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Making Volkswagen pay up, in state court

Richard Neely.jpg 1
Richard Neely

By Richard Neely

Dr. Ira Morris cares for about 5,000 families in Boone County, where he is the only primary care provider in the Wharton, Van and Whitesville areas. Dr. Morris loves his work, but he must commute 125 miles every day, which is why the Volkswagen scandal affected him personally.

In 2012, Dr. Morris bought a Volkswagen diesel Passat that turned out not to have the longevity he expected; by September 2015, the car was costing $500 a month in repairs, so Dr. Morris decided to trade it. When Dr. Morris approached Stohlman Subaru/Volkswagen in Vienna, Virginia, he was told that even a Volkswagen dealer would not take his diesel Passat in trade. Later, a Beckley Subaru dealer took the car in trade, but credited Dr. Morris with substantially less than its pre-scandal Blue Book value.
Ingenious Volkswagen engineers rigged both Volkswagen and Audi diesel engines to defraud government regulators and consumers: The emission control devices turn on only during testing. Thus on the open road, Volkswagen and Audi diesels belch 40 times the allowable limit of nitrogen oxide into the atmosphere.
Given that Dr. Morris’s loss was caused by Volkswagen’s fraud, one would think that Volkswagen would want to make amends. But that isn’t what happened: When Dr. Morris contacted Volkswagen, Volkswagen blew him off, and when I contacted Volkswagen, their officers didn’t even give me the courtesy of a reply.
Most of the press reports about making Volkswagen pay up have discussed various “class actions” by which hundreds or thousands of consumers are aggregated as plaintiffs in one massive lawsuit. Well, in my younger days I used to do class actions, and class actions are almost always in federal court, are long, procedurally difficult, and ultimately unsatisfying to most members of the class because they take so long.
The famous Exxon Valdez case is an example. Briefly, in 1989, an Exxon oil tanker dumped 11 to 38 million US gallons of crude oil in Alaska fishing waters. In the resulting class action tried in 1994, an Anchorage jury awarded $287 million for actual damages and $5 billion for punitive damages. Finally, in 2008, the U.S. Supreme Court reduced the punitive damages to $507.5 million based on maritime law. How many years was that? Nearly 20 you say?
The reason, however, that class actions exist is that individual plaintiffs can’t afford the costs to litigate and lawyers won’t take small individual cases on contingency. With a class action, however, Volkswagen will horse everyone around for a decade with all kinds of procedural shenanigans — something that can’t be avoided when a class action is the only way people can afford to litigate.
But happily the Volkswagen case is the mirror image of a proper class action. Hardly anyone who owns an offending Volkswagen or Audi has suffered more than $20,000 in damages, and most have suffered less. But unlike cases that require expensive experts to establish liability, in the Volkswagen case, every proof that one would need to recover compensatory and punitive damages has already been admitted by Volkswagen. Therefore, why not bring individual actions in state court and ask for only $75,000 in total damages, thereby avoiding defendant-friendly federal court?
The patience of our State judges will be quickly worn thin by efforts to avoid fair payment.
My complaint against Volkswagen is available in the Boone County Circuit Clerk’s office. Happily, summary judgment on liability can be awarded by the court upon the filing of the defendant’s answer. That leaves just an inquiry of damages where the plaintiff proves what his car was worth before the scandal and what the car is worth after the scandal. Then, however, the plaintiff can ask for and receive damages for annoyance, inconvenience and anxiety plus punitive damages based on Volkswagen’s fraud and deceit.
After all, Volkswagen has admitted that it rigged the engines, and those engines are shown to emit 10 to 40 times the allowable nitrogen oxide, which noxious chemical causes emphysema, bronchitis and other respiratory diseases.
Richard Neely is a former chief justice of the West Virginia Supreme Court of Appeals and general counsel of The Charleston Gazette-Mail. He may be reached at [email protected].

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