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Civil Litigation

Feb. 26, 2020

Attorneys rehash damages arguments in VW emissions cheating trial

Although he agreed to reverse an earlier ruling that will boost the consumers’ total potential recovery if they prevail, U.S. District Judge Charles Breyer on Tuesday admonished attorneys representing the consumers for continuing to advance arguments he previously rejected despite having “gone through this any number of times.”

SAN FRANCISCO -- The federal judge overseeing a trial against Volkswagen by consumers pursuing claims arising from the clean diesel emissions scandal tore into plaintiffs' attorneys Tuesday for disregarding his orders barring their desired theory of damages.

Although he agreed to reverse a ruling that would boost the consumers' total potential recovery if they prevail, U.S. District Judge

"We disagree, but that's the ruling of this court," he asserted in a Tuesday hearing, during which he told two plaintiffs' attorneys to "sit down."

Breyer dismissed the jury in the morning on what was scheduled to be the first day it heard arguments on damages to instead clear up what lawyers for both sides would be permitted to argue.

Among the clarifications was a reversal of a previously rejected theory of damages to allow plaintiffs' attorneys to include additional costs, such as sales tax and registration, to their damages calculation. They were previously excluded because Breyer reasoned the consumers would have incurred the fees regardless in buying any vehicle.

Breyer agreed to present the recalculated figure for the total price consumers paid for their cars to the jury after being told a plaintiff would testify he would not have bought any other car, entitling him to recoup its full value if his attorneys prevail on the issue.

Volkswagen agreed to the change.

Although he labeled the additional damages "speculative," defense attorney Robert Giuffra Jr. characterized the amount at issue as insignificant after expressing frustration over "going back-and-forth about this for days" because "plaintiffs don't take no for an answer."

"We've already spent more in lawyer fees talking about this," he said.

Plaintiffs' attorney Scot Wilson repeatedly clashed with Breyer at Tuesday's hearing. In the cross examination of Volkswagen's vice president of its engineering and environmental office, who testified over the efficacy of the correction to the automaker's cheating device, Wilson tried to elicit testimony that Volkswagen failed to give consumers 30-day notice, prohibiting its defense to consumer fraud claims.

Breyer foreclosed the argument, explaining "that's not the way the law works." He added "maybe it's a good idea to use common sense."

Wilson asked if he should sit down given the "court earlier has told me to sit down" and "asked whether I'm really a lawyer."

"I'm sensing hostility from the court," he continued.