2001 Nissan Xterra suddenly, unintentionally accelerates. $36M. Yolo County.


Laborer crashes his car on employer's lot; claims car accelerated when he was braking. Flaw in design of accelerator and brake pedals is blamed.

The Case

  • Case Name: Aguirre v. Nissan North America, Inc.
  • Court and Case Number: Yolo County Superior Court / P014-1385
  • Date of Verdict or Judgment: Tuesday, September 11, 2018
  • Type of Case: Products Liability
  • Judge or Arbitrator(s): Hon. Kathleen White
  • Plaintiffs:
    Jose Aguirre, 28, laborer.
  • Defendants:
    Nissan North America, Inc.
  • Type of Result: Bench Verdict

The Result

  • Gross Verdict or Award: $36,093,664, plus costs, plus $3.5 million interest per CCP 998.
  • Settlement Amount: Plaintiff settled with the seller of the used car pre-trial for $200,000.
  • Award as to each Defendant:

    See notes.

  • Economic Damages:

    Past medical:$2,599,000

    Future medical and life care expenses: $15,333,652 

    Past lost earnings: $108,000

    Future lost earnings/capacity: $709,612

  • Non-Economic Damages:

    Past: $2,117,000

    Future: $15,330,000

  • Trial or Arbitration Time: 36 court days.
  • Post Trial Motions & Post-Verdict Settlements: Defendant has filed a Notice of Appeal.

The Attorneys

  • Attorney for the Plaintiff:

    Dreyer Babich Buccola Wood Campora, LLP by Roger A. Dreyer, Robert B. Bale, and Noemi Esparza, Sacramento.

  • Attorney for the Defendant:

    Bowman & Brooke LLP by Vincent Galvin, Jr. and Lindsey Adams-Hess, San Jose.

    Bowman & Brooke LLP by Karl Viehman, Dallas, TX.

The Experts

  • Plaintiff’s Medical Expert(s):

    Alex Barchuk, M.D., spinal cord injuries, Kentfield.

    Carol Hyland, M.A., M.S., C.D.M.S., C.L.C.P., life care planning, Lafayette.

  • Defendant's Medical Expert(s):

    Allen Kaisler-Meza, M.D., PMR, defense medical examination, Los Gatos.

    Miranda Van Horn, RN, BSN, CLCP, life care planning.

  • Plaintiff's Technical Expert(s):

    Eric Rossetter, Ph.D., P.E., accident reconstruction/vehicle design, San Francisco.

    Neil Hannemann, vehicle design, Santa Ynez.

    Toby Hayes, Ph.D., biomechanics and human factors, Corvallis, OR.

    Micky Gilbert, P.E., vehicle handling and dynamics, Arvada, CO.

    William Kitzes, product safety.

    Barry Ben Zion, Ph.D., economics, Santa Rosa.

  • Defendant's Technical Expert(s):

    James Walker, accident reconstruction/vehicle design/vehicle handling dynamics, Houston, TX.

    Michael B. James, vehicle design, Orem, UT.

    Douglas E. Young, human factors and biomechanics, Los Angeles.

    David Weiner, M.B.A., AM, economics, Los Angeles.

Facts and Background

  • Facts and Background:

    On August 29, 2012, plaintiff  entered the large, commercial lot of his employer Hines Nursery just off I-505 in Vacaville at approximately 6:30 a.m. at the wheel of a 2001 Nissan Xterra that he bought used three years prior to this incident. He was employed there as a minimum wage laborer. He lived with his significant other and their two small children.

    Plaintiff alleged that as he crossed the dirt-and-gravel lot at approximately 10-15 mph, the vehicle accelerated suddenly and without warning between 100’ and 200’ away from an elevated dirt ramp that was itself bordered by a short concrete wall. The ramp was 40’ wide. A 53-foot-long trailer was parked on the opposite side of that ramp. Plaintiff alleged that he applied the brakes and tried to control the Xterra’s path but that despite these efforts, the Xterra hit the concrete ramp at a speed of 30-35 mph, then vaulted up and onto the dirt ramp, where it touched down before dropping onto the ramp’s opposite side. Responding law enforcement personnel did not adequately document the scene, including witness marks on the ramp.

