IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
*******************************
PETER PHILIP )
) CASE NO ST 2014 CV 00543
PLAINTIFF )
)
v )
) COMPLAINT FOR DAMAGES
TOYOTA MOTOR NORTH AMERICA INC )
TOYOTA MOTOR ENGINEERING & ) J URY TRIAL DEMANDED
MANUFACTURING NORTH AMERICA )
INC TOYOTA MOTOR SALES U S A INC ) PUNITIVE DAMAGES SOUGHT
TOYOTA MOTOR CORPORATION )
TOYOTA DE PUERTO RICO CORP and )
LAMBERT HILTON INC D/B/A/ TOYOTA )
OF ST THOMAS ) Cite as 2023 VI Super 72U
)
DEFENDANTS )
.__________—)
NOT FOR PUBLICATION
MEMORANDUM OPINION AND ORDER
‘1 Pending before the Court is Defendants Toyota Motor Sales, USA, Inc ( TMS’ ) and
Toyota Motor Corporation’s ( TMC”) (collectively, Toyota ) Motion for Protective Order
Limiting the Scope of Rule 30(b)(6) Deposition Regarding Other Incidents PlaintiffPeter Philip
(‘ Philip ) opposed Toyota 5 motion For the following reasons, Toyota 5 motion for protective
order will be granted in part and denied in part
I FACTUAL AND PROCEDURAL HISTORY
‘T2 In his complaint filed on November 21, 2014, Philip alleges that on April 12 2014 his
2006 Toyota Highlander Hybrid vehicle suddenly and without warning uncontrollably accelerated
careened out of control up a stone wall embankment, became airborne, landed on a driveway and
eventually crashed into a residence Philip claims that the unintended acceleration was caused by
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a defect in the vehicle’s electronic throttle control system with intelligence ( ETCS i ) ' More
generally, Philip asserts that Toyota vehicles with ETCS i are vulnerable to unintended and sudden
acceleration
113 On July 28 2016 and July 29 2016 Philip conducted depositions of TMS and TMC
corporate officers However, the parties could not agree whether it was permissible to depose the
designees regarding (1) “other incidents’ in which Toyota vehicles have crashed due to unintended
acceleration and (2) a March 19 2014 Deferred Prosecution Agreement (‘ DPA”) between TMC
and the Office of the Attorney General for the Southern District of New York As a result,
Defendants moved for a protective order seeking to bar Philip from deposing TMS and TMC 5
Rule 30(b)(6) designees on those disputed issues
114 On November 10 2017 the Court issued a Memorandum Opinion2 and Order in which the
Court ordered that the 30(b)(6) deposition of TMC may proceed regarding the March 19 2014
DPA provided the deposition questions are narrowly tailored to concern vehicles with ETCS i
defects that occurred between January I 2004, and April 12 2014 The Court’s ruling resolved
the parties dispute regarding the DPA The Court 5 November 10 2017 Order only partially
resolved the scope of the deposition regarding other incidents in which Toyota vehicles have
crashed due to unintended acceleration Phlllp v T0} om Moro; North America Inc , 2017 V I
LEXIS 158 *6 (Super Ct V I November 10 2017) The Court in addressing the other
incidents’ dispute ordered that
The 30(b)(6) depositions of Toyota Motor Sales and Toyota Motor Corporation may
proceed regarding (l) lawsuits filed against TMS and TMC regarding unintended
acceleration caused by ETC system defects that occurred between January 1, 2004 and
' The parties and the Court have used different acronyms for the Electronic Throttle Control System with
Intelligence They have used ETC system ETCS I or ETCS i
2Dunston J signed the Memorandum Opinion and Order on November 10 2017 but it was entered by the Court on
November 17 2017
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April 12 2014, (2) communications between TMS and TMC and other Defendants
regarding unintended acceleration of Toyota vehicles caused by ETC system defects that
occurred between January 1, 2004 and April 12, 2014 and (3) other incidents in which
Toyota vehicles crashed due to unintended acceleration caused by ETC system defects that
occurred between January 1 2004 and April 12 2014
Intending to have the parties work together to set reasonable limitations on the extent of the inquiry
during the depositions the Court further ordered that before the resumption of the Rule 30(b)(6)
depositions, (1) ‘ Plaintiff shall devise new parameters in an effort to limit the scope of Plaintiff’s
discovery inquiry regarding lawsuits arising from, and internal corporate communications
regarding, unintended acceleration incidents occurring between January 1, 2004, until April 12,
2014, in order to lessen Defendants burden when preparing the Rule 30(b)(6) designees for their
depositions ’ and (2) the parties will meet and confer to attempt to narrow the scope of discovery
consistent with the Memorandum Opinion ’
‘5 In compliance with the Court s Order, the parties conferred extensively but could not arrive
at a compromise In addition to parties exchange of letters and emails, Toyota conducted a WebEx
PowerPoint presentation on March 5, 2018 Toyota offered expert James Walker for deposition to
answer questions, and on August 2, 2018, Philip deposed James Walker Toyota also provided
