Plaintiffs' opening says seat belt killed teen; Ford's lawyers ask jurors to keep sympathy out of decision

The Ford Motor Co. product liability and wrongful death trial delayed for eight days by problems that led the judge to toss jurors and the company's lead lawyers started over Wednesday with a new jury and debut performances of sorts by two attorneys in opening statements.

For plaintiffs Janice and Donald R. Young II, whose 15-year-old son died after a rollover crash in a Ford Explorer, J. Antonio DelCampo of Harris Penn Lowry DelCampo made his first opening statement since he stepped down in March after nine years as a DeKalb County State Court judge.

DelCampo went straight to the point: Donald Ray Young III, nicknamed Deebs, "was taken from us because the device that was supposed to keep him safe—his seat belt—literally killed him."

The defense started out this way: "We are proud to represent Ford Motor Company, but we are not happy to be here."

Speaking for Ford was Michael R. Boorman of Huff, Powell & Bailey, who had been local counsel assisting Ford's lead lawyers until June 14, when Cobb County State Court Judge Kathryn J. Tanksley revoked the Alabama-based lawyers' pro hac vice orders. Boorman and his associate, Audrey K. Berland, protested that they were not prepared to try the case alone, but the judge dismissed their objections with praise for their past performances in her courtroom.

The revocation came after a full day of voir dire when the defense team said Ford unintentionally had withheld information about the company's insurance coverage—information required by Georgia law to be disclosed so that jurors could be screened for potential financial conflicts of interest.

DelCampo asked the judge to punish Ford by striking its entire answer to the suit, but Tanksley on Monday sanctioned Ford by precluding the company from defending itself on one of the plaintiffs' claims: failure to warn of a seat belt danger.

On Tuesday jury selection began anew, and the panel was chosen Wednesday morning and sent to lunch, while the lawyers continued arguing over logistical issues. Boorman renewed Ford's objections to the issue preclusion and also sparred with plaintiffs' counsel and the judge over the exact wording of instructions to the jury regarding the precluded issue: Ford's duty to warn of a seat belt danger.

"We can't argue everything to death. Everything is not important," Tanksley said, adding that she feared counsel will find "when the important stuff comes before the jury, you've run out of time." She also said that with so much quibbling over words, "I worry about your ability to get the full picture across to the jury."

Boorman replied, "I worry about that, too, your honor. And words are important."

For his opening, Boorman said he would quote from the early 20th century U.S. Supreme Court Justice Oliver Wendell Holmes: "Sympathy is one of the human's greatest virtues, but in the courtroom it is an unwelcome visitor."

Keeping that visitor out presents a challenge for the defense. In the opening statement and with early witnesses, the plaintiffs' counsel portrayed Deebs Young as having a lasting effect on people. A teammate and a coach from the hockey team for which Deebs was playing the day he died described him as an honor student, a gifted athlete and a charismatic leader who once approached a rival hockey team from Florida in a hotel lobby and turned a tense situation into a celebration of new friendship.

With instructions from the judge as well as Ford's defense to keep sympathy out of the decision, the jury will for the most part be focusing on the allegation of a seat belt defect.

The Explorer's seat belt was front and center literally in the jury's view during the start of the trial. The plaintiffs' team wheeled in an actual seat with the belt and a roll bar and parked it in front of the jury during DelCampo's opening.

DelCampo told the jury that the shoulder portion of Deebs' belt did not lock and hold his torso in place as it should have in the crash. Instead, DelCampo said, the belt spooled out 20 inches.

With the top portion of the belt loose, the lap belt "tore through his abdomen, his intestines, his back muscles, all the way to his spine," DelCampo said. "The seat belt cut right through him."

DelCampo also told the jury that the other two occupants of the Explorer—the driver and co-defendant David R. Barrett, and Barrett's son Josh, Deebs' hockey teammate—were not wearing their seat belts and survived because they were ejected during the rollover.

"The one that was wearing a seat belt—the one that was doing the right thing—perished, and perished in a terrible way," DelCampo said.

In deflecting the fault from Ford, Boorman said, "We're here because we make good cars and trucks and when someone accuses us, we take it very seriously."

Boorman suggested the death could have happened because Deebs either had the seat reclined or had the shoulder belt behind him rather than in front. "This horrible abdominal injury can only occur if you load only one belt," Boorman said.

Boorman also shifted the blame to the severity of the crash and the driving of the co-defendant, Barrett. Boorman said he plans to call a witness who will testify that Barrett's Explorer pulled into the grassy median on Interstate 85 to pass a minivan that was set on cruise control at 80 miles per hour. It was after the Explorer re-entered the roadway that it began to slide, eventually rolling over across the pavement, into a guardrail and down an embankment.

Mystery surrounds the cause of the crash because the driver, Barrett, sustained a serious head injury when he was ejected and has no memory of it, according to his attorney, Richard W. Brown of Fain, Major & Brennan.

Brown said in his opening that he plans to prove Barrett was forced off the road by an unknown "jackass" who was seen driving recklessly. Over this matter, Brown tangled with the plaintiffs' first witness, Cpl. David Lunsford of Habersham County, an officer with the Georgia Department of Public Safety Specialized Collision Reconstruction Team, who concluded in an official report that Barrett was driving recklessly. In a 45-minute cross examination, Brown raised his voice to the trooper, questioning his credentials, education and conclusions.

But Lunsford returned the fire on Brown's client: "Passing people in the median, that ranks right up there with a jackass, too."

The first day of testimony ended at 6 p.m. The judge said she will ask the jury to work on Saturday to try to make up for lost time. The lawyers anticipated the trial will last two weeks, but the time may be shortened by the issue preclusion.

The case is Young v. Barrett, No. 2010 A 4415-4.