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The parents of Zachary “Gage” Duncan sued Hyundai after he suffered a traumatic brain injury in a crash.
Courtesy of Stein, Mitchell, Muse & Cipollone LLP
This 2008 Hyundai Tiburon was the vehicle that Zachary “Gage” Duncan crashed on Belspring Road in Pulaski County.
Courtesy of Stein, Mitchell, Muse & Cipollone LLP
This car crash from 2010 left Gage Duncan of Pulaski County with permanent brain damage.
Friday, June 28, 2013
PULASKI – A jury ruled Friday that Hyundai Motor America must pay a Radford family more than $14 million after a teenager was injured in a 2010 wreck in which his side air bag did not deploy.
The parents of Zachary “Gage” Duncan sued Hyundai after the Feb. 27, 2010, wreck that put their then-16-year-old son in a coma for almost a week. Gage Duncan suffered a traumatic brain injury when he crashed his 2008 Hyundai Tiburon on Belspring Road in Pulaski County.
A jury of three women and four men deliberated for almost 10 hours before finding that Hyundai breached the implied warranty of merchantability, meaning the company made a vehicle that was “unreasonably dangerous.” The jury also found that the breach of merchantability was the proximate cause of Duncan’s injuries.
Ari Casper, the Duncans’ lead attorney, argued that the air bag sensors in the 2003 to 2008 Tiburon models are in the wrong location and do not accurately detect when the side air bag should deploy. Casper said after the hearing that he’s unsure of how or if this ruling could affect potential recalls of those vehicles. The Tiburon was discontinued in 2008.
The attorneys on Hyundai’s defense team – who came from four separate law firms in Pulaski; Roanoke; Charleston, W.Va. and Birmingham, Ala., and included the associate general counsel for Hyundai from California – left quickly after the verdict and did not speak to media.
Circuit Court Judge Colin Gibb said he expected additional motions would be filed in the case – hinting at a potential appeal – and told the lawyers that they could set a date for those motions to be heard.
The case originally ended in a mistrial in September, after those jurors deliberated almost 13 hours and told Gibb that they couldn’t come to an agreement.
The retrial began June 17, and the jury heard arguments and testimony that spanned almost two weeks.
According to the closing arguments Thursday, Duncan had been hanging out with friends on the night of the crash. He passed a car that his friend was driving and sped off ahead of him. Duncan’s car ran off the right side of the road, hit a snowbank, traveled down a hill, hit a hay bale and then struck a tree. When his friends found him, they called 911 and left the scene. A passenger in Duncan’s car was not injured.
Casper said that Duncan’s head hit the roof rail of his car when he slammed into the tree. Because of what Casper described as a defective sensor, the air bag, which Casper said would have prevented Duncan’s head from hitting the roof rail, did not deploy.
“If you put an old, antiquated technology in a car, someone gets hurt, and then you have to pay for it,” Casper said in his closing argument. “Did they design a safe car so that folks in Pulaski County like Gage Duncan are safe? You don’t design cars to past tests; you design them to protect occupants.”
Duncan’s parents, Keith and Vanessa, purchased the car from Duncan Hyundai in Christiansburg only a couple of months before their son’s wreck, Casper said. Though they share the same name, the Duncans are not associated with the dealership. The Duncans and Duncan Hyundai reached a confidential settlement out of court, Casper has said.
Keith and Vanessa Duncan sat at a table with Casper and three others from his Washington law firm. After the jury ruled in their favor, the Duncans cried and hugged their lawyers.
Gage Duncan was not in court Friday and appeared only once during the trial to testify.
Jurors heard dozens of hours of technical testimony about air bags and their sensors. They watched crash-test videos. They heard from engineers, medical doctors and Duncan’s family and friends who knew him before and after the crash. They went to the scene of the crash. They saw and examined more than 1,000 exhibits, including Duncan’s car, which Casper purchased after the wreck and has been storing in Radford. He transported the car to the court parking lot during the trial so that jurors could look at it.
Ultimately, jurors had to determine if the vehicle was defective by design and “unreasonably dangerous,” and, if so, that the defective design element — which the plaintiffs argued was the side air bag and its sensor — was the proximate cause of Duncan’s injuries.
Jurors began deliberating Thursday afternoon and returned with a verdict about 1:45 p.m. Friday.
Casper said that Duncan, now 20, has made impressive improvements, including being able to finish high school with a modified standard diploma, but he first had to relearn how to walk and talk. Duncan now tends to keep his head down and eyes averted, and he often forgets words and retells the same story over and over, Casper said. He has difficulty controlling his emotions and occasionally “blows up,” punching walls and getting into altercations, Casper said.
“We can’t replace his frontal lobes, but we can pay to take care of him,” Casper told jurors.
Duncan’s parents have spent more than $139,000 in medical expenses, which includes payment for the time Duncan spent at Carilion Roanoke Memorial Hospital in a coma and later at Kluge Children’s Rehabilitation Center at the University of Virginia.
Jurors decided to award the Duncans $140,000 for the medical expenses.
In his closing argument, Casper told jurors that Duncan needs to be placed in a long-term facility so that he can live in a supervised community. He projected the cost of lifetime care for Duncan to be more than $11 million.
The jury awarded the $14 million.
Hyundai’s legal team said the car company considered 14 different locations for the sensor before determining that the best place was underneath the driver’s seat.
“The system did great in every single test,” Harlan Prater, a lawyer from Birmingham, Ala., said in his closing argument. “We ran it into poles, we ran it into barriers — short barriers, tall barriers — we ran cars into it, and in every single test ... the car did excellent.”
At the time, only 20 percent of cars on the road had side air bags, but Hyundai chose to install them even though they weren’t required, Prater said.
According to testimony, Duncan could have been traveling at 16 to 20 mph, which means he may not have hit the tree traveling at the 18 mph threshold for air bag deployment, Prater said. But even if the air bag had deployed, Prater said the plaintiffs failed to prove that it would have prevented Duncan’s injuries.
“The roof took the major brunt of this crash,” Prater said, adding that roof air bags don’t exist. “He wasn’t hurt by the damage to the door; he was hurt by the roof.”
Prater said that though Hyundai regrets what happened to Duncan, the company made a “good, safe” car that exceeded federal safety standards.
But both the jury and Casper disagreed.
“Justice has been served here,” Casper said after the verdict. “The vehicle didn’t protect Gage Duncan, and it should have. The verdict will allow Gage the care he needs to improve his circumstances.”
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