Tesla Autopilot Liability Case
- 01 March, 2024
- 55.9 MB
Diving into the high-stakes world of Tesla Autopilot litigation, Bob Simon catches up with Jonathan Michaels, the go-to expert for product liability cases with a technological twist. Jonathan discusses the challenges of navigating product liability lawsuits, shedding light on the meticulous preparation, high costs, and indispensable role of top-tier engineering experts required to succeed. He delves into how these cases often pivot on debunking the myth of user error, leveraging cutting-edge strategies for jury selection, and employing focus groups to crack the code of juror decision-making. With a keen focus on the critical flaws of Tesla Autopilot, including its premature beta release and the dangers of automation complacency, Michaels sounds the alarm on the urgent need for stricter regulations.
Jonathan Michaels, DefectAttorney.com
Transcript
Bob Simon (00:07):
Welcome to this episode of the Justice Team Podcast on the Justice Team Network. And this episode we have the pleasure of Jonathan Michaels, who is a product liability guru, and he’s the first one to try a Tesla Autopilot defect case here in California. Jonathan Michaels comes to us from Newport Beach, California. He’s known as the…
(00:26):
Is it just productdefect.com? What’s your website?
Jonathan Michaels (00:29):
Good question. Defectattorney.com.
Bob Simon (00:31):
Defectattorney.com. My wife says I’m a defective attorney. First of all, Jonathan, how do people find you? Can you give where they can find you? Because we’re going to have a lot of people reach out about these questions if they have a case against Tesla they may need help on or just questions, how do they find you?
Jonathan Michaels (00:48):
Yeah, well thank you for asking. The name of the firm is MLG Attorneys at Law. You can Google that, but the best way to find us is just go to Google and defectattorney.com. That’s us.
Bob Simon (00:59):
Defectattorney.com. Have you reached the point yet, I mean I’m sure, where other people try to pay for your name or your website to rank higher on Google?
Jonathan Michaels (01:05):
Yeah.
Bob Simon (01:05):
It’s very annoying.
Jonathan Michaels (01:06):
It is. I mean, we were fortunate to get the name defectattorney.com quite some time ago and I’m never letting that go.
Bob Simon (01:14):
So first thing, I think a lot of listeners, when they get a product case, they underestimate how much work is is.
Jonathan Michaels (01:24):
That’s very true.
Bob Simon (01:25):
So I mean, you obviously had what? A six, eight week trial I would assume?
Jonathan Michaels (01:28):
Yeah, it was a seven-week jury trial at Riverside. And that’s actually the small part of it. It’s the couple years of workup and then the intensive two months right before trial. I mean we had 25 expert witnesses between both sides.
Bob Simon (01:42):
And I think that’s, if you don’t mind me asking, how much cost did you have to front just for that case?
Jonathan Michaels (01:47):
We had about $900,000 hard cost.
Bob Simon (01:49):
And that’s what a lot of people don’t realize. I had, I tried one case against Honda and we were over a million for just, because now you’re doing vehicle recreations, rebuilds and it’s expensive.
Jonathan Michaels (02:00):
I mean, what people see, and I think what attracts people to it is there’s very large injuries and so very significant injuries. They see that and like, “Okay, we can handle that.” But what they’re not understanding is the level of engineering and the expert witnesses you need for that. And they have to be world-class. I mean, you have to go up against, in your case Honda, in our case Tesla. And you have to beat the engineers who built the product.
Bob Simon (02:20):
And also the consumer expectation that, “I like this brand. I like them, they’re safe.”
Jonathan Michaels (02:26):
That’s true.
Bob Simon (02:27):
The defense in every one of these cases is user error.
Jonathan Michaels (02:30):
It is. And we had, the jury trial we just did, we had a number of potential jurors that had Teslas, they were Tesla fan club members. And that’s an issue that you have to deal with. But then the opposite also can happen, which is you have some people that are very distrustful of some of the brands.
Bob Simon (02:46):
And some states, jurisdictions don’t even get to ask jurors questions and you’re kind of just dealt the hand that you get.
(02:53):
But let’s talk. I want to talk about jury selection. We’re going to work our way backwards. And these are very, very intense cases, labor-intensive, hours and hours of work buildup, expert depositions. And you pretty much have to be a subtechnical lawyer. Do you have any engineering background?
