Sunday, September 25, 2005
Will $18+milliion verdict against GM stand up in the Supremes?
Neb Supremes hear GM appeal of $18.6 million rollover verdict Associated Press; Supreme Court website case summary cites GM's alleged error in seat belt instructions and evidence of other roll-overs. General Motors wants the Nebraska Supreme Court to vacate an $18.6 million award to a Lincoln woman who was paralyzed from the neck down in a rollover crash. The high court will hear arguments Oct. 7 in a case involving Penny Shipler, 38, of Lincoln, who was paralyzed in 1997 when the Chevrolet Blazer in which she was riding left U.S. Highway 34 near Lincoln and rolled several times. Her attorneys argued at trial that Shipler would have escaped such serious injury had General Motors’ Chevrolet division built the 1996 Blazer with a sturdier roof. “In that single moment, Shipler turned from a vibrant 30 year-old woman, actively caring for her three young children, to a wheelchair-bound invalid facing a future of helpless paralysis and continuing debilitating pain and depression,” said Shipler’s lawyers, Dan McCord and Michael Piuze, in briefs submitted in the case. On appeal, GM argues that the jury award “resulted from passion and prejudice.” GM also argues that Lancaster County District Judge Steven Burns committed several errors, including refusing to allow the jury hear evidence that the driver of the Blazer, Kenneth Long, had been drinking before the accident. GM argues that Shipler was negligent for knowingly riding with him. GM also says that Burns erred by allowing Shipler’s lawyers to introduce evidence of approximately 40 other Blazer rollover accidents that happened under markedly different circumstances. GM also says that when the jury was deadlocked after several days of deliberations, Burns told them “a deadlock would be disappointing and a waste and reminded them that only 10 jurors need agree.” “Three days later, the jury, 10-2, returned a nearly $20 million verdict,” said GM lawyer Frank Hinman in briefs submitted in the case. GM also argues that Burns erred in the jury instruction used in the case. “It was all improper under Nebraska law and constitutionally out-of-bounds,” Hinman said. “The case went to the jury with erroneous, inconsistent, confusing instructions, and deteriorated from there.” In a friend-of-the court brief filed by the Nebraska Association of Trail Attorneys, lawyer Jeffry Patterson discounted GM’s argument that Shipler should have been held partially negligent for riding with Long because she knew he had been drinking. He said that conflicts with state law and “GM’s duty to produce a reasonably crashworthy vehicle.” “Given the proof at trial as to the enormity of Penny Shipler’s loss, it is simply impossible to conclude that the jury reached its decision by way of something other than the evidence,” Patterson said. In another friend-of-the-court brief, the Product Liability Advisory Counsel argues that Shipler should be held partially responsible for her injuries. “This court has held on several occasions that when a plaintiff such as Shipler knew or should have known that the driver was intoxicated, the plaintiff’s choice to ride with the driver violates her duty of care and is a proximate cause of her injuries resulting from an accident,” wrote attorney Mark Olson. Shipler also sued Long. The award was made jointly against General Motors and Long. Long sustained broken ribs and other injuries. Authorities later charged him with driving while intoxicated. The Nebraska Supreme Court case summary outlines the errors as: FRIDAY, OCTOBER 7, 2005, subject to call at 9:00 a.m. S-03-1472, Penny Shipler (Cross-Appellant) v. General Motors Corporation (Appellant) and Kenneth Long Lancaster County, Judge Steven D. Burns Attorneys: Jeanelle R. Lust, Rodney M. Confer (Knudsen Berkheimer) and Frank M. Hinman, Thomas S. Hixson, Mary Lee, Rianne E. Nolan, Marc R. Bruner, David M. Heilbron (Bingham McCutchen LLP (for Appellant General Motors Corporation) ---Dan L. McCord (McCord Burns) and Michael J. Piuze (for Penny Shipler) Gail S. Perry, Jenny L. Panko (Baylor Evnen Curtiss Grimit & Witt LLP) (for Kenneth Long) --- Jeffry D. Patterson (Bartle Geier) (Amicus Curiae Nebraska Association Trial Attorneys) --- Gregory D. Barton (Harding Schultz & Downs) and Mark S. Olson (Oppenheimer Wolff) (Amicus Curiae Product Liability Advisory Council, Inc.) Civil: Tort--Product Liability Proceedings below: A jury returned a verdict in favor of Shipler against GM and Long, jointly and severally, in the amount of $19,562,000. The trial court reduced the verdict by 5% to $18,583,900. The court ordered GM to pay pre-judgment interest of 7.052% per year. Issues: The trial court erred in (1) effectively directing a verdict for Shipler against GM, Long or both; refusing to give GM’s proposed defense verdict form; and denying without notice to counsel, the jury’s subsequent request for a defense verdict form; (2) instructing the jury orally, not in open court and without notice to counsel; (3) giving an Allen v. United States, 164 U.S. 492 (1896) “dynamite” instruction to the jury; (4) barring GM’s contributory negligence defense and the evidence relevant to it; (5) refusing to permit the jury to allocate liability for non-economic damages in proportion to percentage of fault; (6) excluding evidence of Long’s intoxication relevant to his comparative fault and Shipler’s negligence in riding with him; (7) excluding evidence of Shipler’s seatbelt misuse, relevant to contributory negligence and injury causation; (8) admitting evidence of dissimilar incidents; (9) admitting opinions of an advocate on GM’s supposed intent to undermine Federal Motor Vehicle Safety Standard 216 for standards for roof strength; (10) giving improper and misleading jury instruction that FMVSS 216 is a federal regulation without explanation that compliance is required by law; (11) failing to strike the award for future wage loss; (12) giving the instruction regarding Shipler’s collateral source benefits; and (13) upholding the jury’s verdict. Issues by Appellee Long: The trial court erred in (1) giving a limiting instruction to the jury regarding Shipler’s quadriplegia and in refusing to permit the jury to allocate damages between Long and GM based on which injuries were caused by the conduct of each; (2) denying Long’s multiple motions to dismiss; (3) instructing the jury as to the possible verdicts that could be rendered and in failing to provide the jury with a defense verdict form; (4) failing to strike the award for future wage loss; (5) in giving a limiting instruction regarding Shipler’s collateral source benefits; and (6) upholding the jury’s verdict. Shipler’s Cross-Appeal: The trial court erred in reducing the jury’s award by five percent.
Posted by stan_sipple at 7:51 AM