in your case about whether your client actually had this condition? I understand that sometime the actual diagnosis of complex regional pain syndrome can become hotly contested.

Well, oddly enough, I think we can probably get into this later, but there was no really dispute as to medical evidence because they didn't have any experts. They apparently were banking on the idea that this was going to be a liability only case and they didn't get into damages at all. So the only damaged testimony that there was damages from her treating physician and really her treating physicians

Great. It's kind of a nice segue into a question that I have, which is I understand that this was a Texas firm that brought you all in to help try this and it was an eight day trial. My question is how all encompassing is a case like this? Is it the kind of case that you almost have to associate with a firm that has done these types of cases and tried these types of cases? Or is it simpler than it seems

There's such crazy expensive and specialized cases that it's frequently a good idea to consult. But aside from that, while all trials are consuming, I think these cases are particularly consuming. I mean I wasn't in the case for the whole five years. As I said, by the nature of what I do, I tend to come in a little later in the game. I spent weeks doing nothing but briefing in this case. I mean know what was going on. I know when we were in a trial schedule, I don't think there was a night where we were not till midnight getting ready to do whatever briefing we had to have for the next day. So they're extremely consuming cases and just the preparation involved in the team effort is really required.

Yes, it is all consuming, but you have to remember these are marathons as well. This case was filed on December 26, 20. It was five and a half years before we got it to trial. We went from US District Court in Colorado to eastern District of Michigan. I don't know how much detail you want on that, but Ford Motor Company had some success at the circuit court level arguing that the proper venue for these types of cases was either where the vehicle was manufactured or where the vehicle was first sold. In this case it was a used vehicle, so it was sold in Florida, so our choices were Florida or Michigan. We ended up in Michigan. We ended up with a senior judge who passed away during the dependency of the case. Sort of got lost there for a couple years. It came back to Martinez, but then it was with Cato Cruz and then Cato got elevated and then we got Judge Brasswell. So we went through a number of attorneys or judges and then a very long, long time from start to finish.

What was the sort of procedural mechanism to get it from Michigan back to Colorado? Just the most convenient?

Well, what happened was the Ford case that was driving or I'm not sure if it was driving it, but the United States Supreme Court took cert on, it was called Montana versus FMC. They reversed and found that specific jurisdiction could exist where the accident occurred. So at that point we filed a motion to transfer and it came back, but we had to go through that whole process in order to get back where we belong.

And Mike, is this briefing that you were, was this prior to your involvement in the case or is this sort of what you spent months doing?

That was prior to my involvement in this specific case. I'm very familiar with the issue that Brad's talking about though this argument. And it's not just Ford, it's all of the major auto manufacturers. This argument that it's only where we build the cars or where we initially sell them. They've been doing this for years. I've been involved in a number of appeals where the battle was conflict of law because that's frequently how it will come up.

So why don't you give a quick breakdown, Mike, of what that verdict was in terms of economics, non economics, and I understand you had a very large punitive damage award.

So the verdict, we had four categories of actual damages. We had 1 million in past economic losses, 1.575 million in future economic losses, 4 million and noneconomic and 5 million in permanent impairment and that comes to roughly eight to 9 million. In addition to that, we had 45 million in punitive damages. And as I indicated to you when we were talking before we got on Keith, we haven't gotten a pre-judgment interest yet. Pre-judgment interest in this case because it's gone on for so long, is essentially going to double the actual damage number. And that's important because that's also the number that will be used for calculating punitive when we get to that battle.

You and I did speak before and something that I learned that was new to is in considering either the one-to-one ratio or three to one ratio on punitive damages. And I do want to cover that. Am I correct that you add pre-judgment interest to the award and then you go with the one-to-one or three to one should the court allow it?

That's absolutely correct. You essentially treat pre-judgment interest as part of the actual damages and then that is the number you use to calculate the punitive damage cap. So you add in the pre-judgment first and then you double at least if you get kept to the one-to-one ratio, you would double whatever that number is once pre-judgment interest comes

In. So two questions I have for you at the risk of looking foolish, the first is, is it obvious that Colorado law applies to the non-economic damage cap as that goes back to that choice of law? And then the second is when you're talking about the one-to-one cap on punitive damages and when that can be exceeded and by how much, could you explain to our listeners how that works for those that are fortunate enough like yourselves to receive a monstrous punitive damage award?

