Attorneys used lessons from Moe Levine and Gerry Spence for an outstanding trial outcome.
Every trial lawyer knows that our most memorable trial outcomes are not the ones with the highest verdicts, but the ones that overcome the steepest odds. These are often cases that begin with zero-dollar offers, or cases with injuries that are temporary (or difficult to prove). They present challenges that even seasoned attorneys may find intimidating.
Trial Guides wishes to congratulate the attorneys at the Simon Law Group on a phenomenal recent verdict on just such a case in which he drew heavily from Gerry Spence’s Be Who You Are, as well as concepts from Moe Levine on Advocacy, to reach this astonishing outcome.
Case Type: Product Liability
Plaintiff’s Attorneys: Gabe Houston (lead), Travis Davis, Robbie Munoz and Robert Simon (founder, managing partner, and trial director for the Simon Law Group).
Location: Orange County
Injury: fracture of his femur, patella, and foot
Jury Verdict: $11 million in compensatory damages, $150 million in punitive damages
In June 2013, Thomas Joseph (“Joey”) Soulliere was riding his recently purchased motorcycle down a public road when an SUV driver pulled out of a parking lot directly in front of him. Joey had sufficient time to brake to avoid the SUV, but Joey’s bike, a 2009 Suzuki GSXR 600, contained a defect within its front brake master cylinder: a defect which had been known for years by its designer and manufacturer, Suzuki Motor Corporation. This resulted in sudden and complete front brake failure, and a violent collision with the other vehicle.
Joey’s injuries included fractures in his right femur, right patella, and left foot. The patella injury was severe, requiring multiple surgeries to treat burst ligaments and infection. Joey also developed orthopedic injuries in his right shoulder and lower back, and continued to have chronic pain in his legs for years.
The Suzuki Brake Master Cylinder Defect
The defect within the front brake master cylinder is as follows:
By design, mixed metals—steel spring and zinc piston—immerse in aged brake fluid, and are hydrated by normal use. That, plus an improperly designed exhaust port, leads to corrosion within the system. This corrosion can cause a gradual “spongy” brake reduction, and it can also cause solid zinc formate which can wholly interrupt the piston’s seal, causing total loss of braking power. (Suzuki has only ever acknowledged the “spongy” effects of the defect, and this calculated yet erroneous distinction was a direct reason for their successful appeal following the first trial.)
Suzuki received their first report of brake failure in May 2007, six years prior to Joey’s crash. They initially chalked it up to maintenance issues, but as complaints continued to pour in, Suzuki began to investigate. By December 2012, Suzuki was internally discussing the severity of the defect: “My understanding is that it is very dangerous. . . . Due to the nature of its content, it is a recall matter. It is a matter that involves human lives. Prioritize it.”
Unfortunately, despite the defendants’ knowledge that a recall was necessary, they decided that the upcoming sales season was more important. From a February 20, 2013 email: “[We] want to avoid the spring season (March-May), when dealers are extremely busy, to start the field action as much as possible. There is a concern that it could have a negative impact on retail sales if they are too busy with the action in a sales season.”
Months after Joey’s crash, Suzuki still had not implemented a recall; rather, they were internally discussing their inevitable liability for future product liability lawsuits. From an August 9, 2013 Sales Report: “Generation of hydrogen is a fact, and we think we must do it now that we found out about it. In case a PL [lawsuit] happens and asked if we knew, we would have only ‘Yes’ [as an answer].”
In October 2013, Suzuki finally implemented the recall, identifying the defect present on all Suzuki motorcycles of the GSX-R 600 and 750 series manufactured from 2004-2013 (and the GSX-R 1000 models made between 2005 and 2013). But again, Suzuki’s recall only acknowledged the “spongy” brake, i.e., gradual loss of braking power. They wholly ignored the reports of sudden brake failure, and certainly did not admit in the recall that such failures could occur from the corrosion caused by the defective brakes.
While Suzuki’s carefully crafted recall was being coordinated, they were also taking steps to severely limit their liability in the United States. The wholly owned subsidiary of Suzuki Motor Corporation, American Suzuki Motor Company (who had distributed Joey’s bike), filed for bankruptcy in November 2012. A week prior, a new corporation, Suzuki Motor of America, Inc., was formed. Through the bankruptcy process, Suzuki Motor of America, Inc. purchased the entirety of the former American Suzuki Motor Company, in an effort to limit product liability against the newly formed company. Despite this transaction, nothing really changed. Top officers maintained their roles, and the exact products continued to be distributed. Employees even continued to use their same business cards from the now-defunct company.
It was with the above plan that Suzuki Motor Corporation was able to limit its liability here in the United States. Indeed, in Joey’s case, Judge Frederick Horn (retired) granted summary judgment in favor of Suzuki Motor of America, Inc. on the grounds that he could not collaterally attack the bankruptcy court’s approval of the purchase agreement. Thereafter, Joey was left to continue his battle against Suzuki Motor Corporation only.
The 2018 Trial and First Appeal
In 2018, Joey’s case went to trial in Judge Glenn Salter’s courtroom in the Superior Court of California, County of Orange. Gabe Houston of the Trial Lab and Thomas Feher of The Simon Law Group were Joey’s trial attorneys. They put on an amazing case, and obtained a verdict of $7.5 million (just over $6 million of which accounted for punitive damages). Costs and interest were added to the judgment.
Suzuki moved for JNOV, arguing in part that Joey failed to connect his crash with the recall condition. In response, the plaintiff’s team argued that such a connection could be made through motorcycle engineering expert Jeff Hyatt. (In pretrial proceedings, the trial court found that Jeff Hyatt lacked the requisite metallurgy qualifications to link the corrosion stemming from the defect to the zinc particulate formation, although the court did indicate that Hyatt could opine on what effects a solid particle, like zinc particulate, would have on braking capabilities. Ultimately, Hyatt was not called at trial).