Philip with the August 15 2018 Declaration of expert Harold Clyde Toyota also claims that Philip
had access to relevant information in the expert report of Toyota 3 designated experts and
depositions transcripts of Toyota 5 corporate representatives On October 5, 2018, TMS and TMC
again moved for a protective order limiting the scope of the Rule 30(b)6) deposition regarding
“other incidents ’ The motion has been fully briefed, and this Court heard arguments on the motion
on September 6 2023 On September 13 2023 Toyota informed the Court that the parties had not
reached any further agreement concerning the issues raised in their October 5, 2018, Motion for
Protective Order Limiting the Scope of Rule 30(b)(6) Deposition Regarding Other Incidents
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11 DISCUSSION & ANALYSIS
16 Rule 26(b)(1) of the Virgin Islands Rules of Civil Procedure provides that, [u]nless
otherwise limited by court order the scope of discovery is as follows Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense Information
within this scope of discovery need not be admissible in evidence to be discoverable 3 When
determining the extent of discovery the key factor to consider is the relevance of the information
rather than its admissibility at trial Donastorgt Walker 2019 VI LEXIS 66 *6 (V1 Super Ct
July 1 I, 2019) (noting that the singular factor for determining whether information is discoverable
is its relevance) In this matter, the Court previously held that a party’s discovery requests should
be considered relevant if there is any possibility that the information sought may be relevant to the
party 5 claim Philip 2017 VI Lexis 158 at 4 The Court is afforded broad discretion in
determining the relevancy of information sought and discovery is often liberally granted to permit
parties a fair opportunity to develop their causes of action or defenses Guardzan Ins Co v Estate
omeght Dawd 2014 V 1 LEXIS 159 *5 (V I Super Ct Sept 2 2014)
117 Rule 401 of the Virgin Islands Rules of Evidence defines relevant evidence as ‘ evidence
that has any tendency to make a fact more or less probable than it would be without the evidence
and is ‘of consequence in determining the action ” V I R E Rule 401; see also Thomas v People
ofthe Virgin Islands 60 V I 183 196 (V I 2012)(explaining that the ‘test for relevance is whether
proffered evidence has am tender“) to make the existence of any fact that is of consequence’
to the determination of the action more probable or less probable than it would be without the
evidence ) Virgin Islands Courts have interpreted what constitutes relevant evidence at the
3VI}! cw P 26(b)(l)
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discovery stage broadly See e g , Samuel v Century [-1le Inc , 2020 VI LEXIS l6 *6 2020
(VI Super Ct Feb 25 2020) (explaining that the “any tendency language in Rule 401 makes
relevance standard very easy to satisfy does not require the evidence to be dispositive of a fact in
issue and simply makes the existence or non existence of a fact more or less likely) However, V I
R Civ P 26(c)(l) allows a party to move for a protective order limiting the scope of discovery or
disclosure to specific matters A court may for good cause issue a protective order “to protect a
party or person from annoyance, embarrassment oppression or undue burden or expense relating
to discovery requests 4
{IS In its November 2017 Order, this Court, recognizing that it would be burdensome for
Toyota 5 Rule 30(b)(6) designees to answer questions regarding unintended acceleration caused
by ETCS i defects in all Toyota vehicles given the sheer volume of such incidents ordered Philip
to devise new parameters for the depositions limiting the scope of the discovery inquiry Plultp
2017 V l LEXIS 158 at 6 To achieve consensus in narrowing the scope of the depositions, the
Court ordered the parties to meet and confer before conducting Rule 30(b)(6) depositions of
Toyota Id The Court suggested Toyota provide Philip with information regarding the similarities
and differences of the ETCS i in the 2006 Toyota Highlander and other Toyota models during the
meet and confer Id The Court explained that “[a]t this stage in the proceedings it is unclear
whether the ETC system in a 2006 Toyota Highlander differs significantly from the ETC systems
in other Toyota models Philip is entitled to utilize discovery to determine whether other incidents
of unintended acceleration in Toyota vehicles are substantially similar to the incident involving
Philip 8 vehicle 1d at 4 5
‘VlR Civ P 26(6)“)
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119 Toyota urges the Court to limit the scope of other incidents of unintended acceleration
caused by ETCS i defects that Philip may inquire about during the Rule 30(b)(6) deposition of
Toyota 5 designees to the 2006 2010 Toyota Highlander Hybrid and the 2006 2008 Lexus
RX400h Toyota claims that the scope of Philip s intended examination of Toyota 5
representatives at the deposition is oppressive and unduly burdensome and seeks discovery of