In terms of the Colorado law question, I believe that is correct. I don't believe that was an issue that was ever really challenged in this case. But from doing other product liability litigation, usually against companies outside of Colorado, I don't know if you're familiar, we actually have a product liability act. So a lot of it's statutory in Colorado. Certainly all that law applies, but then you refer to the normal damage caps and in this case there would be two different caps that are in play, the non-economic cap and then the punitive damage cap. And in both instances there's the ability, while people are familiar with the caps in the first instance that you're limited to a certain amount on non-economic and for punitive you can essentially double whatever the actual damage was. Both statutes allow for the court to raise that cap. For non-economic, the court can double the amount of non-economic damage. In this case it would be 4 68 something under the normal cap, it would be about nine 30 if the court allows us to do the full increase under the non-economic cap. And then for punitive, while the normal rule is one, one-to-one the statute allows for the court to allow punitive damages that are up to three times the amount of actual damage.

What does the court look at in determining tripling of the punitive damage award? Is it the same thing as you're talking about when it comes to doubling the noneconomic damage award?

It's different, but the short answer is there's not a great deal of case law in Colorado regarding tripling the punitive damage award. Maybe it makes more sense to start with the noneconomic because there is a fair bit of case law in Colorado about that. Although the normal rule caps noneconomic damages, the legislature understood that there can be cases where the nature of the damages or the way people experience those damages can be so severe that that cap should be increased. And so when you're having that argument, it's generally an argument about the severity and it tends to be a forward looking argument. It's not so much about what the damage was in the first instance, but it's how is this going to affect this person's life going forward for the next several decades? It tends to be that type of emphasis. And so while courts have broad discretion to make that call, they can look at that type of evidence and decide the normal cap is simply not enough here.

We should allow the full amount, which under Colorado law all the court can do is allow you to double the economic punitive damages. The statute itself speaks in terms of conduct it's ongoing during the course of the case and that can mean different things. There are a few cases that can mean things like a defendant actually engaged in nefarious conduct during a case horrible discovery abuse or there's a case where basically the defendant was defaming the plaintiff during the case. I mean it can be misconduct like that, but it can also be that they're simply continuing to engage in this exact same bad conduct that they've been while engaging in and that is the subject of the action. And in that case, I think that's where we fall because there was a long history of Ford being familiar with this defect or similar defects. They knew they had a problem going back to probably the eighties, certainly by the time of this car's manufacturer, they knew they had a problem.

They had told their own dealers they had a problem the year after, but they never told the public, they never did a recall, they never did anything to address that problem. So they knew they had a problem and they essentially kept it secret and they've continued with that same behavior. The evidence at trial showed that even though this is an older vehicle, it was a 1998 expedition, there is still 50,000 of these vehicles on the road today. That means there's 50,000 people out there driving around in a car that may be dangerous and they don't know that and that's important. And so Fords continued that same misconduct throughout even a day. Ford's story is there's really not a defect there.

So Brad, question to you is what is the specific defect at issue and then I'm curious when we talk about recalls, if a manufacturer issues a recall, does that shield them from liability?

Well, with regards to the specific defect, I can show you what we were using at trial. This is a bushing that goes on the shift tube that should be held in place by a bracket like this.

And for our listeners, we're looking at, I mean this looks like a pretty run of the mill rubber hose and a little metal bracket thing. It looks, it's not complicated

Exactly. I don't have the shift tube handy, but it would be on a cylinder that's probably eight inches long and it's supposed to be in place. In this case it was an older vehicle. When the inspection occurred, we found that the bushing had slipped down out from under the bracket due to wear and tear and was down in this area of the shaft of the gear shift. At that point, the whole shifting mechanism becomes loose. The driver is unable to tell which gear it's actually in. If you're familiar with, they call it prindle, it's parked reverse neutral and drive on your shifting mechanism in the car. What would happen in this case and others, the person thinks they shifted into park, but instead it lands on a ledge in between park and reverse, then it can be dislodged by engine vibration, other movements and it's not securely in park.