    After striking the ground on the other side of the ramp the Xterra submarined under the trailer, and continued forward until the vehicle’s A-pillars met the sides of the trailer. The front of the Xterra above the doorsills crushed in an accordion-style collapse. There was also massive crush damage to the area of the driver’s footwell. Specifically, the impact with the trailer and a spare tire carrier mounted under the trailer crushed the engine compartment and, ultimately, the firewall downward, rearward, and toward the outboard side of the driver’s side sufficiently to entrap plaintiff’s lower body in the vehicle, requiring a lengthy extraction by first responders.

    The Xterra was equipped with a manually operated, mechanical Accelerator Pedal Arm (“APA”). Two principal original Nissan components were at issue in this case: the APA and its subcomponents, and the Parking Brake Bracket (“PBB”). On the evidence adduced at trial, Nissan’s design and manufacture of these two components was defective. Nissan’s design required installation of the APA with less than 10 mm (1/3”) of distance between these two components. Variations in tolerances of these components reduced that distance by as much as 6 mm or less; in some exemplars the clearance was zero mm. Plaintiff’s liability experts demonstrated in exemplars, including exemplars owned by Nissan, that foreseeable operation of the accelerator pedal caused entrapment in roughly 25% of Xterra models with these components.

    The evidence at trial was that as Mr. Aguirre drove at 15 mph across the Hines lot, the parking brake bracket trapped the outside right edge of the accelerator pedal, causing the Xterra to accelerate. The strongest evidence of this: the accelerator pedal was trapped on top of the brake bracket post-collision.

    Plaintiff’s first language is Spanish. Over the next two years, various doctors asked him to describe what happened in the crash. He was unable to recall or report much in the way of detail.  Over time, Mr. Aguirre’s memory of events gradually improved. By the time of his deposition in April, 2016, he was able to articulate an increasing number of details related to the sudden unintended acceleration event.  By the time of trial, six years post-event, he was able to recall even more.  

  • Plaintiff's Contentions:

    That, by design, the distance between the outermost right edge of the top of the accelerator pedal arm and the outermost left edge of the parking brake bracket was 10 mm, or 1/3”. Plaintiff claimed that as part of the manufacturing process, variations in the top of the pedal arm could reduce that distance by an additional 4-6 mm.

    That the vehicle driven by plaintiff was between 107 and 203 feet from the side of the concrete wall adjacent to the ramp when the vehicle began to accelerate.

    That the close proximity of the accelerator pedal and parking brake bracket created a significant risk of a sudden unintended acceleration event.

    That anticipated tolerance variations in the manufacturing process could further reduce the nominal 10 mm clearance between these two critical components, further increasing the likelihood that the parking brake bracket would entrap the accelerator pedal arm during foreseeable operation of the gas pedal, leading to a sudden unintended acceleration event. 

    That the parking brake bracket trapped the accelerator pedal in plaintiff’s Xterra as he was crossing the Hines lot at 15 mph, causing the vehicle to accelerate suddenly to a speed of 30-35 mph, and that sudden acceleration began so close to the ramp’s cement wall that plaintiff was unable to avoid a collision.

    That crash testing conducted by defendants was not sufficiently similar to the subject incident to have any evidentiary weight at trial.

    That defendant’s accelerator pedal studies were inherently flawed because: 1) they were conducted in a vehicle where foreseeable operation of the accelerator pedal could not possibly result in contact between the pedal and brake bracket; 2) Nissan owned exemplar vehicles in which contact would occur but did not use those vehicles; and 3) the study did not measure the effect of foreseeable pedal operations on actual clearances between the accelerator pedal and brake bracket, and were thus meaningless.

  • Defendant's Contentions:

    Defendant contended that the accident was the result of driver error.

    That the evidence showed plaintiff was applying the accelerator pedal and failed to control the speed and direction of the vehicle by braking or steering away from obstacles. Plaintiff testified that when he applied the brake, the vehicle went faster. He also testified that he did not attempt to turn the wheel to one side or the other to avoid the impact with the ramp. All testing showed that brake application would stop or significantly slow the Xterra, even if the accelerator pedal were simultaneously applied. And plaintiff’s experts conceded that there was no evidence of failure in the brake or steering systems in the vehicle.  Despite this, with the acceleration event beginning at least 400 feet from the ramp, plaintiff had a minimum of eight seconds to react, brake, or move his vehicle to the right in this extremely wide area, which was over 200 feet wide, to avoid the crash, but failed to do so.  

