Volkswagen lawyers say mistrial claims are last-ditch, baseless

Volkswagen attorneys blasted an attempt by plaintiffs' counsel seeking a mistrial for vehicle owners, who refused the automaker's settlement arising out of the clean diesel emissions scandal, as a baseless and last-ditch effort to relitigate the case by alleging the judge was biased.

Awarded just a fraction of what they were seeking, plaintiffs' attorneys "now throw mud at a highly respected federal judge to try to obtain a do-over of a trial that did not deliver their desired windfall," according to Volkswagen lawyer Robert Giuffra Jr. in a Northern District of California filing Thursday.

"Having lost the game, plaintiffs now attack the umpire," he wrote.

On March 9, a federal jury awarded $100,000 in punitive damages to the drivers of four vehicles who opted out of Volkswagen's settlement for installing emissions-cheating devices. They each got $25,000 in addition to sharing roughly $5,000 in compensatory damages. Three other plaintiffs received nothing.

Volkswagen hailed the decision as an expected victory. They have taken exception to plaintiffs' attorneys repeatedly violating court orders on the admissibility of certain evidence. In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, 15-MD02672 (N.D. Cal., filed Dec. 8, 2015).

Lawyers at the Knight Law Group and Altman Law Group, representing the vehicle owners, have maintained U.S. District Judge Charles Breyer was partial to Volkswagen to protect the integrity of settlements he presided over during the clean diesel emissions proceedings. They did not return requests for comment Friday.

After their attempt to disqualify Breyer by attacking his pretrial evidentiary rulings was dismissed in February, plaintiffs' attorneys mostly pointed to the judge's interactions with them during trial in their motion.

In one instance, Breyer interrupted their opening statements for allegedly failing to accurately characterize when Volkswagen admitted liability, and in another, he accused them of misleading the jury during their cross examination of the defense's damages expert, according to court documents. They also argued in the motion that Breyer repeatedly cut off their arguments as "irrelevant."

Three of the plaintiffs submitted declarations claiming they observed "signals from the court coaching counsel during the trial on when to object," according to court filings.

Giuffra stated plaintiffs' attorneys repeatedly attempted to argue inadmissible evidence over the fair market value of the vehicles and Volkswagen's prior settlements arising out of the litigation in an opposition motion. He said that he chose not to object to questionable statements to avoid the appearance the automaker was "evading its past conduct."

In several instances, Breyer properly stepped in to enforce his rulings, according to Giuffra.

Breyer also did plaintiffs' counsel a favor by permitting them to use Volkswagen's damages expert to justify their claims because they chose not to retain an expert of their own, which the defense attributed to no reputable expert being willing to offer testimony they were seeking, according to court documents.

"Without admissible evidence at trial of the "fair market value" of plaintiffs' cars, counsel repeatedly sought to put before the jury legally-flawed damages theories that the court had rightly rejected before trial," Giuffra wrote.

In the filing challenging the mistrial, Volkswagen pointed to plaintiffs' attorneys having attempted to disqualify judges in six of their recent cases. One judge found that one of the lawyers forced the defense to constantly object so he could then inappropriately argue to the jury the defense was trying to hide something.

The trial before Breyer was a test case for 350 vehicle owners who rejected Volkswagen's settlement and chose to seek damages separately.