How the Best Attorneys Win Cases
- August 14, 2010
- by John Uustal
In the case of Andrea Robin Alvarez and Kevin R. Alvarez v. Nissan Motor Company, Ltd., a Florida jury deliberated for four days and handed down a verdict of $3,472,000 in January, 2003.
On Friday night, Ms. Alvarez was driving home from work when she rounded a large, gradual curve. As she made her way around the bend, her car went off the road; reacting, Alvarez steered the car back onto the road, overcompensating for the error. At this point, according to her attorney, John Uustal, her 1993 Nissan Pathfinder tipped over onto the driver’s side and slid for a long distance. Alvarez’s arm was crushed in the accident and was consequently amputated.
“Two of the key documents in the case were not produced by Nissan, but were found through alternate avenues.”
The defense in this case argued that Alvarez caused the accident by the way in which she steered the sports utility vehicle. According to Uustal, the defense position was that, “No sports utility vehicle can be designed so that it does not overturn just from steering”.
Uustal conversely argued that “vehicles should and can be designed in such a way that they do not overturn solely based on a driver’s steering while on a flat, level, paved roadway”.
The statements made by Nissan and their counsel would come back to haunt them.
Uustal recalled that the case “started out as a fight between the experts”. The defense claimed that the plaintiff’s wheels were off the road when she turned over. Uustal maintained that she tipped over while on the road. He said, “All four tires were on the road when she turned over”.
During the cross-examination of a Nissan engineer in deposition, the expert admitted that he had done a “J-turn”, or rollover, test in the mid-1980s – at the
“(T)he document showed that Nissan had knowledge that it was possible for a vehicle to be designed so that it would not rollover based on the way it was driven.”
same time that the Pathfinder went on the market; the vehicle failed. The SUV tipped up and hit the outriggers. Uustal pursued this information and had the defense produce the two-page Japanese document that confirmed these failed test results.
Two of the key documents in the case were not produced by Nissan, but were found through alternate avenues. Uustal explained that Nissan has a “document retention policy” that requires the company to mandatorily destroy documents after certain periods of time. The “smoking guns” that Uustal submitted into evidence had to be found through other means. According to Nissan, the company was not even sure if the documents belonged to Nissan, even though the Nissan name appeared on them.
Through tenacious research, Uustal found one document that had been submitted to the National Highway Traffic Safety Administration by a former disgruntled Nissan employee; the other was a paper presented at a conference by Japanese Nissan engineers in Germany in the 1970s. This thirty-year old experimental safety project stated that the Nissan vehicle “has over-turning immunity.” In other words, the document showed that Nissan had knowledge that it was possible for a vehicle to be designed so that it would not roll over based on the way it was driven. According to Uustal, this was a “crucial document” in the case.
The plaintiff’s attorney did not stop at the unearthing of key Nissan documents. He assembled a team of experts, including engineer David Renfroe and test-driver Rob Hooker, to prove that the 1993 Pathfinder could roll over based on the way in which it is driven. They accomplished this goal by doing their own rollover tests and creating modifications to the SUV’s structure.
The new modifications included a wider track and a lowered center of gravity. With the new designs, the vehicle did not roll over. According to the defense, what Uustal’s team accomplished was impossible. When this demonstrative evidence was presented at trial, the defense argued that the tests were rigged.
Amazingly, before the trial started, Hooker received a call from the small wheel company that Uustal had used to create the vehicle modifications. Nissan had called them and purchased the alternate design used in the test, shipping parts to Japan for Nissan’s own use.
During the trial, the defense admitted that they intended to use the modifications, but claimed that they had not done rollover tests using the new parts. Uustal’s ongoing questions to the jury were, “Where are their rollover tests? Why wouldn’t they have tested the new modified vehicle for rollovers? It doesn’t make sense”. He believed that the jury did not buy the defense claims.
According to Uustal, “A big part of the case was whether the car was off the road or on the road”. He also spent time presenting photos of the modified vehicle to show that it was, indeed, still an SUV. (The defense had tried to claim that the modifications altered the vehicle so that it was no longer an SUV.)
His closing also focused on the issue of damages and a description of Andrea’s current lifestyle without her arm. Finally, he discussed his theme for the case: Nissan’s credibility, or lack thereof. “The whole defense argument centered around the idea that it was impossible to build a vehicle a certain way. But we did it. Then, they shipped our idea to Japan, but they didn’t do rollover tests?”
“The whole defense argument centered around the idea that it was impossible to build a vehicle a certain way. But we did it. Then they shipped our idea to Japan …”
Plaintiff’s counsel felt that he was working with a “tough jury panel”. Uustal added, “The general opinion on the jury was that ‘SUVs roll over more than passenger cars; everyone knows it; if you don’t want them, don’t buy them.’” In fact, Uustal went on to say that the case was “up in the air until the bitter end”. He was never certain whether his client was going to win her case until the verdict was read.