MCI verdict raises concerns about liability standards

LAS VEGAS — A jury found that no vehicle defects were responsible for a bicyclist’s fatal sideswipe collision with a motorcoach before awarding his children $18.7 million in damages from Motor Coach Industries.

The jurors declined to accept four allegations of defects made by attorneys for the family of Kayvan Khiabani, 51, who died April 18, 2017. But they decided that MCI “failed to provide an adequate warning” before the collision and awarded damages.

The case will be appealed and, so far, should not establish a broad new legal liability standard, according to industry experts.

The Khiabani attorneys had told jurors “that the aerodynamic design of the tour bus created a pulling force equivalent to 20 pounds near the right front portion of the vehicle . . . MCI should have known their design posed a risk to a cyclist like Khiabani.”

Attorneys for the family and MCI engaged in lengthy, detailed debates over the technological feasibility and commercial availability of proximity warning devices when the 200- model coach was manufactured. They also argued whether a product manufacturer could be liable for injuries without an identified product defect.

A statement released by MCI following the verdict said:

“We are pleased by the jury’s verdict that MCI’s industry-leading J4500 model coach was not defective in any way. We respectfully disagree, however, with the jury’s finding that MCI should have warned of the air disturbance that is generated by any large commercial or industrial vehicle.

“Everyone has felt the air disturbance when being passed by a large bus or truck, and we are not aware of any manufacturer that warns of this open and obvious fact. MCI’s coaches have been used to safely transport passengers in millions of miles of operation and will continue to do so. We look forward to pursuing the next steps in the legal process to overturn the jury’s verdict on the failure to warn of air.”

Khiabani was the head of hand and microsurgery at the University of Nevada-Reno School of Medicine and chief of hand surgery at University Medical Center.

When the accident occurred, the Las Vegas Review-Journal reported:

“He happened to be cycling parallel to a Motor Coach Industries bus about 10:30 a.m. when Khiabani appeared to accidentally veer left, witnesses told police. The quick move caused him to bump into the passenger side of the bus, then dip into the path of the vehicle. The 50-year-old driver of the tour bus stayed at the scene and did not show signs of impairment, police said. The coroner ruled Khiabani’s death an accident Thursday.”

Ryan’s Express of Phoenix operated the bus.

During the six-week trial before Judge Adriana Escobar, attorneys representing Khiabani’s sons alleged that the 2008 MCI J4500 motorcoach was defective in design because it had a right-side driver’s blind spot, lacked proximity sensors to warn of the bicyclist’s presence, lacked a rear-wheel protective barrier, and had an aerodynamic design that could cause a wind blast to destabilize and pull in bicyclists.

After deliberating for less than a day in Clark County District Court on March 23, the jurors returned a verdict finding none of those alleged four defects “made the coach unreasonably dangerous and a legal cause of Dr. Khiabani’s death.”

Then the jury answered “yes” to the fifth question on the verdict form, “Did MCI fail to provide an adequate warning that would have been acted upon?”

The jury awarded $16.2 million to Khiabani’s two sons to compensate for grief, sorrow, loss of companionship and loss of support. An additional $1 million was awarded to Khiabani’s heirs for his pain and suffering.

The jurors decided MCI was not liable for punitive damages.

Jurors awarded $1.5 million to the estate of Khiabani’s wife, dentist Katayoun Barin, who died from cancer last October. Her cancer had been diagnosed three months before the accident. Following her death, plaintiffs’ attorneys sought to add a claim for her wrongful death to the MCI suit.

MCI attorneys filed a motion in opposition to this claim, which stated, “Plaintiffs intend to argue that grief and sorrow caused Dr. Barin’s cancer to accelerate and caused her passing. Notwithstanding the rather novel and unique theory on which Plaintiffs intend to proceed, this is plainly not a foreseeable outcome from a legal standpoint.”

The court granted MCI’s motion to dismiss the claim.

The Review-Journal reported that on the day of closing arguments, the bus company’s insurer offered a $1 million settlement that was declined.

However, a lawyer for MCI disputed the newspaper’s report, saying no insurer offered a $1 million settlement on the day of closing arguments.

“Bus design, in general, hasn’t changed a whole lot over the years. So, it’s hard to imagine that this model has a particular issue that others wouldn’t, or an issue that wouldn’t have been exposed previously in other similar incidents,” said Matt Daecher, a transportation safety expert and president of Daecher Consulting Group.

“This might simply be a good case study of why parties in a legal matter are usually skeptical to try a case – you just never are sure what the jury will be convinced of,” Daecher said.

Such a verdict illustrates the reason that insurers recommend their clients carry higher liability coverage minimums than required by law, said Michelle Wiltgen, assistant vice president and national marketing manager at National Interstate Insurance Company.

A transportation carrier or product manufacturer cannot believe that following laws and regulations is enough to be safe before a jury, Wiltgen said.

“With any emotional case that goes to trial, you have a jury of people who aren’t necessarily experts in that field,” she said. “It looks to me like they were a sympathetic jury. I am not sure MCI did anything wrong and I am sure they will appeal.”

The jury demonstrated the reason that similar cases rarely go before juries, Wiltgen said.

“Fewer than 1 percent of these cases go to trial for that reason. They (the plaintiffs) went for the deep pockets. Nevada is a tough place to do business,” she said.

But businesses that believe they are falsely accused often want to fight the case.

“Many times, insureds such as motorcoach companies are upset when an insurer settles a claim. Well, this is why they often settle,” said Ken Presley, vice president of legislative and regulatory affairs and industry relations/COO for the United Motorcoach Association.

