Ford Appeals Sanctions in Roof Crush Case
Originally published in the Daily Report, an ALM Media publication, on August 17, 2018.
By: Kathryn TuckerFord Motor Co. is appealing what its lawyers are calling civil capital punishment in a contentious roof crush case that ended in a mistrial. Ford lawyers have repeatedly asked to file interlocutory appeals in the product liability wrongful death case filed by the family of South Georgia farmers Melvin and Voncile Hill, who died in a rollover crash in their F-250 Super Duty pickup truck. The company has filed a new notice of appeal based on Gwinnett County State Court Judge Shawn Bratton’s imposition of sanctions against Ford for repeatedly violating his orders. Bratton declared a mistrial in April after Ford’s lead counsel took an expert witness into cause-of-death testimony that the judge had already ruled out. As punishment, Bratton precluded the company’s defense against charges that it knowingly made a roof that was dangerously weak and deadly in a foreseeable rollover crash. Ford said in a notice of appeal that Bratton’s sanction is “in substance, intention, and effect, an order holding defendant in contempt of the court and is therefore directly appealable” under Georgia law. “The imposition of impermissible death-penalty contempt sanctions, violating basic due process rights by adjudicating a controversy not based on the merits, constitutes an exceptional case justifying interlocutory review of the order, particularly in light of the trial court’s blanket refusal to certify that or any order for immediate review—a practice consistently and without exception followed with each and every certificate of immediate review requested by Ford,” the company said in its notice of appeal. Ford further reasoned that, if the sanctions order can be appealed, then so can “all prior orders and rulings that may affect the proceedings below.” Thus the company announced in the notice that it is also appealing 14 other orders by Bratton, saying they “and many others” are “reviewable in the same manner as a final order.” Ford’s issues with the judge include Bratton preventing the company from apportioning fault to the driver, partly because he tested positive for “numerous prescription drugs with significant side effects.” Ford objected to being prevented from making an issue of seatbelt use: Although witnesses said the Hills were wearing their seatbelts, Ford suggested they may not have had the shoulder portion of their belts in proper position. Ford also took issue with Bratton’s denial of its request for recusal based on alleged bias in favor of the Hills. Ford asked the clerk to “omit nothing from the record on appeal” and designate that all transcripts, pleadings, papers, exhibits, depositions and other materials before and during the three-week trial be sent as part of the record. The Georgia Court of Appeals has jurisdiction over the appeal, Ford asserted, “because this case does not involve matters within the exclusive jurisdiction of the Supreme Court of Georgia.” The first firm name among the signatures on the notice is a new entry for Ford in this case: Troutman Sanders. The new Ford attorneys there, in order of appearance on the notice, are William Withrow Jr., Pete Robinson and James Manley. They replaced Dentons partner Randy Evans after Evans left the firm to become a U.S. ambassador to Luxembourg. The rest of the Ford team remains the same: lead counsel D. Alan Thomas of Huie Fernambucq & Stewart in Birmingham, Alabama, working with Paul Malek of the same firm; Michael Eady of Thompson Coe Cousins & Irons of Austin, Texas; and Atlanta lawyers Michael Boorman and Philip Henderson of Huff, Powell & Bailey. The Ford lawyers declined to comment beyond what they’ve said in the record. Counsel for Kim and Adam Hill, who brought the suit on behalf of their deceased parents, filed a request for special setting of a new trial date and opposition to what they claim are Ford’s attempts to delay it. The Hills’ lead counsel is Jim Butler of Butler Wooten & Peak of Columbus and Atlanta. Butler’s legal team includes Gerald Davidson Jr. of Mahaffey Pickens Tucker in Lawrenceville; Brandon Peak, David Rohwedder, Christopher McDaniel and Ramsey Prather of Butler Wooten; and Michael Gray of Walker, Hulbert, Gray & Moore in Perry. The Butler team has also added appellate lawyers Michael Terry and Frank Lowrey IV of Bondurant Mixson & Elmore. The Hill team has made an issue of Ford’s choice of lawyers. “Robinson, like the now-departed Randy Evans, is co-chair of the Judicial Nominating Commission,” the Hill filing said, adding in parentheses that Ford brought Evans in just before the case went to trial the first time. In an earlier pleading, the Hill team suggested that Ford “brought in Evans to be its conduit to the court.” The lawyers said Evans had sent the judge’s staff attorney 113 emails, many mentioning his JNC role. According to the Hills’ lawyers, those emails included statements such as: “I am currently in a Judicial Nominating Commission meeting selecting folks to recommend to the Governor for appointment to the Bench,” and, “We are trying to set the date for the selection of 4 Court of Appeals judges.” Another email, according to the Hill lawyers, said, “based on the Governor’s instructions, the interviews for the four (4) Court of Appeals seats cannot go forward without me.” A separate request for comment from Robinson, about the plaintiff lawyers’ claims in connection with his position on the JNC, was referred to Ford, which didn’t provide a comment. The JNC—with Evans gone and Robinson now as chair—will interview nine candidates next week for two appointments to the Georgia Supreme Court. The Hill team said in its filing that Ford’s latest action “makes it even more clear that Ford intends to try to delay retrial as much as possible by attempted unauthorized appeals.” The Butler team said the Hills “have a right to get a trial and a verdict” and cited another case the firm tried, Gibson v. Ford, in which the firm claims the company’s lawyers delayed the trial for five years with pre-verdict appeals. That case finally ended in 2005 with a $13 million verdict. “Plaintiffs are opposed to piecemeal appellate review and should not be punished by further delay as a result of Ford’s and Ford’s lawyers’ reprehensible behavior,” the Hill lawyers said in the latest filing. They also quoted Bratton’s July 19 sanctions order: “Ford’s ability to appeal the Court’s rulings with which it took exception was within arm’s length. Upon verdict, likely days away, all rulings would have been directly appealable.”