In a 41-page Order Granting Motion for Judgment NOV, Judge Barry Lawrence has vacated a $2,700,000 personal verdict returned by a Salt Lake jury in June of last year on a carbon-monoxide auto-defect case.

Smith v. Volkswagen Southtowne, Inc. et al., #130908362 (Third District Court for Salt Lake County) concerned a diesel fuel-line leak in a used Volkswagen Jetta that was alleged to have led to carbon monoxide exposure to the owner, Lois Smith, and her later neurological problems.(See my posts from June 7 and June 20, 2018

As you may recall, Ms. Smith alleged to have been exposed to CO while driving her vehicle from Utah to Washington over a two-day period. Her claim is that a leaking fuel line allowed diesel fuel to drip on the hot engine, in turn generating CO which entered the passenger compartment and poisoned her.

Following the verdict, defendant moved for judgment as a matter of law (JNOV) on the grounds that the plaintiff’s experts’ testimony was legally insufficient to establish that CO was produced by diesel fuel leaking onto the car engine, and that this in turn caused Ms. Smith’s injuries. After extensive briefing, oral argument was heard on March 21.

Judge Lawrence bought Volkswagen’s arguments. After an extensive discussion of the sufficiency of the plaintiff’s expert testimony on causation, the Court decided that Ms. Smith failed to prove that CO was actually produced in her car; that, even if it were created, enough CO was present to cause her injuries; and that it was impossible to tell whether her CO poisoning was more likely due to this short-term incident, or to the period of time in which she lived and slept in her car. 

In what sounds like a backhanded compliment to plaintiff’s counsel’s skills, Judge Lawrence concluded:

“Having had a front row seat to this trial, it appears to the Court that the jury was led astray by (extremely effective) trial work by Plaintiff’s personal injury attorney counsel without regard for the appropriate standard of scientific support, and consequently the required elements of Plaintiff’s claims. This is the very rare case where a trial court must act as a gatekeeper to avoid an unjust result; this Court simply cannot countenance a verdict that is, as here, contrary to any reliable scientific standard.” (Order at p. 40)

An appeal by Ms. Smith is a certainty. ​The motion papers are here:

Motion for New Trial
Opposition to Motion for New Trial
Reply on Motion for New Trial

Motion for Judgment NOV
Opposition to Motion for Judgment NOV
Reply on Motion for Judgment NOV

Defense counsel: Rod Parker and Nathanael Mitchell of Snow Christensen & Martineau.


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