Carmaker had denied having policy for excess verdicts; truth revealed after a full day of voir dire
The start of a two-week trial over alleged seat belt defects in a Ford Explorer came to a dramatic halt this week when a Cobb County State Court judge tossed the carmaker's top two lawyers from the case because they withheld information about the company's insurance coverage.
Judge Kathryn J. Tanksley revoked pro hac vice orders on Tuesday for D. Alan Thomas and Paul F. Malek, both of Birmingham, Ala.-based Huie, Fernambucq & Stewart. The firm has represented Ford Motor Co. around the country for years, particularly in the Southeast and especially in cases related to the Explorer.
The ejection of Thomas and Malek leaves the defense of Ford in the hands of its local counsel, Michael R. Boorman and Audrey K. Berland of Huff, Powell & Bailey. As the pair pleaded with Tanksley to postpone the trial so they could get better prepared for a case in which they had been assisting, family members of the 15-year-old boy killed in the accident at issue appeared distraught at the prospect of waiting longer for a resolution to their claims.
Boorman had been the one to deliver the news on Tuesday that the car manufacturer carried insurance policies for excess verdicts, contrary to a what the defense wrote in the case's pretrial order: "Ford objects to any reference to an alleged insurer of Ford. Ford has sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages in this action, if any."
On Wednesday, Tanksley said Ford's belated admission required her to scrap the jurors who had gone through a full day of questioning because they were not screened to see if any carried policies with Ford's insurers or had other financial conflicts of interest.
"I find this very disturbing," the judge said. "In Georgia, you can be disbarred for doing what Mr. Thomas did in this court."
Thomas told the judge that he learned of the insurance carriers only Tuesday morning. "In no way did I intend to mislead this court," he said.
Malek added that the lawyers did "make a good faith inquiry" about insurance coverage and believed no policy would apply until receiving an email that morning.
"The court is not persuaded by this resuscitation," Tanksley replied. "In fact, it's almost insulting."
Asked if he'd like to discuss what happened as the lawyers left the courtroom, Thomas said, "I'd love to. But I don't think it would be appropriate."
Marcey Evans, Ford's corporate news manager, said in an email response, "It is our policy not to comment on pending litigation."
The judge's unusual action against the defense attorneys came as an answer to a motion from opposing counsel J. Antonio DelCampo, a former DeKalb State Court judge who left the bench in March to become the newest partner in the plaintiffs' firm Harris Penn Lowry DelCampo.
On Tuesday, DelCampo asked the judge to strike Ford's answer to the lawsuit as a sanction for the insurance information. Tanksley scheduled a hearing on the motion for Wednesday afternoon, but then delayed it at defense counsel's request. After defense arguments for even more time, Tanksley rescheduled the hearing for 9:30 a.m. Monday, after which she will decide whether to restart the trial then or reschedule it for later.
DelCampo's clients in the case are Janice and Donald R. Young II, whose 15-year-old son Donald R. "Deebs" Young III, died after a Ford Explorer rolled over on April 18, 2004. The plaintiffs allege that the boy was killed by a malfunctioning seat belt.
Deebs was wearing his seat belt, but the other two occupants of the 1998 Explorer were not. Yet they were ejected from the vehicle and survived.
On Wednesday, the boy's mother left the courtroom weeping during a break following discussion of pushing the trial to August or September. DelCampo told the judge that the father is scheduled to begin cancer treatment in three weeks and had hoped the trial would be finished first.
The family and many witnesses had come from out of town for the specially set trial, DelCampo said. The Young family and the plaintiffs' legal team all wore blue wristbands inscribed with the words "Forever Young" in Deebs' memory. The wristbands came from a fundraiser for what is now called Deebs Young Memorial Stadium at the boy's former middle school in Greensboro, N.C.
"I'm as disappointed and saddened as anyone here" by the delay, Tanksley told the courtroom.
The information that triggered the revocation—the names of insurance carriers protecting Ford against high-dollar verdicts—could be important in showing how much the company could pay in this case and others.
But the information also was required by Georgia law to be stated in the pretrial order and used in jury qualification, according to the judge and lawyers on both sides.
Because Ford's lawyers revealed the names of the insurance carriers after a full day of voir dire, which began Monday morning and went on until 7:45 p.m. that night, the judge had to release the jury, effectively calling a mistrial.
The plaintiffs' lawyers had requested the insurance information several times in discovery, including in a hearing weeks ago and even again on Monday. The defense gave no insurance company names, saying that Ford's assets were sufficient to cover any judgment resulting from the case.
But on Tuesday, Boorman said that Ford's lawyers had learned that morning that the company does have verdict insurance carriers. "Ford is self-insured up to $25 million, but then there are excess coverages that are very complicated," Boorman said.
Under questioning from the judge and opposing counsel, the defense did not say who wrote the email revealing the insurance coverage or who received it. But on a direct question from plaintiffs' lawyer Stephen G. Lowry, Boorman named six insurance companies: Zurich US, Zurich UK, Hanseatic Insurance Co., Swiss Re, AISLIC and Star.
At the plaintiffs' request, the judge ordered Ford to provide a corporate representative for a deposition to find out what insurance coverage the company has, how much of that information Ford shared with its lawyers and when the lawyers found out about it. Boorman then asked the judge to seal the deposition, asserting that the information relates to attorney-client privilege. Tanksley granted the request to seal the deposition. Even the name of the Ford representative deposed was kept out of the record. However, the deposition was discussed in court the next day.
On Wednesday, DelCampo told the judge that from the deposition, the number of known Ford insurance carriers grew from six to 12. The others were not named.
Although Wednesday's hearing was scheduled for the plaintiffs' motion to strike Ford's answer to the case, it turned into an argument over whether to grant the defense motion to delay the hearing and the trial. The discussion put Boorman and Berland in the unusual position of pleading their own lack of experience and preparation.
"I'm not capable of adequately representing my client in this short time," said Boorman, now lead counsel.
"Mr. Boorman, you've been a member of the bar for several years," said Tanksley, who reminded Boorman that he had tried other cases for Ford even in her courtroom. "I have found the work you and Ms. Berland do to be equal or better than any other lawyer."
The judge also noted the age of the case—seven years. "This case is very old," she said. "We need to go forward."
The plaintiffs' attorneys pushed against delay. "If we don't go forward, we're rewarding Ford," DelCampo told the court.
But Boorman and Berland repeatedly asked the judge for more time, or at least more lawyers to step in and help them. The judge told them Thomas and Malek could sit behind the rail to give them information but that she would not permit any more out-of-state lawyers in this case. She said she would be willing to entertain a motion for another Georgia lawyer, but said she was not "inclined to admit anybody at this point."
When Boorman and Berland again protested that they lacked the experience and preparation to try the case without their now-ejected senior specialists, the judge replied, "This is your opportunity to become one of those people."
The case is Young v. Barrett, No. 2010 A 4415-4.
