You know the old saying about a bird in the hand? The VW opt-out plaintiffs are learning it the hard way.

Rather than taking VW's (quite generous) settlement offer in the wake of the diesel emissions scandal, a handful of car owners went to trial, seeking reimbursement for the full amount that they paid to purchase or lease their cars, plus other penalties.

Instead, a San Francisco federal jury this week awarded the first 10 bellwether plaintiffs a combined $5,747 in compensatory damages—which is just sad. Five of the plaintiffs got no money at all. 

It's not over yet—there's still a punitive damages phase. But with such a paltry compensatory award, the court isn't likely to uphold big-ticket punitives, should the jury opt to send a message to VW. (For example, last week the Ninth Circuit in Ramirez v. TransUnion held that the appropriate ratio between statutory and punitive damages was 4 to 1.)

"It's not like a drug company that's got a drug it's selling to people and people are getting cancer. That's not what happened here. They stopped immediately selling the 2-liter cars and then the 3-liter cars, right away," VW lawyer Robert Giuffra Jr., a partner at Sullivan & Cromwell, told U.S. District Judge Charles Breyer of the Northern District of California, according to a transcript of the proceedings. 

I suppose it was inevitable that out of 550,000 VW class members, a few were going to object, figuring that they were entitled to more money. 

What's notable is that more than 99% of the class members actually took the deal. At this point, there are only 350 remaining opt outs. And if this trial is any indication, they may kick themselves for snubbing VW's offer.

For example, Kenneth and Maria Coon originally paid $77,957.11 for their 2014 Audi A6. "But for Volkswagen's fraudulent concealment of presence of the defeat device, plaintiffs would not have purchased the vehicle," they said in their complaint filed last year. 

If they'd taken the VW settlement, they would have gotten $8,679.24 in cash, plus a free emissions repair. Instead, the jury awarded them zero in compensatory damages, determining that the fair market value of their car was not actually diminished because of the emissions problem.

The result is a testament to VW's expert, Stanford Professor Timothy Bresnahan, the former chief economist of the Justice Department's Antitrust Division. He crunched the numbers to determine how much the emissions scandal hurt the value of the cars. 

His answer? Not much—a mere 4.4% on average.

Plaintiffs lawyer Bryan Altman of Altman Law Group in his opening attacked Bresnahan, pointing to his $1,000 hourly rate and suggesting that because VW gave money to Stanford ($5.75 million 11 years ago), the professor was now in the automaker's pocket. 

"[T]he actual data he used has been creatively manipulated," Altman told the jury. "In fact, this expert will only focus on what he claims is a fair market value that he claims will show what was lost by these people. He will not focus on the amount of money these people spent in reliance."

But the plaintiffs didn't offer their own competing expert. Instead, they tried to undermine Bresnahan on the concept of fair market value. 

"Is it reasonable for a vehicle that's not in compliance with the law to be driven, to be sold, to be resold? Is that a reasonable thing? Does a willing buyer even exist?" Altman said in his closing. "Dr. Bresnahan wants you to believe that a consumer would pay nearly $70,000 for a motor vehicle knowing that it was in violation of the most basic emissions standards. That's what they're asking you to buy into here."

But Giuffra in his closing skillfully countered the claims. "These cars were valuable. They provided great fuel economy, mileage. There was a valuable warranty, performance, comfort. The only issue is the cars had a defeat device. That's the only issue that's in this case."

Fair market value, he continued, isn't about one plaintiff's subjective view—i.e. I wouldn't have bought the car. "The only question is, 'Well, once folks knew there was a defeat device in the car, what was the car worth?' That's the fair market question that you all need to decide," he said. "The fact that these plaintiffs were angry that they bought these cars, that's not a basis for damages." 

The plaintiffs lawyers seem inclined to blame their poor showing on Breyer, who has been immersed in all aspects of the VW emissions scandal since 2015, including the $14.7 billion settlement that covered vehicle owners.

Last month, the plaintiffs asked the judge to disqualify himself. "Judge Breyer has a dog in this fight," wrote Altman, and Lauren Ungs, managing partner of Knight Law Group's office in Oakland, California. "He has a vested interest in determining that the settlement he presided over and approved was a fair resolution of consumer claims."

Breyer declined to step down.

On March 1, plaintiffs counsel tried again, filing a motion for a mistrial. "[T]he court's comments have gone beyond the traditional boundaries and have become so one-sided as to become advocacy," they wrote. "The court's comments and questions have shown hostility and skepticism towards the plaintiffs, plaintiffs' counsel, or the merits of their case in the presence of the jury, and have operated to taint the jury's perception of the merits."

The motion is pending—and the tension it's created was evident, especially when the jury wasn't present. Breyer in rebuking Altman for misstatements during closing arguments said, "The problem you have, counsel, is of course you moved for a mistrial. And so that essentially … gives you complete liberty to say whatever you want about the theory, about the evidence and so forth, because if Volkswagen moves for a mistrial, you've gotten exactly what you want out of this case, which is a mistrial."