Jonathan Michaels (03:11):
I don’t, but I’m super analytical. I mean, I could have been an engineer if I didn’t go into this profession. And you have to have a mind that just works that way. You have to understand the science, you have to really even know what the experts are not alluding to and take them down the right path. And you just have to understand engineering principles solid.
Bob Simon (03:28):
And that’s where you have to lean on mentors and other in this space. And there’s a fantastic organization called AIEG. You’re member of this too?
Jonathan Michaels (03:36):
Yeah, that’s a big deal.
Bob Simon (03:37):
So let the listeners know what that is and how you can try to get in.
Jonathan Michaels (03:41):
AIEG is the Attorney Information Exchange Group, nationwide organization of all product defect attorneys. And it’s a great organization. They meet twice a year. There’s several hundred members. And there’s an amazing listserv, really a great group of people that you can go to for information.
(03:59):
And we do product defect stuff, but sometimes you’ll get a case just on the fringes of things that we do on a regular basis. And so you reach out and inevitably you’ll get an expert within a day like, “Oh, you got to use this guy. He’s great for those rare cases.”
Bob Simon (04:16):
And there’s another alpha called the Expert Institute, and they have a platform called Expert iQ, which is fantastic.
(04:21):
But AIEG, which I do love and a member of as well. And you have to have credentials, apply to get in. You go through a process. You have the work product waiver and stuff like that. So it’s not easy.
Jonathan Michaels (04:32):
It’s funny because it is, it’s very true. You really have to apply to be in. And they call it sort of a virtual warehouse where we put briefs in, we put deposition transcripts. And so literally every time you log on to the website, you have to affirm that you won’t share this outside what their principles are, you’re not part of the defense firms. And the sharing is very, very, very deep.
Bob Simon (04:56):
And nationwide lawyers like a community, they have their own firms, would pull together. And that’s whenever we had an expert, there’s you guys out of Florida and the group out of Arizona that just pretty much worked for auto manufacturers. And we were just tracking experts through the network of AIEG. Where were they testifying the week before? What were they talking about? You bring in boxes of depositions that they had just given in trial testimony, and it can be a very bad day for the defense experts, but you got to be prepared.
Jonathan Michaels (05:23):
You got to be prepared and you got to do the work. And it’s a lot of work, and it’s hard work, and it’s deep work. And it’s just something that it just doesn’t jump off the page. I mean, you really have to dig and dig and dig in these cases.
Bob Simon (05:33):
So I mean, you’re going up in Riverside, California. California is a very tech-savvy state. And you have a lot of people that are very pro-EVs. You have some people that are very anti-EVs.
(05:47):
So talk to us about jury selection. What was your method? What were you looking for? That kind of stuff?
Jonathan Michaels (05:52):
So it’s interesting, we went through 150 jurors to get to our 12 and we had four alternates. And it was a very difficult process. It took quite some time.
(06:02):
One of the issues we had is that Tesla is just a big, it’s a big name. It’s a big brand right now. And so people that either have Teslas, or have shares of stock in Tesla, or have biases in favor of Tesla. And we burn through a lot of jurors. As a matter of fact, our trial judge has the exact same car that was at issue in our case.
Bob Simon (06:21):
What was the car at issue?
Jonathan Michaels (06:22):
It was a Tesla Model 3.
Bob Simon (06:23):
Oh, man. Who was your judge?
Jonathan Michaels (06:25):
Chris Harmon. Great judge.
Bob Simon (06:26):
Yeah.
Jonathan Michaels (06:26):
Great guy.
Bob Simon (06:26):
Riverside has great judges. I actually have two Teslas. I’ve had Teslas for like 10 years.
Jonathan Michaels (06:32):
So they’re okay cars, just don’t use the autopilot.
Bob Simon (06:34):
Exactly. And I mean I have it on both vehicles. We have two Model Xs. And I will use it on the freeway in the carpool lane, but I always have my hands and feet there just so I can have, it’s actually another set of eyes. But I just don’t get where people will, I know people that are like, “I turn it on and I go to sleep in the car.” It’s like are you insane?
Jonathan Michaels (06:52):
Well, the issue is that Tesla really fosters that belief. And that’s really a lot of their marketing is they’re fostering this belief of the car will drive itself and people fall for that. And the reality is it’s a very low-level system in terms of the automation that it supplies. And people just don’t have an appreciation of really how hypervigilant you need to be when you use these cars.
