Plaintiffs lawyers again claim judicial bias in VW emissions cheating trial

SAN FRANCISCO -- Attorneys representing consumers in the first U.S. jury trial against Volkswagen for the installation of emissions cheating devices again accused the federal judge overseeing the litigation Friday of being "partial" to the automaker.

After raising concerns of bias on the eve of trial, Bryan Altman, representing the car owners, argued the "court has demonstrated an overt hostility against plaintiff' counsel." He pointed to a question from the judge at a prior hearing asking his co-counsel, "You're a lawyer, aren't you?"

U.S. District Judge Charles Breyer disagreed over the "disparaging" nature of the remark.

"One way a lawyer acts is to follow the court's orders as to what the rules are even if they disagree," he said. "I haven't understood that to be the case."

The dispute stemmed from what Altman characterized as Breyer's inappropriate intervention during his cross examination of Stanford professor of economics Timothy Bresnahan, Volkswagen's damage's expert. He also argued Breyer provided settlement information to the jury that was not admitted into the trial.

Breyer responded he only stepped in "where there [was] a retread of things that have already been established in connection with the case." He added he would instruct jurors to disregard information he inappropriately told them if it actually happened.

Plaintiffs' attorney Scot Wilson said "we're past that point."

At the Friday hearing in a four hour cross examination, Altman quarreled with Bresnahan over whether there was a market for vehicles with the cheat devices after the disclosure of the defect.

Volkswagen has maintained there was a robust used car market for affected vehicles, and their values were only slightly diminished. The consumers have argued the prices of their cars were severely impacted by the disclosure they contained emissions cheating devices.

Bresnahan improperly expanded his analysis of the market for impacted vehicles to include all cars sold nationwide, according to Altman. He argued only the California market is relevant since all the plaintiffs bought their cars in the state.

The expert's analysis showed four 2010 Jettas, which one of the plaintiffs drove, were sold in California of 281 total sales of the vehicle nationwide. Similar analyses for cars driven by the other named plaintiffs also reflected a much smaller number of car sales in the state relative to the total number nationwide. Altman argued this proved there was meager market for cars with the cheat devices.

Bresnahan responded his models use standard economic practices to compensate for when there is not enough data to draw a conclusion. He explained he had to use data from car sales nationwide because there wasn't enough information from California sales of impacted vehicles.

"It's not reliable to use the small samples size of California but rather the whole country to have an adequate sample size," he said.

Bresnahan appeared increasingly frustrated as Altman asked a similar line of questioning for all the analyses of the market for each of the plaintiffs' cars, at which point Breyer told the plaintiffs' attorney to stop arguing with the expert.

"His answer, and he keeps giving it and you keep asking about it, is because the sampling in California is so small, you can't, as a statistician, take that sampling and come to a conclusion," he said. "So he's saying he took a national sampling."

The ten consumers in this trial serve as plaintiffs in test cases for roughly 350 other lawsuits.

A bench trial over whether Volkswagen's previous settlements arising out of the clean diesel litigation provided an "appropriate correction" to the misconduct started on Monday, according to court filings. The jury was then brought in on Thursday to consider damages plaintiffs are owed. It will then determine whether Volkswagen should be further punished for malicious misconduct.

Bresnahan will continue testifying on Monday.