And so then it can go into a powered reverse if it tends to fall into the reverse side. That was the defect at issue. Another important fact is these bushings are non maintenance parts of the vehicle. They should never require lubrication inspection. They're supposed to last for the life of the vehicle. They'll argue how long the life of the vehicle is, but in this case it was around 200,000 miles when this happened. It's a relatively simple defect, but it's not rare. There are a number of other similar incidents that are reported throughout this case and probably as Mike said, starting back as early as the eighties in various different types of transmissions but the same kind of problem. I mean they're aware that it's a problem that you can't be sure that it's in park when you think it's in park, even if the needle of the indicators shows that it's very close to or in part. So that was the nature of the defect,

Just important for people to understand because as Brad noted, it's a non maintenance item. It should lasts the lifetime of the vehicle, but it's also an item that nobody would ever lay eyes on. It's down in the middle of your steering column. Neither you nor your regular mechanic would even see that anything was wrong usually until the defect manifests.

And so your client gets out of the car and you mentioned powered reverse. Is it just the idling power that just she gets out of the car slips and falls and maybe hit the car or something that goes in reverse?

We don't know exactly what the mechanism was that made it go into reverse, but what we do know is that the shifts was on the ledge in between the park and the reverse. It somehow shifted an idle, it wouldn't be moving. I mean this was essentially a flat street and just regular friction between the tires and the road would not have required it to move. It slipped into reverse and when it's in power reverse, it's the engine driving the wheels that drove it up over our client's leg. The curb ended up against the rock that was in the neighbor's yard. So it's a fully powered reverse. It's not drifting, it's not coasting, it's being driven by the engine.

You mentioned the ongoing nature that Ford continues to do that as being a reason to invoke tripling the punitive damage award. And my first is, is that information, I'm assuming that was provided to the jury and what was it that Ford continued to do and what should they have done?

I mean I think the story the jury got was again from the eighties, Ford understood that there's various names, but call it unintended movement. There are unintended movement incidents where people think they've put their car in park, they get out of their car and then their car starts moving. N-H-T-S-A National Highway Transportation Safety Administration did a study back in the eighties and what they identified 23,000 of these incidents, I think there were 700 that caused injuries and over 40 deaths from these injuries. So Ford had general knowledge of the issue. Now that's across the spectrum of vehicles. I don't want to misrepresent, that's not all Ford Expeditions, but that's a variety of Ford vehicles. Subsequently, Ford had much more detailed knowledge about exactly what was going wrong with this particular vehicle. It's exactly what Brad was describing. They knew they had a problem with this bushing wearing sliding out from under the bracket and sliding down the shift tube. They even knew how to fix it In 2000 I believe it was, they implemented a change to the shift tube where they added a rib to the shift tube to present the bushing from sliding down, but they never told people who already had the old version that they needed to get that installed in their car. They just let those people keep driving the car with a dangerous shift.

Was it an easy fix? Like should they have just recalled the cars and had people bring it in and just fix it?

The experts testified that it's literally pennies in materials. It's a very easy fix, both the bushing and the shift. It's not a difficult fix. And Ford, I mean the simple fact is they didn't tell people. And as Brad said, not only do we have all of that, there are other similar incidents. As Brad noted a number of instances with this precise vehicle or at least this precise design where the same or very similar things happen. One of them even involved somebody at their mailbox, very similar facts. So courts known about all of this. They knew about it generally in the eighties. They knew about it in detail in the nineties and even today, even with the other similar incidents, the way they approach those other similar incidents is they blame the driver. They say, you must have done something wrong. There can't be anything wrong with the vehicle. And I think the jury was frankly offended by that as they should be. And again, it's that recalcitrance and that's what leads to tripling punitive damages. I think it's that continued recalcitrance and just refusal to even acknowledge that there might be something wrong in the face of overwhelming evidence.

Tell me a little bit about what the 30 B six depositions looked like in a case like this because I'm just fascinated once you eventually get some Ford engineers into a deposition room, what are the depositions like? I dunno, Brad, do you want to take this?

Really the only 30 B six that we did as far as I know was a guy named Phi. I can't remember his first name. This is a guy, he's second generation Ford, his parents for Ford, he works for Ford. He is an engineer and he actually did some work on transmissions, but now he's basically their in-house testifying expert. When you're deposing somebody like that, they're very difficult to pin down, not going to ever give you that they did anything wrong. Problem is this case had been going on so long, I don't really have that good a recollection of exactly how the 30 B six went, but I'll tell you, he wasn't helpful to us and that's what he gets paid to do.