Bob Simon (07:15):
And it seems to me like these cases, and I did not see any of the trial. I heard a lot about, was following it. But you have this big battle of against, okay, even if Tesla could have done better, even if their product wasn’t up to par, it’s still this person’s fault. Right? That’s probably the hardest part of the case.
Jonathan Michaels (07:31):
It is. I mean, it’s funny because they talk out of both sides of their mouth.
Bob Simon (07:35):
Oh, of course.
Jonathan Michaels (07:35):
When they’re selling the cars, they’re marketing it. It’s like, “Oh, the car is the greatest thing. And it almost drives itself.” But when it comes time to standing in front of a jury, they’re like, “Well, on page 912 of the owner’s manual here in four point font, it says, ‘You always have to have your hands on the wheel.'” And so they’d love to point to that. It’s so hypocritical.
Bob Simon (07:53):
So you have, just for our listeners, when you do a product liability case, it’s not just one cause of action, it’s just not one theory of liability when you get to trial. One of them is failure to warn. One of them is consumer expectation test, which California, I think it’s only California has that language for consumer expectation.
Jonathan Michaels (08:11):
That’s pretty much correct.
Bob Simon (08:12):
And then there’s some other ones for proper design, et cetera, straight negligence. And this is why you need a specialist try these cases because when these juries get the verdict form alone, it’s like five or six pages.
Jonathan Michaels (08:24):
It certainly can be. You can have 40 questions that the jury’s answering and they can get really tripped up. And so, one of the things that we really try to do for all of our products cases is we do focus groups, a lot of focus groups, really in large part to get the verdict form correct.
Bob Simon (08:39):
Oh, wow.
Jonathan Michaels (08:39):
So they’re not getting tripped up on it, because we’ve had jurors and we watch them when they deliberate in our focus groups. And you can see these jurors can get tripped up. They’re just not understanding the language of the question. So we spend an enormous amount of time on the verdict form.
Bob Simon (08:52):
So you have your mock, beautiful mock courtroom, which we were looking at photos of, and it’s better than most federal courthouses, especially state courthouses. So walk us through how you go through, and I think it’s important for people to understand. I’m sorry, we keep pivoting listeners, I’m fascinated by this shit. So you have your mock courtroom and I assume you’re doing what we call focus groups. Kind of explain how you do this.
Jonathan Michaels (09:12):
So we put on mock trials and we do these all the time. I actually did one just two days ago. We’re doing these once a week, once every two weeks. And we literally bring in a mock jury, so we’ll have generally 12 jurors in the panel. And we’ll pick a jury depending on what we’re looking for. Sometimes it might be that’s going to resemble the jurisdiction. Sometimes I might want an extremely conservative jury to see, okay, this is the worst jury-
Bob Simon (09:39):
Worst.
Jonathan Michaels (09:39):
… that I could get. How do I do with them?
(09:42):
And we have a number of different ways that we do it. My favorite way is when we do sort of a blended opening and closing. So it’s explaining the story, but with a little bit of argument. And then we give them the verdict form. We often do an individual verdict form, and this is a fascinating part, so we can see where each person is with their own thoughts. And then they send them into a deliberation room and we actually make them deliberate to a verdict and see how it changes.
(10:07):
And one of the things that’s really interesting about that is you start learning personality types and okay, this person gave us 30 million individually, but then they folded and went down to 6 million with a group. Why did that happen? And what does that person need to feel secure?
Bob Simon (10:21):
Do you make them do those personality tests before?
Jonathan Michaels (10:24):
We don’t do personality tests, but we get an enormous amount of data on them. So we know everything about them.
Bob Simon (10:30):
And I mean, this is just the art of, we could speak forever on picking juries and figuring out personality types, but that’s a big thing. There’s a big bunch of consumer data, how they sell products and where based off of your personality type. So it’s like, we should be doing this and a lot of us are doing this in jury trial, but it’s a big lift, man.
Jonathan Michaels (10:48):
It is. And I think that getting back to the Tesla trial, we had several days of jury selection. We got down to the last day, we had 10 jurors that were iced in the case, so they were going to be in the case. And all 10 were really good for us. And we get to the last day of the jury selection and jurors 11 and 12, and we had two peremptories left and we had to save those for also the alternates. And so we had the last juror-
Bob Simon (11:11):
That you can get, ugh.
