Brett Turnbull's Closing, and the "Smoking Gun" Error Code, at Heart of $25M Verdict Against Nissan

A common defense in vehicular product liability trials is that the driver, not vehicle defect, caused the crash at the center of the case. However, with manufacturers adding ever-more advanced computer systems into their cars, a vehicle’s own diagnostic system can often be the “smoking gun” that proves a plaintiff’s argument. In closings of Cruz v. Nissan North America, et al., Brett Turnbull highlighted a key code error in an SUV that set up an eight-figure verdict for the plaintiffs.

A mother and two daughters were killed when an Infiniti QX 56 SUV driven by 74-year-old Solomon Mathenge slammed into the car in which they were travelling. The children’s father, Hilario Cruz, sued Nissan, claiming a defective brake system caused the fatal crash.

Nissan countered that Mathenge was negligent, pointing to his age as a factor in the collision.

At trial, Cruz’s legal team, including Turnbull, of Cory Watson P.C., focused on a brake error code, C1179, the Infiniti had triggered. And during closings, Turnbull told jurors that code proced that the brake defect caused the crash.

Turnbull noted the defense’s argument that the code could have been triggered long before the crash. However, he noted the car’s other owners, who regularly took in the Infiniti for dealership service, testified that they had never complained or been told of brake problems.  “The only person who has ever claimed to have a brake problem with this car is Solomon Mathenge,” Turnbull said. “And that was on August 29, 2012 [the date of the crash].”

Turnbull said the Infiniti had been taken to a dealership seven times after Nissan had issued a technical service bulletin, or TSB, warning of defective brakes, but it had never received the recommended fix. “If there had been a C1179, don’t you think somebody would have brought it up and they could have downloaded it and found it then?” Turnbull asked. But, “just as importantly, it proves there was ample opportunity on seven different occasions after the TSB [was issued] for this car to have been fixed.”

That, Turnbull noted, once again implicated Nissan. “If it hadn’t been a TSB, and had been a recall, dealers could have fixed it, would’ve fixed it, at any of the times it was brought in.”

Turnbull reminded jurors that the defense’s engineering expert, Eldon Leaphart, blunted one of Nissan’s key arguments when he testified the C1179 code was triggered before the crash. “All this discussion about it having possibly been set after the collision, even… the defense expert agrees that it was before[hand],” Turnbull said, adding Leaphart conceded the code could have been triggered on the day of the crash.

“Once C1179 begins to happen,” Turnbull said, “it continues to happen until it’s fixed.”

The diagnostic code pointed to one conclusion, Turnbull argued. “Is [the brake defect] a substantial factor? Is it more likely true than not true?

“Absolutely.”

The jury handed down a $25 million total verdict, including $14 million to Hilario Cruz, $7.4 million to the girls’ sister, and $3.5 million to Mathenge.