An interesting aspect of that though, there was another case in Colorado, was it in oh nine? Was that when the Bean case was Brad

The Bean case? Yeah.

So there was another lawsuit in Colorado involving this exact same defect. It was a 97 vehicle instead of a 98 there. And the jury in oh nine or whenever it was found that this vehicle was defective for this exact same problem. So again, Ford had precise knowledge of what the problem was and in that case they had a different corporate representative, Fredrick King who was much more forthcoming and we were able to a limited extent to use that at trial because when Mr. F would say one thing is Ford corporate representative, we were sometimes able to point out board's other corporate representative said the opposite 15 years ago.

And an interesting fact on that was also that in large part it was the same trial team, the same experts that they were running out. In our case, it was the same lead lawyer, certainly Hugh Malden I think. I'm not sure who else was their expert, but it was pretty much the same cookie cutter case,

The same road show they take for all of these cases. Yeah,

Mike and I were talking about that before we started recording and Mike was mentioning that it seemed like you were able to effectively show how this is what Ford does. They just bring in the same team, same expert, say law firm, whatever. So either Brad or Mike, how were you able to paint that picture for the jury?

Well, I know on Cross on Malden and is it Harley I think was

By the way, Malden was their defect expert and Harley was their human factors expert,

Right? All came out in cross.

Fantastic. And what was the general defense to this? Is it we met industry standards, we the federal government okayed us, there's nothing wrong human error. What was sort of the overall defense on why this was not a defect

Defective all of the above. We met standards. This was industry standards. It must've been plaintiff's fault. They spent much of the trial. They didn't have their own accident reconstruction, but they challenged ours. Their story was that the car was just in reverse. She never put it in park and she got out of a moving vehicle and the jury was not buying that. They pushed that story through the entirety of the trial. Another thing they really latched onto is that when she pulled up at her mailbox to get her mail, because all of us have done hundreds if not thousands of times, she put on her parking brake and she left the engine running. And Ford says, and our manual tells you every time you get out of your car, you should put your parking brake on. Always. That's news

To me. Every single time

It turned your car off. And it wasn't news to Ford because even though they pushed that story, it came out of trial that Ford was well aware of studies showing that 80% of people never use their parking brake. Ford's own prior corporate rep, Frederick Ke in the bean trial test agreed that he will get out of his car without using his parking brake. So although that's a story Ford push that it was really plaintiff's fault if she had just done all the other things, we told her to do this when it happened. The reality is Ford knows people, I mean, who puts their parking brake on every time they park. And this was like Brad said, it's a flat surface, less than one degree of grade. I mean it's an extremely flat surface who puts their parking brake on that surface. But Ford spent the entire trial trying to convince a jury that that was really what went wrong, that she didn't put her parking

Way. As I'm sitting here hearing this, I am thinking, well, it's no surprise why you received the verdict that you did because it seems an interesting trial strategy to say the least. Tell us a little bit about the venue. So Colorado Springs Federal Court, tell us a little bit about the jury and the judge and the venue in general.

Love the jury. I don't know if you've heard this fact or not, but it was going to be eight women at least. I was not sure how that was going to play. I think sometimes women can be hard on women. I was concerned that they might think, well we're different than that or we're smarter than that or we're better than that. They were not. They took full account of her injuries and what she had been through and were courageous enough to bring this verdict, which I'm not sure if any of them, most of us have not had experience dealing them with these kinds of numbers. And to be able to put a $45 million number on punitive damages was very, very courageous and I really admired them. With regards to the judge, she had been Assistant Attorney General in the labor and employment area, relatively new appointment, I believe it was her first trial.

She was excellent at trial. She seemed to have control of the courtroom. She didn't always rule for us, but she didn't rule with any arbitrary us. I mean, she had reasons to rule how she ruled. The courtroom itself is a very compact little courtroom and it was interesting. I've been in bigger courtrooms and you can kind of get lost in them. This one was intimate. I was sitting at council table, I was within four feet of the jurors and they would march in every day. We basically never make eye contact, which always makes me worry, but they did the right thing.

Did the jurors give you what you asked for specifically punitive damages first and what was your damage model for the punitive damage piece of it?

Well, the damages in the closing was done by Tony Busby, who's an excellent lawyer out of Texas. He offered a range of puny between zero and 90 million. I believe he argued about a bell curve and they gave him what the bell curve would indicate would be between those two polls. Mike, I don't know if you have a different recollection or can add anything to that.