Jonathan Michaels (11:12):
… came in. And it was tough. That person was, she was a very nice lady, but very commanding personality. And if she’s with us, we’re good. If she’s against us, she’s pulling people with her.
Bob Simon (11:23):
And that’s what, know a lot of people that you’ll teach picking juries is it’s really jury deselection and you got to get the bad jurors that pull the other ones out.
Jonathan Michaels (11:32):
Yeah, and you really have to save your ammunition. I mean, there’s a temptation like, “Okay, let’s get this person out on the early stages.” Well, yeah, but you don’t know what’s coming down the corner next-
Bob Simon (11:41):
Correct.
Jonathan Michaels (11:41):
… and that can be tough.
Bob Simon (11:43):
And when you pick your juries, do you do it as a team? Do you have a jury consultant? What’s that look like?
Jonathan Michaels (11:48):
All of the above. We have a jury consultant-
Bob Simon (11:51):
Dream team?
Jonathan Michaels (11:52):
… and it’s reading the tea leaves. We have, and actually this is funny you asked because with our mock trials, I mean, this is how intelligent we get with this. So we have everyone from our office that we think can read people well come in, and we have a lot of people in our office, and read the jurors. And so we actually rank ourselves internally at how well they pick the jury, how well they picked the jurors. And so we then have number one person, number two person all the way down to number 30. And so we bring the top three or four people to the trial because we’ve-
Bob Simon (12:22):
Wow, that’s cool.
Jonathan Michaels (12:23):
… kind gotten them able to-
Bob Simon (12:24):
You’re like Gamify-ing internal system. That’s awesome.
Jonathan Michaels (12:26):
Yeah. And so then we have our number one person who’s a lady in our office and she’s just really good at reading people. And so if they’re ever in doubt you have, when you’re picking the actual jury, some people like this person, some people don’t, I’m kind of going to her as a tiebreaker.
Bob Simon (12:40):
And there’s another, you aware of the AI called emotion track? Have you seen this one?
Jonathan Michaels (12:44):
I have.
Bob Simon (12:45):
They’re actually coming here later to the studio. I haven’t seen it yet, but we just used it for trial. Right now, one of our trial lawyers uses it. I’m interested to see what happens.
Jonathan Michaels (12:53):
We haven’t used that. I mean we’ve just been a little more old school trying to read people and get a feeling, and we’re building a tribe and trying to build a tribe at least.
Bob Simon (13:01):
Exactly. And have you used, again, listeners, you want to, for people on our end of the aisle, we don’t get paid per hour, we get paid perhaps. So we’re going to weaponize every single advantage we can to do the most important part of the case, which is jury selection. Then meeting your burden.
(13:20):
So whenever you do all your focus groups, how do you collect all that data? Because you do many. If you’re in a case like this, you’re doing several.
Jonathan Michaels (13:25):
Yeah, we did 11 mock trials for this-
Bob Simon (13:27):
Wow.
Jonathan Michaels (13:27):
… last Tesla case that we did.
Bob Simon (13:29):
Wow.
Jonathan Michaels (13:29):
And we’ll have different juries. And of the 11, we lost two. So we won nine, lost two of our mock trials. And you actually try to, you take them to lose them so you can learn the most-
Bob Simon (13:41):
Yeah. So do you play the defense lawyer?
Jonathan Michaels (13:43):
So sometimes I’ll play, actually to tell you the truth, my favorite thing is, and I’ve never seen anyone else do this, is I like to play both.
Bob Simon (13:49):
Oh, interesting.
Jonathan Michaels (13:49):
So I get up and I do the plaintiffs. And then I sit down and we have a judge who’s overseeing the whole thing. And he says, “Okay, defense, are you ready to proceed?” And I say, “Yes, your honor.” I stand up and then I start doing the defense. And I do both equally. So there’s an equal amount of vinegar and venom in both, and then the jury doesn’t know what the heck is going on. They don’t know who’s putting on.
Bob Simon (14:11):
That’s interesting.
Jonathan Michaels (14:11):
And the reason I like that is twofold. Number one, it takes the person out of it. So if you and I go up against each other, they might like you more, they might like me more, and that might sway them as to why they’re actually going to vote a certain way. But if you do it against yourself, it removes that. And the second thing is now I have to argue the defense case intently and it really-
Bob Simon (14:29):
It makes you a better-
Jonathan Michaels (14:30):
… forces me to learn it.
Bob Simon (14:31):
… better advocate.