matters that are not relevant to Philip’s claims To justify its recommended limitations on the scope
of the other incidents deposition questioning Toyota claims that they have provided Philip with
extensive evidence to distinguish the 2006 Toyota Highlander Hybrid and its ETCS i from all non
hybrid model vehicles equipped with ETCS i and also have provided sufficient evidence to
distinguish the 2006 Toyota Highlander Hybrid and its ETCS i from the ETCS i featured in certain
other hybrid models Toyota complains that Philip offered no limitation beyond the parameters
outlined in the Court 5 November 2017 Order
1|10 In his opposition brief, Philip asserts that Toyota 5 presentation did not demonstrate that
the ETCS i in the 2006 Highlander Hybrid is any different than the ETCS i system in other Toyota
vehicles Philip further argues that there should be no limitation on ‘ other incidents’ inquiry at
the deposition as all Toyota vehicles equipped with electronic throttle control use a computer or a
microprocessor or a couple of microprocessors This Court is not persuaded by Philip s
oversimplified comparison, which fails to take into account the distinctive and unique features
between the hybrid and non hybrid Toyota vehicles
1l 1 In substantiating its proposed limitations on the scope of the deposition Toyota argues that
in all Toyota vehicles sold since 2006, the throttle valve is controlled electronically, however, there
are significant differences between vehicle models and vehicle series “which cannot be swapped
out from vehicle to vehicle Toyota claims that any defect found in the ETCS i would be unique
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to the make and model series of the vehicle based on differences in hardware and software
Specifically, they argue extensively that the ETCS i differs significantly between hybrid and non
hybrid vehicles The following are some of the unique features of the hybrid vehicles and
differences between the hybrid and non hybrid ETCS i vehicles that Toyota highlights
(1) In the non hybrid vehicles equipped with ETCS i, the vehicle 5 acceleration force
is solely provided by the internal combustion engine, and the ETCS i controls all
the acceleration force provided by the vehicle In contrast, the hybrid vehicle
integrates a hybrid powenrain system called the Hybrid Synergy Drive, which uses
the combined energy of a gasoline powered combustion engine and electric motor
generators powered by high voltage batteries to provide the vehicle acceleration
force
(2) Hybrid vehicles have a Hybrid Electronic Control Unit ( Hybrid ECU )
(3) When a driver depresses the accelerator pedal in a hybrid vehicle, the accelerator
pedal sensors measure the depression of the pedal and send an electronic signal to
the Hybrid ECU The Hybrid ECU calculates the Hybrid Drive output acceleration
force based on this input signal, vehicle speed, and the high voltage battery charge
(4) The Hybrid ECU may command acceleration force from the engine the motor
generators or both The Hybrid ECU constantly monitors and adjusts the operation
of the engine and motor generators to optimize performance and fuel economy
(5) The Hybrid ECU directs the operation of the ETCS i control monitoring, and
failsafe functions The Hybrid ECU contains software that monitors the Hybrid
Drive powenrain and employs fail safe functions if an abnormality is detected
(6) The ETCS i in hybrid vehicles only controls the acceleration force provided by the
engine when the engine operates the ETCS I and its software do not control or
monitor the acceleration force provided by the electric motor generators, making
the function and operation of the ETCS i in hybrid vehicles different from the
function and operation in non hybrid vehicles
(7) The engine control software used in the non hybrid Highlander is not
interchangeable with the engine control software of the hybrid Highlander
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(8) The hybrid braking system differs significantly in design and operation from the
hydraulic braking system used in non hybrid Toyota vehicles
(9) The hybrid vehicle has a brake by wire system that provides the deceleration force
for the vehicle when applied and can regenerate electrical energy for the high
voltage battery during the vehicle braking
(10) The hybrid brake system differs from the hydraulic brake system used on non
hybrid vehicles because of the Part Protection Logic ( PPL ) function in the Hybrid
ECU When the Hybrid ECU receives an acceleration request and a deceleration
request the Hybrid ECU can engage the PPL function and cut the fuel flow to the
internal combustion, which reduces the Hybrid Drive vehicle acceleration force,
causing the vehicle to slow down
Toyota argues that because of these significant differences between hybrid and non hybrid
vehicles equipped with ETCS i, non hybrid vehicles should be excluded from the population of
vehicles addressed at the deposition The Court agrees Permitting the discovery of non hybrid