    Nissan also contended that the post-crash positions of the accelerator pedal and parking brake bracket proved plaintiff was pressing the accelerator pedal – not the brake – when the Xterra hit the trailer. Nissan’s evidence showed that the post-crash position of the accelerator pedal arm and parking brake bracket required depression of the accelerator pedal of at least 30% of pedal travel, and that the crush damage to the engine compartment and driver footwell area caused the parking brake bracket to move toward the driver, down, and toward the outboard side of the driver’s side of the vehicle. This allowed the parking brake bracket to move between the top of the pedal arm and the firewall, because the pedal was depressed at the time the crush occurred.

    Further, that crash testing demonstrated the pedal arm would not have remained caught on the parking brake bracket throughout the crash sequence, and also demonstrated that the Xterra hit the wall at roughly 50 mph.

    Further, that there was evidence of driver inattention or error. The evidence showed that plaintiff entered the parking lot at 10-15 mph at the southwest corner of the open lot and that he was headed toward the entrance to an employee parking lot located in the southeast corner. Despite this, he drove roughly diagonally across the 1300-foot open lot toward the ramp and trailer, which were well north of the entrance to the employee parking lot.

    Nissan objected to plaintiff’s experts’ demonstration of catching the top of pedal arm on the parking brake bracket on the grounds that the demonstration involved an unnatural pedal movement and application of significant lateral force when there was no evidence of such a motion by plaintiff. Nissan’s evidence showed that the repeated efforts of plaintiff’s experts to attempt to catch the pedal on the parking brake bracket, sometimes using their hands to do so, deformed the pedal arm and made it capable of catching in a way not seen in the design condition.

    Finally, that there were no prior incidents in which the top of a pedal arm had become caught on the adjacent parking brake bracket, out of a population of more than 250,000 vehicles with the same design.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiff sustained loss of consciousness, a concussion, scalp avulsion, cervical spine fractures, spinal cord injury with incomplete quadriplegia, abrasions, and left second finger avulsion and fracture.

    Plaintiff underwent a C5 corpectomy and C6 partial corpectomy; microdissection with decompression of spinal cord; anterior C4 to C6 arthrodesis/instrumentation; posterior C4 to C7 arthrodesis/instrumentation; and left frontal scalp irrigation and closure, followed less than a month later by an anterior cervical decompression and fusion of C4 to C6 and a posterior spinal fusion C4 to C7.

    An incomplete quadriplegic, plaintiff is permanently wheelchair bound. He has extremely limited use of his right hand. Plaintiff requires 24/7 attendant care. Nissan stipulated to the costs of past medical care of $2,599,000. Although Nissan disputed the future costs of plaintiff’s care, defendant did not dispute the general nature of plaintiff’s injuries. Plaintiff was provided workers' compensation benefits and continues to receive all of his medical care through worker’s compensation benefits.

Demands and Offers

  • Plaintiff §998 Demand: $17,500,000
  • Plaintiff Demand during Trial: $30,000,000
  • Defendant Final Offer before Trial: Confidential mediation offer.

Additional Notes

Yolo County Superior Court assigned the case to the Hon. Kathleen White on April 9, 2018. Judge White spent three days on motions in limine. The Court called a jury panel, which filled out juror questionnaires. Just before the Court summoned the panel, Plaintiff waived jury. Nissan then also waived jury. As a result, Judge White sat as the trier of fact. The Court found that: 1) Nissan defectively designed the produce; 2) Nissan defectively manufactured the product; and 3) Nissan was negligent in product design and manufacture.

The Court did not apportion any fault to plaintiff.

Because the verdict amount exceeded the 998 demand, the Court awarded plaintiff an additional $613,649.59 in costs, plus $3,508,078.05 in past interest, and interest at the calculated rate of $10,060.41 per day in post-judgment interest.