Jonathan Michaels (14:31):
And here the funny thing is, so when I stand up, and I’ve done this a ton, and I’m doing the defense, I’m actually trying to win. You just get so competitive in this thing, I’m trying to beat us. And you just get so into it.
(14:43):
And then the funny thing is when they come out and after they deliberate and reach their verdict, you say, “Okay, who do you think is putting this on?” And about half think it’s the plaintiff, half think the defense.
Bob Simon (14:51):
Really?
Jonathan Michaels (14:52):
They have no idea. They have no idea.
Bob Simon (14:53):
Oh my God. And [inaudible 00:14:54] on the defense side of stuff, it’s just like I feel it’s so easy for them to win these cases. They have a blank check to hire all these experts that just say whatever the heck they want to say. They do all these stupid BS tests that just say what they know it’s going to say.
Jonathan Michaels (15:07):
They do. And the experts that the defense have, they just use them again and again-
Bob Simon (15:11):
Again and again.
Jonathan Michaels (15:11):
… and again. And they really will, they’ll say anything.
(15:13):
And I think on our side, the experts that the plaintiffs use, I just feel like they have much more integrity. And they’re not just going to say what you want them to say. Their reputation is on the line. So it’s just very different.
Bob Simon (15:24):
And they don’t have a warehouse to run crash tests over and over again. Then hand select the videos to send you. It’s messed up.
(15:31):
So anyway, so that’s kind of like when you’re doing jury selection for these types of cases, we kind of covered the focus groups, which are vital. You’re doing product liability, you got to know what you’re going in there with. Have as many eyes on them as you can when you’re there. And whenever you’re selecting the jury, Jonathan, you’re in the moment, right? You’re not taking notes.
Jonathan Michaels (15:48):
I’m not taking notes whatsoever. I go up there, I’ve got no notes. And a lot of people, a lot of practitioners, they try to memorize the juror’s names. I don’t do that. I’m really just into the energy of it. I’m feeling your energy, and I’m trying to understand what you’re feeling, and I’m trying to, as much as I can, look into your soul and see what’s your story and understand what motivates you, what do you need to hear? And so I’ve got no notes and it’s just all about the connection and really being at one with them.
Bob Simon (16:15):
And that’s where it’s always good to have a team. And there’s always, even if you’re a young solo, there’s other lawyers that will just volunteer to help you pick a jury.
Jonathan Michaels (16:23):
Very true. I mean, I’m actually going on Sunday, I’m going to Sacramento to watch a jury trial my friend’s putting on.
Bob Simon (16:28):
Oh, nice.
Jonathan Michaels (16:29):
And I just want to go watch the experience and help him, help them, help the team. See if I can be beneficial in some way. And I’m going to learn something. Every one of these that you do, you just learn something. And so if you’re just starting out, go watch jury trials, and you’ll learn different ways and things that are effective and things that might not be effective for your style.
Bob Simon (16:48):
And that’s, the hardest part to learn as a trial lawyer is jury selection, to learn how to get jurors offer cause. And we could do a whole seminar or a whole podcast on this, and maybe we will. But the thing is, it’s a lot of practice. Have people there that know what they’re doing, have mentors. There’s literally people that’ll sit next to you to help you pick these juries. And the televised trials are great, but they don’t do jury selection just for privacy issues, many of them.
Jonathan Michaels (17:12):
Yeah, that’s unfortunate really. I mean, we’ve been on CVN, it’s great to be on CVN, you see the trial. But the jury selection, that’s where a lot of the magic happens.
Bob Simon (17:19):
Yeah. And for CVN, it’s a Courtroom Viewer Network? Is that what it’s called?
Jonathan Michaels (17:23):
Yeah, Courtroom View Network, I believe.
Bob Simon (17:24):
Courtroom View. I’ve had one on there too. You can pay a subscription and watch live trials, recorded trials. A great, great tool.
(17:31):
And something for, to analyze, have you taken all of your trial transcripts and comb through them or use any type of AI to be able to help you story arc and do stuff in the future?
Jonathan Michaels (17:43):
I don’t. Every trial, whether I win or I lose, I’m just sort of traumatized from the whole experience. And I get the transcripts, everyone wants to read them. I send them out to anyone who wants them. I just can’t go back and look at it. And even I had a great opening or a great closing, I just can’t. I replay it over my head again and again and again, but I just don’t go back and read it. I just can’t.
