Two sides reach confidential settlement in the midst of trial

Ford Motor Co. settled a seat belt product liability and wrongful death case in the middle of trial Friday afternoon in Cobb County State Court.

The news of the confidential settlement was announced in court to Cobb State Court Judge Kathryn J. Tanksley late in the afternoon by plaintiffs' counsel J. Antonio DelCampo.

DelCampo said he returned from stepping out of the courtroom to confer with clients Janice and Donald R. Young II of Greensboro, N.C., whose 15-year-old son Donald R. "Deebs" Young III died in Northeast Georgia after a rollover crash in a Ford Explorer. "It was clear to everyone that the case was not going to get any better for Ford and probably was going to get much worse," said DelCampo of Harris Penn Lowry DelCampo.

A key issue in the case was whether Deebs was wearing his seat belt properly when the lap portion sliced through his body to his spine during the rollover, causing him to bleed to death. Ford defense attorney Michael R. Boorman of Huff, Powell & Bailey suggested in his opening statement that Deebs must have been wearing his shoulder strap behind his back, saying, "that kind of horrible abdominal injury can only occur if you load only one belt."

Ford didn't get the opportunity to present its experts, but the plaintiffs presented an expert, California-based automotive safety consultant Steven Meyer, who testified that Deebs, a passenger in the vehicle, was wearing his belt properly. Meyer said the shoulder belt loosened by 20 inches instead of locking as it should have to hold the torso in the seat, according to Stephen G. Lowry of Harris Penn Lowry DelCampo.

DelCampo and Lowry said conversations with the jury following the settlement revealed that Meyer was persuasive. "It became very clear to the jury and to Ford that Deebs was properly wearing his seat belt and the seat belt caused his death," said DelCampo.

Ford's lawyers, Boorman, Audrey K. Berland and R. Page Powell Jr., all of Huff, Powell & Bailey in Atlanta, declined to comment. Ford spokesman John Stoll also declined comment. Donald Young said that after the settlement was announced, all of the Ford lawyers expressed their condolences to the family.

Powell joined Boorman and Berland at the defense table after Boorman suddenly went from local counsel to lead counsel because the judge tossed out the original lead counsel, D. Alan Thomas, and his co-counsel, Paul F. Malek, both of Birmingham, Ala.-based Huie, Fernambucq & Stewart. Tanksley revoked pro hac vice orders for Thomas and Malek after they revealed that Ford had excess verdict insurance coverage. That information was not disclosed before voir dire began and was not used to qualify jurors regarding potential conflicts of interest. The judge then scrapped the jury and started the trial over eight days later, following a motion hearing on plaintiffs' request to strike the defendant's answer as a sanction. The judge denied that motion. Instead, Tanksley sanctioned Ford by precluding the company from defending itself on one issue: failure to warn of a danger.

"The judge was great. She was stern with everyone but very fair," said DelCampo, who stepped down in March from his position as a judge in DeKalb State Court after nine years on the bench. When he decided to return to private practice, he said he called Harris Penn Lowry because he was impressed by their performance in his courtroom during a 2009 case against Ford for alleged Explorer defects that led to a $40 million verdict.

DelCampo and Lowry said they were surprised by the settlement. They were in court when they received an email around 3:30 p.m. from partner Darren W. Penn, who had been negotiating with the Ford general counsel's office.

Penn started working on the case in 2004 when he was with then-named Scherffius, Ballard, Still & Ayres. Janice Young said she contacted him after asking two lawyer friends to help her find a Georgia plaintiffs' attorney, without telling either one the other was looking. They both came back with the same name: Darren Penn.

Penn took the case and kept it when he and partners Lowry and Jeffrey R. Harris formed Harris Penn Lowry Jan. 1, 2006.

When Penn delivered the settlement news, DelCampo and Lowry said they had mixed feelings. "One part of you wants to get the case resolved and the other part wants to keep going," said Lowry. "I was looking forward to cross-examining Ford's witnesses because they always try to blame the victim."

The plaintiffs also settled with co-defendant David R. Barrett, who was driving the Ford Explorer when it went into the grassy median of I-85 near Commerce, then slid after re-entering the highway and rolled into a guardrail and down an embankment. Barrett was a coach for Deebs' hockey team. Barrett's son Josh also was a passenger. Both Barrett and his son were injured but survived after being ejected in the rollover.

Barrett's attorney, Richard W. Brown of Fain, Major & Brennan in Atlanta, said he settled for $30,000, the limit of Barrett's insurance coverage with North Carolina Farm Bureau. Brown had made the same offer before trial, but the plaintiffs wanted to keep Barrett in the case to block Ford from employing what Lowry and DelCampo called the "empty chair defense."

Boorman said in opening that Barrett was driving recklessly and entered the median to pass other cars. But Brown said in his opening that he would produce witnesses to show that Barrett was traveling near the speed limit when he was forced into the median by an unknown "jackass" who cut him off. Brown also sharply questioned the first plaintiffs' witness, a Georgia State Patrol officer who faulted Barrett's driving as well as the seat belt. Brown said an indictment against his client for vehicular homicide was dismissed.

Deebs' parents were scheduled to testify, and a 19-year-old sister already had testified. With earlier witnesses, the plaintiffs had described for the jury an honor student, star athlete and leader in school and in the traveling hockey team for which he was playing in an Atlanta area tournament the day he was killed. His school, Mendenhall Middle School, now has a stadium named in his honor and built with private funds raised in his memory.

The Youngs said they were surprised and relieved to find closure of a lawsuit that began shortly after their son died on April 18, 2004. "I, probably more than Janice, was frightful for her of an appeal process," said Donald Young. "Clearly, I feel we were going to win hands down, and there was going to be an appeal hands down. We were facing several more years in limbo."

It is their hope, the Youngs said, that their case can make a difference in seat belt safety. "We've learned that sport utility vehicles tend to roll over more than cars, so you just hope that proper focus is given to restraint systems. I don't want one other set of parents to go through a loss of a child," said Donald Young. "We just don't want to see anybody perish needlessly."

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