A state appeals panel has agreed a new trial is in order for a woman who sued Ford Motor Company over her husband’s asbestos exposure after determining the automakers’ lawyers engaged in “skullduggery” by misleading jurors.
Trudy LaFever sued Ford and other manufacturers on behalf of her late husband, Steven, who died of mesothelioma in 2014. Specific to Ford, LaFever alleged the company failed to provide sufficient warning on packaging for replacement brakes despite the fact it had provided notice to dealers and employees, reminding them not to use a compressor to blow dust off the brakes and ordering use of a filtered vacuum.
A Rock Island County Court jury found in favor of Ford, after which LaFever sought a new trial. Judge Mark VandeWiele granted that request, then in 2019 Ford filed an interlocutory appeal with the Illinois Third District Appellate Court to challenge the ruling. The panel initially denied Ford’s request, but the Illinois Supreme Court in 2020 directed the review through supervisory order.
Justice Lance Petersen wrote the panel’s opinion, issued May 11; Justices Mary McDade and Joseph Hettel concurred. The order was issued under Supreme Court Rule 23, which may restrict its use as precedent.
Central to the issue is a moment from the 2018 trial while the LaFevers’ son, Brandon, testified about working with his father using Ford and Bendix brakes to work on the family’s personal and farm vehicles. According to Petersen, a Ford attorney “asked Brandon if he had actually handled the Bendix brake boxes, Brandon responded that he had, but that he did not remember what the boxes looked like.”
The lawyer then tried to show Brandon a photo of such a box, but the legal team hadn’t disclosed the image to plaintiffs’ counsel pursuant to an existing agreement. During a sidebar conference the judge ruled Brandon could see the photo, but the jury could not. The issue instantly reoccurred with a second photograph, this one showing the asbestos warning on a Bendix box, with further dispute over the questions posed to Brandon.
After the jury left that day, LaFever’s counsel told the judge “that through the questions posed, (Ford’s) attorney had intentionally misrepresented what the warnings on the Bendix boxes stated to give the jury a false impression that the warnings that (LaFever) believed should have been given were provided to the decedent through the Bendix boxes, even if they had not been provided to the decedent through defendant’s own products.”
On appeal, Ford argued a new trial was inappropriate because, although LaFever’s lawyers requested a mistrial, they also said they would accept jury instructions specifically addressing the photograph situation. The judge opted to provide curative instructions. When Judge VandeWiele granted the new trial, Ford argued, he should’ve found LaFever’s claim of error was waived, shouldn’t have ruled Ford violated any rules about evidence and didn’t account for the likelihood the curative actions and the record itself all pointed to the likely outcome of a ruling in Ford’s favor.
“The record in this case established that at the final pretrial conference, defendant’s attorney sought and obtained an oral agreement from plaintiff’s attorney on the predisclosure of exhibits,” Petersen wrote. “That agreement was clear, specific and uncomplicated.”
The panel said failure to properly disclose the photographs “caused the exact prejudice that defendant’s attorney had intended — it deprived plaintiff’s attorney of the opportunity to prepare Brandon for any possible cross-examination that could arise from the photographs, regardless of whether the photographs were actually admitted into evidence or shown to the jury.”
Peterson further said that when Judge VandeWiele granted the new trial, he asserted the conduct of Ford’s lawyers “was deeply troubling and egregious, that it put plaintiff at a huge tactical disadvantage, and that it had the potential to impact the outcome of the trial. That assessment was not based upon speculation, as defendant contends, but upon the trial court’s first-hand opportunity to observe the entire trial and to evaluate the error in the context of those proceedings.”
Ford insisted there was no judicial order for it to violate regarding evidence disclosure. The appeals panel noted the judge’s written order didn’t reflect those specific terms, but “they were contained in the parties’ oral agreement on pre-disclosure, and the record shows that both sides were well aware of the existence of that rule.”
Finally, the panel said the questions posed to Brandon caused “additional prejudice,” compounding the error of just presenting the photographs “by improperly suggesting to the jury, under the guise of trying to refresh Brandon’s recollection, that the exact precautionary warnings that plaintiff claimed were missing in this case were contained on the outside of the Bendix brake boxes, even though defendant’s attorney knew that no such warnings existed.”
Judge VandeWiele did provide specific jury instructions, the panel said, but not to the degree LaFever’s lawyers requested.
“In hindsight, after having seen the entire jury trial take place and having been able to evaluate the error in the context of those proceedings, the trial court determined that a new trial was warranted,” the panel wrote. It agreed, and granted the motion for a new trial.