Bob Simon (18:03):
So tell us some of the technical stuff for our listeners. The Tesla Autopilot, what are the defects? We talked failure to warn 90th page of the thing. Walk us through the cause of action and why it’s effective.
Jonathan Michaels (18:16):
So the Autopilot, it’s just not ready for primetime. It’s just not. Many people don’t know this, but the Tesla Autopilot is actually in beta.
Bob Simon (18:27):
Oh, no. I didn’t know that.
Jonathan Michaels (18:28):
It’s in beta. It’s in beta. Which if you look up the Merriam-Webster’s definition of beta, it’s a product that is not yet ready for production. So they have this in beta. They know it’s in beta. They send it out and it just isn’t, is just not there. The product is just not ready.
(18:44):
And here’s the thing that people find to be not surprising, but downright shocking. Do you know that there is no regulation, there’s no federal regulation, no state regulation over autopilot whatsoever?
Bob Simon (18:55):
Really?
Jonathan Michaels (18:55):
None. Zero.
Bob Simon (18:56):
And when they do do the federal regulation, they’ll start a committee that’s just the auto manufacturers that are head of the committees that write their own rules. A lot of people don’t know that. They literally will have their own, they’re governed by their own people. It’s crazy.
Jonathan Michaels (19:07):
They are. And even that for the autopilot, it’s a ways out. So right now it’s the Wild, Wild West. And that’s why I think this is such a ripe opportunity.
(19:17):
And one of the motivating factors for us doing the Tesla case, look, one, you want to win for sure, and you want to help your client. But the other is to bring publicity to this issue that’s just been lurking in the shadows for years. And we succeeded in that in spades.
Bob Simon (19:30):
So let’s go through the defects. One, they’re and the beta. How does it fail? And then what is the failure to warn, the consumer expectation test? Let’s walk through.
Jonathan Michaels (19:40):
So it’s in beta and it’s doing several things. One is it’ll steer when it shouldn’t steer. It’ll not stop when it should stop. I mean, we’re seeing this time and time again. And there are just a number of conditions where it just won’t work properly. I mean, right now we’ve got nine Tesla Autopilot cases.
(20:00):
We just actually picked up a case last month where, true story, there is a family, young family, and they’re driving across country 80 miles an hour down an open country road on autopilot. And there’s a firetruck that was pulled over to the side, partially sticking out in the lane, which they’re supposed to do to protect the motorists that they’re helping. And the Tesla Autopilot just drove straight into the back of the firetruck at 80 miles an hour.
Bob Simon (20:20):
Wow. Oh my God.
Jonathan Michaels (20:21):
I mean, it’s just not ready for prime time. And the problem is when you’re using the autopilot, you’re not really being hypervigilant. And if you are being hypervigilant, then what do you need the autopilot for? So you’re looking around, you’re chit-chatting, you might have your hands on the wheel, but you’re not just really paying attention. And there’s a concept called automation complacency where the brain-
Bob Simon (20:40):
Automation complacency?
Jonathan Michaels (20:42):
Automation complacency, where the brain starts to, the reaction time is drastically slower than if you’re driving.
Bob Simon (20:51):
Oh.
Jonathan Michaels (20:51):
So people just get lulled into a sense of security and it’s-
Bob Simon (20:54):
I see. That’s probably a human factors issue that you have in trial. Interesting.
Jonathan Michaels (20:56):
It’s a big human factors issue. So for example, if you’re driving 70 miles an hour and there’s a car that stops in front of you, you have to see it, your brain has to process it, tell your foot to stop, and then your foot actually presses a break. That takes about 1.6 seconds if you’re driving. When you’re using on autopilot 3.6 seconds.
Bob Simon (21:14):
Wow. Because you’re, that expectation that it’s helping you.
Jonathan Michaels (21:17):
Yeah. You’re just not paying attention the same way. I mean you might be-
Bob Simon (21:20):
That makes total logical sense.
Jonathan Michaels (21:21):
Yeah. Say you’re falling asleep or daydreaming, but you’re just not, I mean that’s the whole point of having autopilot. And if you’re being hypervigilant, then why do you need autopilot?
(21:31):
And here’s another thing that I think people find surprising. So there’s six different levels of automation from level zero, which is zero systems like back in the 1950s, just gas pedal on a brake, all the way up to a level five. So zero and then one, two, three, four, five. Five is fully automated. And if you ask people, “Where is the Tesla Autopilot system?” Which by the way, they also call full self-driving, full self-driving. People think it’s probably a four or a three. It’s actually a level two system.