In January 2019, Suzuki appealed the judgment. The appeal was fully briefed and orally argued. On December 8, 2020, the Court of Appeal, Fourth Appellate District, found that certain evidence was erroneously introduced, and remanded to the trial court for further proceedings. As to the evidence, the court found error in: 1) the trial court’s refusal to admit Joey’s alleged statement to the responding officer that his brakes “locked up”; 2) the trial court’s instruction under CACI 204 (willful suppression); and 3) the trial court’s admission of evidence of the recall. Based on these errors, the appellate court vacated the judgment.
However, because of Suzuki’s post-trial JNOV, and the plaintiff’s offer of proof regarding Hyatt’s connection between the crash and the recall condition in response to that JNOV, the appellate court remanded for the plaintiff to make such an offer of proof. If he could, a new trial would be granted. If not, “judgment in favor of Suzuki on all claims.”
Remand, Grant of New Trial, and More Appeals
Following the appeal and remand instructions, the plaintiff team got to work again. While the court had precluded Hyatt from opining on the formation of hard particulate in the brake system, the plaintiff team needed to establish that foundation in order to present his opinions on seal disruption.
Fortunately, Suzuki’s years of documentation of the various customer complaints contained numerous examples of hard particulate formation in the brake systems. Being careful not to violate the rules of evidence, including Sanchez concerns—but also cognizant of the wide range of materials that can be properly relied upon by expert witnesses—the plaintiff team presented an offer of proof via a new declaration of Jeff Hyatt. Travis Davis, partner at the Simon Law Group, then presented an oral offer of proof to the Court. It was highly contentious, and was witnessed by no less than a dozen Suzuki attorneys and executives. Following the oral offer of proof, the parties fully briefed the evidentiary and other issues. Ultimately, on October 8, 2021, the trial court granted a new trial.
Following the grant of a new trial, Suzuki took a writ and filed an appeal; both were denied. Suzuki then petitioned the California Supreme Court to review the denial of the appeal, and this, too, was denied. A new trial was imminent.
The Trial Team
Leading the 2023 trial was Gabe Houston, who had originally brought this case to the Simon Law Group, had tried the 2018 trial and knew every detail of the case. Gabe Houston heads the Law and Motion Department at the Simon Law Group, and he was prepared to address the significant evidentiary issues which were ever-present at trial. Robbie Munoz, associate trial attorney at the Simon Law Group, brought the passion and human component to Joey’s story.
Jenelle Davis, the lead paralegal, brought the perfect level of organization and dedication to managing an overwhelming file with constant pleadings, various vendors, and numerous expert witnesses. Tonyalyn Hawley, paralegal, expertly organized the massive trial binders, and Akram Al-Ziab, of Rackico, provided technical support.
The 2023 Trial
A product liability case requires many expert witnesses, and this case was no exception. The plaintiff team had an accident reconstructionist, motorcycle riding expert, motorcycle engineering expert, NHTSA expert (regarding expertise in recalls), an orthopedic surgeon, a neurosurgeon, a life-care planner, an economist, and a metallurgist (along with percipient experts necessary to lay the foundation). A lesson learned from the first appeal prompted the team to retain an expert metallurgist to make that crucial connection between the “recall condition” and Joey’s crash; they made that connection at trial.
Gabe Houston masterfully directed all liability witnesses. This was a case that he knew intimately, and that was clear. Travis Davis handled all pretrial and in-trial law and motion, briefing the court every other day—and, on occasion, every single day—guiding Gabe and Robbie on the looming evidentiary pitfalls from Suzuki’s successful first-judgment appeal.
Robbie Munoz handled all damages witnesses. He truly let Joey’s pain and story come through. One significant hurdle was the ten-year gap between the crash and this new trial. Joey was admittedly tired of the legal process and had to continue to live his life, active but living with the pain. Robbie was able to convey this realistic aspect of Joey’s journey. In his rebuttal, Robbie presented a simple yet powerful message: “It’s important to talk about the difference between listening and hearing. People can … hear things in passing, but listening takes effort. Listening means you are actually seeing that person. You’re actually paying attention to that person. Suzuki may have heard. They may have heard Joey. But they have never listened.”
Trial Guides Titles in Action
Be Who You Are
Gabe Houston is a graduate of Trial Lawyers College, and Robbie Munoz was an intern there in 2019. “We both utilized the Spence teachings in connecting to the jury,” Munoz explains, “in being our authentic selves, and doing our best to empower the jury at every phase of trial.”
In what Gerry Spence considered his finest lecture ever recorded, Be Who You Are is a moving lecture on how to be a great lawyer both in and out of the courtroom.
Be Who You Are is available on audiobook, DVD, CD and as an On Demand video.
Moe Levine on Advocacy
“I first learned of Moe before law school and did all I could to gather his work,” Munoz explains. “I was listening to some of the clips of his Historic Recordings in the days leading up to my rebuttal in closing argument. Listening to Moe allowed me to create themes that I believe were impactful and resonated.”
In the end, the jury awarded exactly what the plaintiff team asked for in compensatory damages: $11 million. Phase two then occurred, which consisted of a short stipulation of the financial status of Suzuki Motor Corporation (about $33 billion in sales annually). Gabe then put on a seriously compelling closing argument, asking for a range of $92 million to $337 million (representing a day of sales and 1 percent of annual sales). The jury believed in Joey, and, equally as important, believed that Suzuki was wrong to hide their dangerous and deadly defect from the public, and awarded $150 million in punitive damages.
“We undoubtedly expect post-trial motions, and possibly another appeal,” say a team representative, “but we will never stop fighting for our client.”