No, I think that's right. I mean, Tony is a great lawyer by the way. I want to be sure we don't overlook the Laer, Ketchum and cocoon firm in Texas. They're great lawyers. I've had the pleasure of working with Brad Laer on several cases. Excellent job. But going back to the closing argument, I think Tony did try to find a few things to Hank Ron. He talked about the fact that there were 50,000 of these vehicles still out there. The jury might think of that. He talked about the fact that Ford's devoting all of its attention to trying to prevent these cases rather than just doing the right thing. So I mean, he tried to suggest things to him, but I think he was very forthright in saying to the jury, you have to decide what's the appropriate basis for picking this number. I can't tell you what it should be. He did emphasize to him the purpose of punitive damage

And he was also not shy about reminding them that this was oral Thompson's only shot and she has to go back and live her life in a very difficult situation. And I think it sent it home to them and I think they were able to give a fair verdict.

Sure, sounds like it. Mike, you had mentioned that there were interesting issues on jury instructions. I understand you were sort of neck deep in the motions practice of this case. So what can you tell us about jury instructions and motions practice in a monster case like this?

So we had our pretrial hearing the Friday before trial, and we spent most of that arguing about instructions and we continued to argue about instructions until about an hour before closing when the judge finally told us what the final instructions would be. The way I think of it, there were the big four, there were four instructions that Ford was pushing to use. I dunno if you're familiar. So this goes back to the Colorado statutes and the product liability law. There's two possible presumptions that they were pushing for. One, that the statute speaks about a 10 year presumption that if a product has been in use for more than 10 years without any issues, that the court can give a presumption instruction regarding that that can be evidence of no defect. Now it's not a binding instruction, it's just some evidence that's given to the court, but product manufacturers really like that.

Let me ask you a question about that. Is it this specific car, this specific expedition, or is it any expedition? Because I'm sort of hearing you say there were problems with other Ford vehicles with this same defect.

It's this specific product. And so for argued that the court should give the 10 year presumption instruction while not in the statute itself, the Colorado Supreme Court has interpreted the statute as meaning that 10 year presumption does not apply when the product has previously been found to be defective through other litigation. And in our case, again, we were fortunate enough that being case a jury in oh nine had found this exact vehicle line defective for this exact reason. And so we argued to the court, the presumption doesn't apply here pursuant to this Colorado Supreme Court case, it's the Tane case, Colorado Supreme Court. And then the 10th Circuit had adopted that same standard in a case called Helmer. And Board argued that the analysis from Obtain and Helmer was just dicta that the courts really didn't mean what they clearly said. And the judge did it by that and the judge ruled the tenure presumption didn't apply here.

Another presumption, again, under the same statute, there can be a presumption when a product has complied with applicable codes or regulations, usually federal codes or regulations that can be lead to a presumption of no defect. And Ford argued in this case that there were several federal motor vehicle safety standards for four different ones actually that it had complied with and that it deserved to have a presumption instruction. But because of that, the language of the statute specifically speaks in terms of applicable codes and the presumption is going to be a presumption of no defect. An argument to the court is if it's a presumption of no defect, then an applicable code is a code that involves the design of the exact components at issue and fort's. Problem was they had already admitted that these codes that they were relying upon really went to their defense. It's not to the primary issue of defect, but then at trial they tried to say, but it also relates to defect, your Honor, and the court agreed with us. It's not just compliance with any code. If you're going to give a presumption of no defect, it needs to be a code that's pretty close to exactly addressing the thing that's at issue in the defect. And that wasn't true here. So the court,

I actually want to dive into this deeper. So I get that Ford comes in and says, the federal government, whomever it was certified, this is a safe vehicle or whatever it is. Therefore we get a presumption. So help us understand a little bit more. Help me, I've never done an auto defect case. Let's say I want to make my own Tesla in the garage and I want to go take it to market. Who do I have to get to give me the, okay, I can go take this car to market? And does that mean that every single piece on the car is reasonable because the federal government says it's reasonable? So help me understand more.