“Courts and juries are largely unpredictable and the process is very expensive. I spent nearly 30 years insuring motorcoaches and I never saw anything like this one. It took a lot of dollars to bring this suit,” Presley said.

“It’s easy to say if you don’t like the decision you can always appeal — until you learn the cost and learn that courts do not always agree to hear appeals,” he said. “Often when they do agree, the case is remanded right back to the court that you lost in to begin with.”

Avoiding trial

Wiltgen said National Interstate stresses to customers that legal liability and jury verdicts are separate issues.

“We would avoid going to trial on that issue at all costs,” she said. “They (MCI) didn’t think they had any liability, but this is the risk you run when you are going to trial.”

Will this case set a troubling precedent for liability standards in the motorcoach industry?

“There are still too many unanswered questions. I don’t think it is over,” Wiltgen said.

Presley agreed that it is too early to tell what the ramifications are, if any.

“I understand the verdict is being appealed and the jury’s decision could very well be overturned,” he said.

Plaintiffs’ attorney William Kemp told the Courtroom View Network that the case should be remembered as the first product liability case against a bus manufacturer to recover for poor aerodynamic design.

“Because there are hundreds of thousands of buses and large trucks on the road today that also have bad aerodynamic design that impacts millions of unwary bicyclists as they pass, other like lawsuits are inevitable,” Kemp said. “Plaintiffs hope that the verdict stimulates the manufacturers of large buses and trucks to design safer vehicles that are not aerodynamically dangerous.”

Actually there are 10.7 million large trucks and 764,509 buses registered in the U.S., according to 2017 statistics published by the Federal Motor Carrier Safety Administration.

Considerable pre-trial debate regarded the availability and feasibility during the 2008 model year of proximity warning sensors that would sound an alert to drivers when a pedestrian or bicyclist is beside a motorcoach or truck.

The Khiabani attorneys presented evidence that warning devices were available on automobiles at that time and produced press releases and advertisements regarding sensor availability on 2018-model buses.

In a pre-trial filing, the plaintiffs’ attorneys stated, “According to the October 15, 2007, edition of Bus and Motorcoach News (the leading trade journal in the bus industry), a bus manufacturer named BCI offered the Eaton side proximity sensors as a standard feature on its 2007 (Falcon 45) coach.”

North American importation of the Chinese-built BCI (Bus & Coach International) buses ended in 2009.

In its response, MCI attorneys argued that proximity sensors were not viable for motorcoach use when the 2008 coach was built.

“The law is exactly the opposite of what Plaintiffs say it is. The Nevada Supreme Court has held that commercial availability is a necessary, but not sufficient, condition for feasibility. An alternative design that is not commercially available because nobody makes it is, by definition, not commercially feasible,” they stated.

According to a Nevada precedent, MCI wrote, “Plaintiffs may not introduce evidence of a safer alternative design, however, if at that time the design was not commercially feasible.”

Cost not a factor

The judge ruled that plaintiffs’ counsel could not admit evidence concerning the cost of proximity sensors. In a pre-trial memorandum, the judge ruled that MCI had stated “it found the technology to be incompatible with its motorcoaches . . . MCI did not consciously reject the proximity sensors . . . out of a desire to cut costs.”

The judge denied the plaintiffs’ effort to allege that cost was a reason that MCI chose not to equip the motorcoach with a guard to prevent pedestrians and cyclists from being run over by wheels. One of the expert witnesses called by the plaintiffs was identified as the president of the company that makes such a product, the S-1 GARD.

The manufacturer describes the product as “a securely mounted maintenance-free barrier installed in front of the right rear wheels of a transit bus or motorcoach, designed to deflect a person out of the path of the wheels, preventing catastrophic injury or death.”

In a pre-trial memorandum, the judge wrote, “The misimpression that MCI cut corners to save money is highly prejudicial and has minimal value to feasibility . . . Nobody in Nevada uses the S-1 Gard and MCI has always contended it was simply unaware the technology existed in 2007 when the coach was manufactured.”

In pre-trial discussions of jury instructions, attorneys argued whether jurors could award damages for product liability without identifying a specific defect.

The plaintiffs’ attorneys cited a precedent case in Nevada in which “It has been held that ‘a specific defect in the product is not an essential element in establishing a cause of action’ since ‘in the field of product liability the focus is on the product and not necessarily on its component parts.’”

As for the four alleged defects (which jurors later rejected), the Khiabani attorneys argued, “There is a safer alternative which had either been developed by MCI or was both practicable and feasible.”

Based on that case, they argued, “The standard pattern jury instruction explicitly states that Plaintiffs need not prove that the bus had any specific defect.”

In its response filing, MCI attorneys said plaintiffs had asked the court “to give them the benefit of an inapplicable product malfunction doctrine. A product-liability plaintiff must generally prove a defect by reference to some specific attribute of the product.”

Quoting from a precedent to this case, they stated, “In Nevada, plaintiff bears the burden of establishing the product is defective, which requires a showing that it ‘failed to perform in the manner reasonably expected in light of its nature and intended function and it was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.’

“Evidence of an accident or injury is not in itself evidence of a defect. This is not a case of product malfunction and plaintiffs have not even suggested that it is. Plaintiffs’ theories of defect run the gamut from questionable applications of Bernoulli’s principle to a rubber guard anointed with superhero powers.

“Plaintiffs have argued that bicycles veer into buses and get run over all the time. Although defects may play a role in some accidents, in others the injury occurs because of the driver’s or the cyclist’s bad judgment . . . the lay observer would properly conclude that there was no product malfunction, just an accident.”

(Daniel Bernoulli, an 18th-century Swiss mathematician and physicist, devised Bernoulli’s Principl, which describes speed-related changes in the pressure of fluids, including air.)

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