A spine injury resulted in paraplegia, and she sued VW, among others, claiming that the buckle in the Jetta was negligently designed and unreasonably dangerous.  The design flaw, her experts argued, was that the buckle became inadvertently unlatched during the right steer maneuver (the sharp right turn) when her elbow contacted the button, rendering her unrestrained during the crash sequence. 

Jeff Fertl and I represented defendant VW in trial (by the time trial started, all other defendants had either settled or been dismissed).  Dan Rottier and Don Slavik of Habush, Habush, & Rottier, one of the state’s preeminent plaintiffs’ firms, represented the plaintiff.

One of the major issues was whether the plaintiff had been belted at the time of the accident.  At trial, an Ozaukee County Sheriff’s Deputy testified that, during his investigation at the scene of the accident, the plaintiff had told him she was not wearing her seatbelt.  Conversely, a passenger in a passing Yukon testified that he had observed the plaintiff wearing her seatbelt just before the accident occurred.  In addition, the plaintiff’s friends and family testified that “she always wore her belt.”  The defense called a human factors expert to discuss factors affecting observation, cognition, and recall, and to demonstrate the amount of time the eyewitness would have had to observe the belt. 

The trial lasted three full weeks before Judge William Brash, and the jury finally came back with a verdict late on Friday afternoon.  The jury, answering the damages question, found $18 million in damages (in closing, the plaintiff requested that the jury award about $27 million), including past and future medical expenses, past and future pain and suffing, and loss of earning capacity.  However, to the first question on the verdict, “Was the plaintiff wearing the available occupant restraint system at the beginning of the crash?,” the jury answered “No.”   In the end, the defense ended up winning on this factual issue, and the issues of product defect and negligence never came into play.

It was an exciting trial, if long, with some of the best lawyers I’ve ever seen in a courtroom, and it was rewarding to be part of the process.  Certainly, Dan Rottier is one of the most highly-regarded plaintiff’s lawyers in the state, and Jeff Fertl tried as good a case as I’ve ever seen.  Congratulations also to the men and women of Volkswagen, whose product has been vindicated.

The plaintiffs sought to alter the standard products liability jury instructions that use the words “user” or “consumer” to include the words “or bystander,” effectively introducing a bystander contemplation test mirroring the typical consumer contemplation test.  The circuit court refused, instead adding the following:

The law in Wisconsin imposes a duty on a manufacturer to a bystander, if the bystander is injured by a defective product, which is unreasonably dangerous to the ordinary user or consumer.

After reviewing multiple cases cited by the parties, the court determined that no case addressed the issue of whether a bystander contemplation test existed.  More importantly, it decided that the consumer contemplation test is the proper standard for all strict products liability cases:

We hold that the consumer contemplation test, and not a bystander contemplation test, governs all strict products liability claims in Wisconsin, including cases where a bystander is injured. While bystanders may recover when injured by an unreasonably dangerous product, the determination of whether the product is unreasonably dangerous is based on the expectations of the ordinary consumer.

Interestingly, Justice Gableman, who authored the majority opinion, adds a concurrence in which he argues that:

it is time for this court to adopt the Restatement (Third) of Torts: Products Liability § 2(b) (1998) in design defect cases.

Justices Prosser and Roggensack join in his concurrence, and Crooks, while part of the majority, writes to express his displeasure with Gableman’s going beyond the main scope of the parties’ arguments and discussing a “sea change” in Wisconsin law (although he’ll support the change, as his concurrence in Godoy v. E.I. duPont shows).  All in all, a very interesting read.