So for instance, we call 'em F-M-B-S-S, federal Motor Vehicle Safety Standards, F-M-V-S-S standards. There are many of them or hundreds of them applying to many different aspects of a vehicle. I mean, as you know, there's 10,000 plus pieces in a vehicle on average I think. And auto manufacturers love to focus on that and say, well, there's these federal standards and we meticulously complied with the standards. The problem is there isn't a standard for everything. Just because they complied with all of the standards doesn't mean that there was a standard that addressed a specific thing at issue in this defect. And for case that was true, there were lots of F-M-V-S-S sections that applied to this vehicle that there was no F-M-V-S-S that addressed this shifting mechanism or this problem. And so because they agreed with us that they didn't get a presumption instruction, and by the way, not just auto manufacturers, my firm does quite a bit of product liability work in general with all sorts of different types of products.

Manufacturers love these presumptions. This is usually one of their weed defenses because if they can convince the court this presumption applies and an instruction is given to the jury and then they can tell the jury, you can see it right here in the instructions, it's presumed that this product wasn't defective. That's why they fought so hard to try to get those presumptions in this case. And that was one of the things I'm proud of. We were able to shut them down on both of those presumptions or did not give either presumption instruction in this case. There was one other instruction, again, under the product liability statutes, there's a statute that talks about misuse of a vehicle and in limited instances, misuse of a product can provide a complete defense.

Okay, what does misuse mean and how did your client allegedly misuse the vehicle?

I mean, if you go back to the case law, it's usually crazy things like somebody's suing because their vacuum cleaner was defective, but they were using their vacuum cleaner to beat down a door while the defect manifested. They were doing something nobody ever expected to be done with that product. But again, manufacturers love this because if they can convince the court that statute applies, it's an absolute defense, you're done. It's not even, but it rarely applies because one, it comes down to foreseeability and the statute itself says it only applies if the misuse is unforeseeable. What

Was the alleged misuse of your client here?

You'll be shocked to know that Ford argued that she misused the vehicle because she did not set the parking brake and she left the vehicle running when she stepped out of it to get her mail. The evidence was clear in this case that drivers do that all the time. That's not unforeseeable, if any. Again, a study shows 80% of people never use their parking brake. So if anything, it's foreseeable that people won't, that's what you should expect. That's what you should design for. And I should say, even if that statute doesn't apply, misuse can still be considered as part of comparative fault. It's under the statute. And that's why it's so rare because it's under the statute. They're trying to get it to be a complete defense, not simply comparative default. And in this case, the court right way found the things that Ford were saying were misuse, were imminently foreseeable. Again, board knew about them easily. You had known about them for decades. So the court allowed evidence or argued throughout the case that she had misused the vehicle, but it was simply taken as part of the comparative fault. The court didn't allow an absolute defensive misuse. And I don't think we've mentioned so far, but the jury gave plaintiff 0% fault in his Well, I

Was just going to ask. I was taking from what you're saying that there was comparative fault allegation. She's on the verdict form, and it was a 0% comparative.

It was.

And Brad, what do you think? Was it a strategic mistake for Ford to come in and blame your client for how, I mean, I'm hearing that she drove her vehicle the same way all of us drive vehicles.

I think it was, but I think it's their go-to, they're always going to blame the driver. They're never going to accept any responsibility. That's just the way they are. Maybe they'll change if they get a few more away, but I do think it was, and I don't think they're necessarily unique in that way. I've had cases against Chryslers. It's always the same. It's always something the driver didn't do or they didn't read the book or they didn't put it in emergency break. All this stuff that nobody does, they know nobody does it. There are actual ways to address it, but they don't do that either. I think it's a strategic error, but I think it's this mindset that's the way they've always done it and it's worked out for them, kind of okay. Until we get some of these rolling in, maybe that'll change the minds. But they're awful big company and they have a lot of money and time to do these fights, I guess.

And in my mind, I'm just hearing sort of this monster defense, unlimited budget, unlimited depositions, unlimited motions practice. It sounds like they're sort of relying upon just beating down plaintiffs that don't want to take the chance at trial. Are you allowed to talk about were there any pretrial settlement discussions or is this a zero offer case and see you in trial?

I'm not sure if we're restricted to talk about, I'll talk about 'em in a general way. There were no significant offers. We were forced to go to a settlement conference and we did, and I think we made a demand and they made an offer and then we were done that kind of a thing. But as you probably suspect that these cases cost a lot of money and unless you're going to put a real offer on the table that will leave something for everybody, there's no point in negotiating. And they were never even close to dealing with what we had into the case and what Ms. Thompson would take away even if we could arrive at a number. So it was not significant, and it was that way throughout. Even when we were in Michigan, the judge that we were in front of was trying to get somebody to move somewhere. And at that time, what would've in retrospect been a very bad offer of what we might be willing to talk about. And it was never responded to. So it was never going to be that this was going to get resolved short of trial. And of course now we'll face some appeals going forward. Sure.