Bob Simon (21:59):
Really?
Jonathan Michaels (21:59):
It’s a level two system.
Bob Simon (22:00):
That one thing that I was jokingly telling people when it first came out, I was like, “You know what the best thing is they can’t even advertise it for? Is you can be drunk as a skunk, put on autopilot, at least help guide you home.”
Jonathan Michaels (22:11):
Yeah. And we actually have that case as well.
Bob Simon (22:13):
Really?
Jonathan Michaels (22:14):
We have someone in the Midwest was coming out a bar really, really wasted, they put on autopilot because they thought that was the best thing to do. Autopilot started driving down the wrong side of the street.
Bob Simon (22:23):
Oh, Lord.
Jonathan Michaels (22:23):
And went head on into a motorist.
Bob Simon (22:25):
And again, the challenge of that case is, yeah, Tesla screwed up, they weren’t ready for prime time, but-
Jonathan Michaels (22:30):
What’s he doing drinking and driving? And what’s-
Bob Simon (22:32):
I mean, yeah. And that’s a challenge. I think that’s the altruistic thing that what you’re doing is you know you’re going into that courtroom and you’re likely going to have some sort of fault on your person.
Jonathan Michaels (22:41):
You will. And the more-
Bob Simon (22:43):
You embrace that.
Jonathan Michaels (22:43):
You do, and you have to lean into it. And so the more people start to understand the deficiencies with this, the more publicity, just the better it is for all of us.
Bob Simon (22:53):
And there are, just for our listeners, there’s some states that are better than others for trying product liability cases. California’s a pure what’s called comparative state. So even if your person’s 99% responsible, the jury says they’re 1% responsible, there’s still recovery. But there’s some states where your person can be, has to be less than 1%.
Jonathan Michaels (23:11):
Yeah. So I mean we have-
Bob Simon (23:12):
Virginia.
Jonathan Michaels (23:14):
Right. So Virginia, I mean if you have really any, it’s a complete bar. If you’re 5% at fault, it’s a complete bar. In most states other than California, California’s on the one extreme, Virginia’s on the other. But there’s a lot of states that you’re 50% responsible-
Bob Simon (23:27):
50.
Jonathan Michaels (23:27):
… it’s a bar.
Bob Simon (23:28):
That’s like Massachusetts is like that and others. So you just be cognizant of whenever you have a product liability case, there’s others, there’s a chain of people. It could be even Amazon now under some law, but it depends on who the manufacturer is, who the distributor is, who the local person was that sold it. So before you even file a case, talk to an expert like Jonathan Michaels to see, “Hey, what state is probably the best venue for this?”
Jonathan Michaels (23:51):
Well-
Bob Simon (23:51):
Because it matters. If you file in the wrong place, man, you might be dead on arrival.
Jonathan Michaels (23:54):
You could be toes. It’s funny because we have a case that’s in Indiana, which is a 50% comparative fault. And so the trial that we did earlier, the mock trial we did earlier this week, we know we’re going to win the case. I mean, it’s a home run of a case. Liability is clearly there, but our guy might have some responsibility. So we actually tried just the comparative fault issue and the jury came back 15% against our guy, 85% against Tesla. So we’re good. But you don’t know. I mean, what if the jury comes back at 40% or 50%? I mean, do you really want to invest $1 million, $3 million of fees?
Bob Simon (24:25):
And the jury, unfortunately juries don’t know that.
Jonathan Michaels (24:27):
No, they don’t understand whatsoever.
Bob Simon (24:29):
I mean, you can message the best you can when you’re closing. Like, “Look, if you put this person more than 40% responsible, they don’t learn their lesson. This continues to happen over and over again.” You do what you can.
Jonathan Michaels (24:38):
You do what you can. But that was, would’ve beneficial for us to try that case to see what messaging they needed to hear and where they would come on the comparative fault issue. Because the case is not in California. If it was a California case, I wouldn’t have done that. But it’s an Indiana case, so we needed to.
Bob Simon (24:53):
So whenever you have, so the failure to warn, walk us through that issue and how you do it.