vehicles when the ETCS i differs significantly between hybrid and non hybrid vehicles is
essentially the equivalent of comparing apples to oranges
T12 Philip has provided no information to refute Toyota 5 contention that the ETCS i and
braking system in hybrid Toyota vehicles differ significantly in hardware, software, operation, and
design from the ETCS i and braking system in non hybrid vehicles Without providing any
legitimate basis for doing so, Philip asks the Court to unjustifiany reject the scientific and
engineering information provided by Toyota The Court declines to do so For the information to
be relevant it must fall within some bounds of similarity Moreover, whether a product is defective
must be judged within the technological milieu existing when the product is manufactured Toyota
has demonstrated that the ETCS i differs significantly between hybrid and non hybrid vehicles
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Thus, the relevant information in this instance is “other incidents” of unintended acceleration in
hybrid vehicles using similar technology at a defined manufacturing period
T13 Toyota next argues that the 2006 Hylander Hybrid differs from other hybrid models and
subsequent year models As stated above, Toyota proposes expanding the deposition inquiry to
include the 2006 2010 Toyota Highlander Hybrids and 2006 2008 Lexus RX 400h vehicles
Toyota claims that the differences between this subset of hybrid vehicles and other hybrid vehicles
render other incident discovery of other hybrid vehicles irrelevant Specifically Toyota claims
that the component part such as engine model, engine cylinders, engine size, drive motor
transaxle model accelerator pedals, throttle body, Hybrid ECU, and engine control of the various
hybrid vehicles have different part numbers Toyota argues that a different part number for the
component part means the part is not interchangeable Given the broad scope of discovery under
the Virgin Islands Rules of Civil Procedure, this Court does not consider the differences in
component part numbers among hybrid vehicles to be so significant as to render inquiry of “other
incidents ’ of other hybrid vehicles irrelevant Toyota has not presented information to support a
finding that the design, engineering and technology used in different models of hybrid vehicles
vary so significantly from one model of hybrid Toyota vehicles to the next that other hybrid
vehicles in the same series or period should be excluded from discovery Rule 26(b)(1) of the
Virgin Islands Rule of Civil Procedure permits a party to discover any nonprivileged matter that
is relevant to any party's claim or defense, even information that is not admissible at trial, so long
as the discovery is reasonably calculated to lead to the discovery of admissible evidence ’ Molloy
v Independence Blue Cross 56 V1 155 169 (V I 2012) Hence the Court will not limit
discovery to the 2006 2010 Toyota Highlander Hybrid and the 2006 2008 Lexus RX 400h as
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suggested by Toyota, but will expand the scope of discovery to include all Toyota hybrid vehicles
within the 2006 2010 series
111 CONCLUSION
1114 Based on the foregoing, the Court does not find information regarding other claims or
lawsuits regarding unintended acceleration in non hybrid Toyota vehicles to be relevant to
establish a design defect in Plaintiff’s 2006 Toyota Highlander Hybrid that led to the crash on
April 12 2014 and is the subject of this lawsuit The Court finds that the proper, reasonable, and
relevant inquiry of Toyota’s corporate representatives should be other incidents occurring between
January 1, 2004, and April 12, 2014, relating to all models of Toyota hybrid vehicles within the
2006 2010 series Accordingly, it is hereby
ORDERED that the Toyota Defendants Motion for Protective Order is GRANTED IN
PART AND DENIED IN PART and it is further
ORDERED that the Rule 30 (b)(6) deposition of the Toyota Defendants regarding other
incidents of unintended acceleration shall be limited to incidents occurring between January 1,
2004 and April 12 2014 relating to all models of Toyota hybrid vehicles within the 2006 2010
series
ORDERED that copies of this order shall be distributed to counsels of record
Dated November 16, 2023 at film
CAROL THOMA ACOBS
ATTEST Judge of the Superior Court
Tamara Charles of the Virgin Islands
Cler e C urt
53%
Latoya Camacho
Court Clerk Supervisor 11 / go / 31L
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John
Peter Philip, Case Number: ST-2014-CV-00543
Plaintiff Action: Damages
v.
Toyota Motor North America, Inc. et al,
Defendant.
NOTICE OF ENTRY
OF A
MEMORANDUM OPINION AND ORDER
To: William Avery Thomas, Esq. Simone R.D. Francis, Esq.
Marjorie Beth Whalen, Esq.
Christopher A. Kroblin, Esq.
Please take notice that on November 20, 2023
a(n) Memorandum Opinion and Order
dated November 16, 2023 was/were entered
by the Clerk in the above-titled matter.
Dated: November 20, 2023 Tamara Charles
Clerk of the Court
By:
Danica A. Miller
Court Clerk II