D Tm v. Ford Motor Company ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JANIQUA MORGAN as Next Friend of TM, a UNPUBLISHED
Minor, August 17, 2023
Plaintiff-Appellant,
v No. 362260
Macomb Circuit Court
FORD MOTOR COMPANY and ADIENT US, LC No. 2021-004257-NP
LLC,
Defendants-Appellees,
and
LEAR CORPORATION, BROSE NORTH
AMERICA, INC., and MAGNA INTERNATIONAL
OF AMERICA, INC.,
Defendants.
Before: REDFORD, P.J., and K. F. KELLY and RICK, JJ.
REDFORD, P.J. (dissenting).
I respectfully dissent.
I do not believe the trial court was clearly erroneous when it concluded defendant Ford
Motor Company’s previous national counsel, who represented defendant for 25 years in product
liability actions involving seat back failure, had represented defendant Ford in matters substantially
related to plaintiff’s claims, and as such, he, and he alone, was disqualified from representing
plaintiff in her claims.
In reaching this conclusion, the trial court wrote:
In Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 604-605; 792
NW2d 589 (2010), the court stated:
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[A]ttorney's obligation to a former client derive from the principle
that the attorney's duties of loyalty and confidentiality continue even
after an attorney-client relationship concludes. But under the
common law and pursuant to the rules of professional responsibility,
the continuing duties of loyalty and confidentiality apply only to
matters in which the new client's interests qualify as both adverse to
those of the former client and substantially related to the subjects of
the attorney's former representation. Michigan Rule of Professional
Conduct 1.9(a) embodies these concepts as follows: “A lawyer who
has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter
in which that person's interests are materially adverse to the interests
of the former client unless the former client consents after
consultation.”
A number of courts around the country have examined the
circumstances under which an adverse subsequent representation
may be deemed substantially related to legal services done for a
former client. Most commonly, courts have adopted a three-part test
set forth in INA Underwriters Ins Co v Nalibotsky, 594 F Supp 1199,
1206 (ED Pa, 1984):
1. What is the nature and scope of the prior
representation at issue?
2. What is the nature of the present lawsuit against
the former client?
3. In the course of the prior representation, might the
client have disclosed to his attorney confidences
which could be relevant to the present action? In
particular, could any such confidences be detrimental
to the former client in the current litigation?
In the instant matter, plaintiff acknowledges Dawson’s representation of her in this
matter would be materially adverse to defendant Ford. Consequently, the only issue
is whether Dawson’s prior representation of defendant Ford is substantially related
to his representation of plaintiff in this matter.
Dawson’s biographical information indicates his career as a defense
attorney has embraced “extremely complex matters in the areas of product liability
(automotive and other)” including having “served as national counsel for
automotive companies on cases involving . . .seat back failure”.
Roger A. Burnett’s affidavit states he is an automotive engineer and has
been employed by defendant Ford since 1992. He is currently a technical leader in
the Design Analysis Department. Burnett’s job responsibilities include providing
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assistance to outside counsel defending seat design cases. He has personally
worked with Dawson defending defendant Ford in seat performance litigation
during which Dawson received privileged and confidential information regarding
defense strategies, proprietary documents, selection and preparation of witnesses,
discussions with engineers, seat design and seat inspections. Burnett avows
plaintiff’s complaint mirrors the same defect allegations asserted in other cases that
Dawson defended while in defendant Ford’s employ. Dawson’s knowledge and
experience gained while in defendant Ford’s employ would prejudice defendant
Ford in this matter.
Dawson’s affidavit concedes defendant Ford previously retained him to
defend against various matters including seat design defect claims in cars, vans and
SUVs. He last worked for defendant Ford in 2014. Dawson declares the Gen 2
seat design at issue in this matter is not a design that he ever defended for defendant
Ford; he denies ever seeing the Gen 2 seat design or any documents associated with
it while he represented defendant Ford.
Plaintiff’s complaint alleges defendant Ford “failed to incorporate available
alternative front seats and front seat components into the subject vehicle” and that
“alternative designs . . .were available, feasible and reasonable”. ¶ ¶ 19e and 22;
see also ¶ 24. Plaintiff’s complaint makes similar allegations against defendant
Lear (¶ ¶ 29e, 32 and 34), defendant Brose (¶ ¶ 393, 42 and 44), defendant Adient
(¶ ¶ 49e, 52 and 54) and defendant Magna (¶ ¶ 59e, 62 and 64). [Emphasis added.]
Significantly, design of the Gen 2 seat would have derived from and relied
on defendant Ford’s prior seat designs, which Dawson did provide defenses against
negligence claims for defendant Ford.
Because counsel was previous national counsel in the defense of seat back failure litigation
for 25 years, he was involved in if not lead discovery, trial strategy, case assessment, settlement
negotiations, and trial; the fact that the specific component of the vehicle which is alleged to have
failed was not one of the specific components of the vehicles for which counsel previously
defended his former clients is not outcome-determinative of whether or not the litigation and issues
are substantially related to the instant claims.
Because the trial court’s conclusion was not clearly erroneous, I would affirm the trial
court.
/s/ James Robert Redford
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