Jonathan Michaels (24:57):
So the failure to warn, I mean, again, they’re not, Tesla is not telling people that it’s a level two system. There’s no indication whatsoever it’s a level two system. They’re not telling people that it’s in beta with any kind of appreciable understanding. And so there’s a failure to warn that the system is going to lull you into a sense of false in security.
Bob Simon (25:17):
Security.
Jonathan Michaels (25:18):
And for Tesla, it’s even worse than that because it’s not even a failure to warn, in my view, it’s outright fraud in some instances because they’ve got videos. I mean, right now on their website, they have videos demonstrating misuse. They have videos of people driving, Tesla engineers driving their cars with no hands on the wheel whatsoever and just driving around. And you’re really educating people on how to misuse the product.
Bob Simon (25:44):
Wow, I didn’t know that. That’s crazy. And I think it was recently enough was part of your trial or if it happened too late in time. But there’s the whistleblower at Tesla, that was an engineer that came forward.
Jonathan Michaels (25:53):
We were unable to find any ex-employees that we’re able to use. And we knew of a couple and we tried to subpoena them and we were just unable to unfortunately.
Bob Simon (26:01):
And that’s when you’re fighting against Goliath here, there’s a lot of people that will literally suppress the truth.
Jonathan Michaels (26:06):
Yeah, there are. There’s just a lot. And those guys, the people, the engineers who work for Tesla, they have a lot to lose. And we actually had, I mean in that case that we just tried, we had the number two person in the entire company, the person who literally is in charge of the entire Autopilot system who reports directly to Elon Musk, he was the guy in trial.
Bob Simon (26:26):
And it’s hard when you have that person with that level of confidence backing their product and all those other things, like as a human being rather than an expert. Yeah, man.
Jonathan Michaels (26:34):
That’s true.
Bob Simon (26:35):
So before we end the show, I want our listeners, we know how to find you. What other types of cases, if people have questions about or want to co-counsel, what are you looking for?
Jonathan Michaels (26:45):
So great question. We have all types of defect cases, so clearly autopilots, but there’s also airbag non-deployments or inadvertent deployments, seatbelt cases, roof crush cases, tread separation for tires, fuel-fed fires. So any kind of a defect.
(27:02):
And I would encourage people, what we see a lot of quite frankly, is let’s say there’s a crash, just a crash in an intersection. And there might be a $35,000 policy or $50,000 policy, something where there’s a catastrophic injury and there’s just no insurance. It may be that that’s all there is, but there may also be a defect. I mean, the number of defects are just walked over because people don’t know to look for it.
(27:24):
So if you have a case where there’s a catastrophic injury, limited insurance, let us take a look. There may be a defect. I mean, quite frankly, when we have a crash, we don’t even name the other driver.
Bob Simon (27:35):
Wow.
Jonathan Michaels (27:36):
We only go after the manufacturer.
Bob Simon (27:37):
And whenever, and for those listeners that do, and if you reach out to Jonathan or his team, they’re willing to invest the time, money, and energy to take a look at it. And if there’s nothing there, they walk away and eat the costs.
Jonathan Michaels (27:48):
Yeah, we do. And we actually have a big staff. So we have engineers on staff, we’ve got accident reconstructionists on staff. And so we know how to look at this stuff very, very quickly-
Bob Simon (27:59):
Wow.
Jonathan Michaels (27:59):
… and deeply and say, “Okay, so here’s what happened.” And so we look at it and we think that’s just not there, we don’t charge anything for that.
Bob Simon (28:07):
Wow. Well, we’re at the end of the half hour here and we could probably talk forever. And I’d love to have Jonathan on again.
(28:14):
If you have any questions, go to justiceteamnetwork.com, or find our Apple Channel, or see us on YouTube. And now you know where to find Jonathan. He’s going to be hanging out at Newport Beach. But really multiple weeks across the country, different courthouses, different places of America. And for those travelers who are listening, you know the struggle. And as sexy as it sounds, staying in a Holiday Inn in the middle of nowhere, eating that breakfast food every day, that does wear on you.
Jonathan Michaels (28:37):
I’ve been there. I’ve been there a lot.
Bob Simon (28:40):
Well, ladies and gentlemen, thank you for listening to this episode of the Justice Team Podcast and thank you for listening to this Tesla Autopilot and Product Defect Masterclass.
Jonathan Michaels (28:48):
Well, thank you. It’s been a pleasure being on the show and I appreciate it.
Bob Simon (28:51):
Thank you.
