November 14, 2005 – Lost $250K Verdict

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A plaintiff's failure to allow defendant DaimlerChrysler Corp. to inspect his damaged 1996 Dodge Ram after its airbag allegedly malfunctioned has cost him a $250,000 jury verdict.

An 11th Circuit Court of Appeals panel in Atlanta unanimously tossed out the award because the actions of the plaintiff, Glenville, Ga., resident Bryant Flury, prevented DaimlerChrysler from knowing the whereabouts of the damaged vehicle and, as a result, from defending itself adequately.

“Direct examination of the vehicle's condition was critically important to this case,” the three-member panel said. The failure to preserve the vehicle as evidence “forced experts to use much less reliable means of examining the product's condition.”

Flury was alone in the vehicle on Nov. 9, 1996, when he fell asleep at the wheel. The pickup left the road, sideswiped a pole and struck a tree, according to the court. He was wearing his seat belt but alleged in the lawsuit that the airbag's failure to deploy made his injuries worse.

A couple of weeks after the accident, on Nov. 22, Flury's lawyer notified DaimlerChrysler by letter of the accident, stating that the airbag's failure to deploy caused the plaintiff to sustain enhanced injuries.

The letter also told the automaker not to contact Flury directly.

The pickup was held for about a month at a body shop, then taken to Flury's parents' home and later sold by his insurer for salvage.

In a Jan. 3, 1997, letter, DaimlerChrysler asked the lawyer about the truck's location so that it could be inspected, but he never responded, the court said.

The court also said that, according to testimony in the lower-court suit, Flury didn't know where the truck was after the insurer removed it.

In 2000, according to testimony, Flury visited an emergency room for back pain that he claims started while he was lifting a tire. In 2002, he had surgery for a herniated disk.

On Dec. 23, 2002, Flury filed a lawsuit against DaimlerChrysler alleging that the airbag's failure to deploy caused him greater injuries than he would have received if it had deployed.

In the lawsuit, DaimlerChrysler denied any defect and contended the airbag didn't deploy because the impact was below the threshold speed that would have triggered deployment.

A jury awarded Flury $250,000 on June 30, 2004. But DaimlerChrysler appealed, arguing that it had been irreparably prejudiced by its inability to inspect the vehicle.

The appeals panel agreed and dismissed the case.

“The defendant did not have an opportunity to examine the vehicle's crush pattern, its airbag control module or its present condition,” the panel said in an opinion by Judge Peter Fay. “Crush pattern is often the best evidence of a vehicle's impact speed, and absence of such evidence can be highly prejudicial.”

And without inspecting the pickup, DaimlerChrysler “lost a valuable opportunity to test plaintiff's theory that the airbag was indeed defective,” it continued.

Phillips told Automotive News he expects his client to appeal further.

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