What a fascinating empowering story. Mike, let's start with you. If people want to reach out to you, how do they get ahold of you? Because I'm hoping that some of our listeners have cases like this and they don't want to muck 'em up. So how do they get ahold of you to chat with you about it?

Best way to reach me usually is email mike@gsbattorneys.com. If you don't get me, you'll certainly get one of the folks in my firm will get to me. You were making a point a minute ago, Keith. I mean, in this type of case or in this level of case, it is a different ball game. One example that leaps out to me is whenever we would have legal arguments in this case, board had brought their appellate attorney to trial with them and she would stand up and make the legal arguments. And thank goodness plaintiff in this case also had an appellate attorney, me to stand up and make those arguments. That's not your normal case, but that's the level of the litigation, that's the type of thing that's going on in these types of cases.

And Mike, we didn't cover it, but tell us a little bit about your firm. What's the name of your firm?

Rash Steiner Laning. We do a variety of stuff on the civil side. I tend to specialize in complex litigation like say any given time easily. Half of my work is actually consulting with other attorneys across the country, either handling appeals for them after the trial or once they get to know me more and more often they'll bring me in pretrial and may help them avoid appellate error and get geared up for trial. So I do a fair bit of that in various places. Again, I've had the pleasure of doing that with Brad Laer in Texas a few times now. In addition to that, in-house, we do a lot of products, liability, a variety of products, premises liability. My partner Eric Steiner is a former doctor, so we certainly do some medical malpractice. So pretty broad spectrum of civil litigation. My partner Dan Esh and I also do civil rights litigation. About half of his practice is criminal defense, and between the two of us, we kind of bridge that odd gap of civil rights cases where it's kind of half criminal law, half civil law, half civil litigation. And so we will find a bit of that as well.

Got it. And did I hear Gar, is there any relation to the famous

Yes, he's the son of Walter Garh. I am sad to say I came after Walter's time. My wife and I moved to Colorado in 2011, and I joined with Eric Steiner and Dan Garh about five years ago. So I never got to know Walter. I have certainly heard the stories. And even today when I meet somebody new and say, I'm Mike Bland with Gar Steiner Bland, and the first question out of their mouth is any relation to Walter? And I go through the story. So

I just want to ask about, wasn't he the United Bank, the bank robbery case?

He defended? Yeah, he defended.

And Brad, what about you? If people want to reach out, how do they get ahold of you?

Best way is email@homeslawcomcast.net. I'm available, I'm around. I'll be glad to talk to anybody. Probably continue down the path on some of these product cases. Also involve currently in an MDL on a medical device, just basically reiterating what I've done in the past. Although each of these, it's almost like starting over again and you're going to learn that particular defect and these particular issues. And so it doesn't completely transform, but there is some economy to doing things that you've at least got some familiarity with. That's where I'm at.

Well, I'll tell you, the one takeaway for me is besides nine figure product, case walks in my door, but if a nine figure or even eight figure or even seven figure product case walks in my door, I'm picking up the phone to someone like y'all because it seems so intimidating and so overwhelming. Is that a wisdom that all lawyers that are not intimately familiar with product cases should adhere to?

Well, I do think you need to know what you're getting into before you get into this fight because it's going to be a cage match to the end. And just shout out one more time to Brad Leger for having the guts to take this case and write it all the way through, because he and I have done cases in the past, and so we knew one another, but this is a long, long road and very expensive and no guarantees of success, and they're not going to settle easy or for a lot. So you got to be willing to go the distance. And so if you're willing to do that, and if you're brave enough, I say, come on in.

Well, I cannot thank both of you for just a wonderful conversation and congratulations to you and your client for holding forward accountable. It really just is so inspiring. And thank you both so much for taking your time to join us. And until next time, I'm Keith Fuselli. Thank you again, Mike Blanton, Brad Holmes, and we look forward to seeing you again on the next Colorado Trial Lawyer connection. Thank you,

Keith. Thanks Keith. Thank

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