Judge Brian Rickman. Georgia Court of Appeals.

The Georgia Court of Appeals affirmed a post-apportionment award of nearly $6.4 million to a couple for injuries the man suffered when the front brake of his Suzuki motorcycle failed and simultaneously turned aside the plaintiffs' arguments that they should have been awarded the entire pre-apportioned verdict of $12.5 million.

An attorney for the plaintiffs said they have not yet decided whether to seek a further appeal of the apportionment ruling.   

“We're very pleased with the first 22 pages of the opinion” which supported the trial court's denial of Suzuki's motion for a new trial or judgment notwithstanding the verdict, said Randy Edwards of Cochran & Edwards. 

“But we do think there's a serious issue concerning the write-down on comparative negligence in strict liability claims,” said Edwards. 

“It may well be that we'll file an appeal; we haven't made that decision yet. We'll see what Suzuki does,” said Edwards, who represents the plaintiffs with firm colleague Paul Piland, John Sherrod of Douglasville's Sherrod & Bernard and Parks, Chesin & Walbert's David Walbert and Jennifer Coalson. 

Suzuki Motor Corp. and Suzuki Motor of America are represented by Chilton Varner of King & Spalding, Michael Goldman and Zachary Wilson of Hawkins Parnell & Young and Randall Riggs and Jeff Mortier of Frost Brown Todd in Indianapolis.

The Suzuki team did not respond to requests for comment. 

As detailed in court filings, the case began in 2013 when plaintiff Adrian Johns was riding his 2006 GSX-R1000 to work. Prior to his ride he had notice the front brake felt “spongy” and bled the brake line to remove any air, which seemed to solve the problem.

He had driven about 20 miles when a tractor-trailer in front of him slowed down. Johns also attempted to stop but the front brake failed; he tried to stop using just the rear brake, but lost control and hit the curb and was thrown off.

Johns lost consciousness and suffered injuries requiring spinal fusion surgery for his back and another for an injured hand.

After two months in therapy he returned home, where he soon received a recall notice form Suzuki saying there was a problem with its GSX-R series bikes that could lead to corrosion of the brake piston and cause a spongy brake. 

Johns sued Suzuki in Douglas County State Court for claims of strict liability for defective design, negligent failure to warn and negligent recall, seeking compensatory and punitive damages. His wife filed a loss of consortium claim. 

Following a 2018 trial that lasted more than three weeks before Judge W. O'Neal Dettmering Jr., the jury awarded Johns $10.5 million and his wife $2 million, apportioning 49% of the liability to Johns. 

The verdict apportioned 45% of the blame to Suzuki Motor Corp. and 6% to co-defendant Suzuki Motor of America. 

Suzuki filed a motion for judgment notwithstanding the verdict or a new trial, which Dettmering denied. 

On appeal, SMAI argued that it was not properly a party to the suit because it had nothing to do with the motorcycle's design or manufacture and was not even in existence when Johns bought his bike. 

SMC said Dettmering erred in denying its motion for directed verdict on all three of Johns claims and that it should have been granted a new trial because the judge improperly allowed in evidence of its voluntary recall and of two similar brake-failure accidents.  

The Johns couple cross-claimed, asking the appeals court to reverse the apportionment and to add an extra $3.4 million in prejudgment interest because Suzuki had rejected an offer to settle for $10 million under Georgia's Unliquidated Damages Act. That statute allows interest to be added to the jury award if a settlement is rejected and the verdict is the same or higher than the offer.

The June 28 opinion denying both sides' appeals was written by Judge Brian Rickman with the concurrence of Presiding Judge Yvette Miller and Judge Clyde Reese.  

Regarding SMAI's position argument that it was not a party to the case, Rickman wrote that the court “need not even consider the substance of SMAI's argument because it simply is not possible at this point for this court to unwind the jury's verdict as to any single defendant.”

Suzuki's arguments that it should have been granted a directed verdict also failed, Rickamn said, noting that such a verdict is only warranted when all “reasonable deductions” from the evidence “demand a particular verdict.”

“It is undisputed that the defect in the brake cylinder … was present in Johns's motorcycle when it was sold,” he said. 

There was also evidence that the motorcycle industry in general and Suzuki in particular knew that a chemical reaction in the brake cylinder could cause a failure. 

The failure-to-warn verdict was also justified, the opinion said.

As early as December 2012, “Suzuki recognized that the brake issue was 'very dangerous'” and “acknowledged internally that customers experiencing issues with their front brake may not recognize the problem as a structural defect,” Rickman said. 

Dettmering was also justified in allowing in evidence of the other brake failures, he said, “particularly in light of Suzuki's repeated denials that the design defect at issue in the recall could result in a total loss of front brake pressure.”

The Johns' cross-claims, he said, are “premised upon the common law principle that a plaintiff's comparative negligence is not a defense to a product liability claim based upon strict liability.”  

But that principle must be balanced against Georgia's apportionment statute, which states that any damages awarded must be reduced by the percentage of fault attributed to the plaintiff. 

While it is “not immediately clear from the text of the statute” how it impacts claims for strict liability, prior state Supreme Court precedent holds that the law requires apportionment “despite its recognition of the long-standing common law rule against apportionment to intentional tortfeasors.”

Because it is derivative of Johns' claims, his wife's loss of consortium claim is also subject to apportionment, Rickman wrote.