June 24, 2020 by Greg Meckbach
Vehicle manufacturer Nissan is facing a lawsuit in British Columbia over rear seatbelts, in a case that demonstrates how legal defence costs can multiply in a hurry.
The plaintiff, Arshdeep Singh Sidhu, was nine years old in 2008 when he was severely disabled as a result of a motor vehicle accident. He was riding in the rear, driver-side seat of a 2006 Nissan Pathfinder when the vehicle was hit by another vehicle. The driver of the other vehicle was allegedly drunk and ran a stop sign.
The planned 72-day trial will feature more than 100 witnesses and 10,000-plus pages of documentary evidence, according to a decision on a pre-trial motion.
In addition to the other driver – as well as the host of the party where the other driver was drinking – case defendants include Nissan Canada Inc., Nissan Motor Co., Ltd., Nissan North America, Inc. and Abbotsford Nissan Ltd.
The trial is scheduled to start Aug. 4, a lawyer representing Nissan told Canadian Underwriter Tuesday.
Allegations against Nissan have not been proven in court. They include the plaintiff’s contention that seatbelts of the kind in the Pathfinder did not fit children and were likely to cross their face and necks, causing discomfort. The plaintiff admits he was not wearing his seatbelt correctly at the time of the collision.
Whether the plaintiff was actually belted – and if so, how – is a matter of dispute. The plaintiff says he had his lap belt buckled but was wearing the shoulder belt over his right shoulder instead of his left, as it was designed to be worn.
As a result of the 2008 collision, the plaintiff had his spine severed. He is a quadriplegic and depends on a ventilator.
So far, Nissan has been successful on a couple of pre-trial motions. In Sidhu v. Hiebert, released Mar. 19, Justice Forth ruled in favour of Nissan by finding a plaintiff’s expert report is not admissible. That came a month after Justice Forth ruled that the trial will not take place before a jury.
Although the plaintiff wanted jury trial, Justice Forth noted in her Feb. 14 ruling that it would be very difficult for a jury to keep track of the number of defendants in the case, in addition to the various duties and standards of care that apply to each of them.
What makes the trial even more complex is there are 100 expert reports from 55 different experts, with 10,000 to 15,000 pages of evidence in total. The topics include accident reconstruction, the physics and forces generated during the collision, how those forces caused the plaintiff’s injuries.
In arguing for a judge-only trial, Nissan noted a jury would have to weigh and assess the credibility, demeanour, and reliability of 55 expert witnesses and 25 to 50 fact witnesses on key issues months apart.
The plaintiff claims a comfort guide would have improved the fit of the rear seat belt shoulder strap and made it more difficult for the plaintiff to improperly route the shoulder strap of his seat belt over his right shoulder.
The Mar. 19 ruling means expert opinion evidence from a forensic accountant is now inadmissible at trial. The accountant hired by the plaintiff was asked to calculate the profit Nissan made by not installing certain devices into its vehicles for more than 20 years. Those devices include seatbelt comfort guides (which the plaintiff says would encourage children to wear their seatbelts properly), rear seat pre-tensioners, and integrated booster seats.
Separately, Consumers Reports says pre-tensioners are common in front seats but rarely installed in rear seats. When the vehicle detects a crash is about to occur, the pre-tensioner is supposed to pull the seatbelt tight, reports Consumer Reports.
In Sidhu’s lawsuit, his expert accountant was asked to assume each device cost $1 and that Nissan would not have increased its selling price for those vehicles had the device been installed. The plaintiffs’ expert opined that, assuming the cost per device was $1, the extra profit was about $229 million since 1994. The plan was that once the actual cost was determined, it would multiply the total profit figure by that dollar amount, and then use that to calculate punitive damages against Nissan.
Nissan takes issue with the assumption that no Nissan vehicles sold worldwide from 1994 to 2020 were equipped with the safety devices in the rear seats. Nissan also argued that Sidhu’s lawsuit is over whether a specific model, the Pathfinder, was unsafe or defective. It is not about every vehicle Nissan sold since the 1990s worldwide.
Justice Forth agreed, finding the issue of whether other models of Nissan were unsafe were not initially raised by the plaintiff. The accounting expert’s opinion report does not meet the “threshold criteria” that a judge must consider before accepting expert opinion evidence in either a criminal trial or lawsuit. Among those criteria are that the evidence must be logically relevant to a material issue and must be necessary to assist the judge.
Excluding the accounting expert’s report does not stop Sidhu from arguing during trial that Nissan should pay punitive damages or from making any arguments about Nissan’s financial performance.
But the expert opinion report does not support the notion that Nissan made millions of dollars in profit worldwide over multiple decades from the cost savings generated from selling defective and unsafe vehicles, Justice Forth wrote in her Mar. 19 decision.
The driver of the other vehicle had his blood analyzed, with the conclusion that he was driving with more than three times the legal limit of alcohol in his blood.
An expert has opined said the other driver would have had to drink between 20 and 26 ounces of hard liquor to produce such a result.
Feature image via iStock.com/TuiPhotoengineer