Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles -- and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer's design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, "$123 million awarded in SUV rollover", San Diego Union-Tribune, Jun. 3; Myron Levin, "Jury Orders Ford to Pay $122.6 Million", LA Times, Jun. 3) (via Bashman). "This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances," Ford spokeswoman Kathleen Vokes said. "Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road." ("Verdict ends Ford streak", Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.
Update: Jury awards $246 million in punitive damages. Ford protests that it wasn't allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, "Jury Adds Punitive Award in Ford Case", LA Times, Jun. 4).
As with all my posts, I speak for myself and not my firm or any of my firm's clients (which include Ford).
Lawsuits have been filed for years blaming automakers for exposure to asbestos found in brake pads and other auto parts, but the volume of such litigation appears to be sharply increasing. Between February 2002 and February 2003 the number of cases filed against Ford nearly doubled, from 25,000 to 41,500. "In a filing with the SEC, Ford said that it is facing a rise in lawsuits as the original manufacturers of the components have gone bankrupt over the past several years. Ford's report said, 'In most asbestos litigation, we are not the sole defendant. We believe we are being more aggressively targeted in asbestos suits because many previously targeted companies have filed for bankruptcy.'" (Robert Lane, "Asbestos Suits Costing Ford As Others Go Broke", Blue Oval News, Apr. 14; Ed Garsten, "Automakers see asbestos lawsuits rise", Detroit News, Mar. 21).
Despite objections from rival plaintiff's lawyers and others, state district judge Donald Floyd in Beaumont, Texas, has approved the settlement of a class action on behalf of consumers who own or owned recalled Firestone tires allegedly prone to tread separation. The settlement excludes anyone who has filed actual claims of personal or property injury related to the tires. Class members (other than 45 named plaintiffs who will receive $2,500 each) will get no monetary compensation, but will have the right to trade in the tires if they did not respond to the earlier recall, and Firestone has pledged another $65 million for education and safety programs. The class action lawyers, meanwhile, which include Beaumont's Provost Umphrey, will get $19 million. See our reports of Sept. 19 and Oct. 8. (Brenda Sapino Jeffreys, "Judge Approves $149 Million Firestone Tire Settlement", Texas Lawyer, Mar. 22).
Mississippi Gov. Haley Barbour says the Magnolia State's famously pro-plaintiff litigation climate may have played a role in Toyota's decision last year to locate a new plant in Texas rather than northern Mississippi. Barbour "gave reporters and legislators copies of a letter written to him last week by Dennis C. Cuneo, a New York-based senior vice president of Toyota Motor North America Inc. ...Cuneo said he led the site selection for the Japanese auto maker's newest plants and was impressed by Texas Gov. Rick Perry's commitment to changing that state's civil justice system. Cuneo wrote Mississippi is 'desirable' for its infrastructure, pool of skilled labor, quality of life and proximity to other Toyota plants and suppliers. But he said 'the litigation climate in Mississippi is unfavorable, and negatively impacts the state's business climate.'" (Emily Wagster Pettus, "Barbour: Legal climate hurt state in push to get Toyota plant", AP/Biloxi Sun-Herald, Apr. 26). Barbour was promptly assailed by lawmaker Ed Blackmon, himself a successful plaintiff's lawyer, who heads a judiciary committee in the lower house of the Mississippi legislature where he has helped to bottle up liability reform. Blackmun said he "doesn't believe tort reform played a role in Toyota's decision and said he guesses 'Maybe someone at Toyota owed (Barbour) a favor' and wrote the letter." (Geoff Pender, "House, Senate show little tort progress", AP/Biloxi Sun-Herald, Apr. 27; Shelia Hardwell Byrd, "Barbour says House needs chance to vote on tort reform", AP/Biloxi Sun-Herald, Apr. 29; "Letter shows state needs tort reform" (editorial), Natchez Democrat, Apr. 27; Julie Goodman, "Lawmaker accuses gov. of exploiting tort myth", Jackson Clarion-Ledger, Apr. 29).
The New York Times weighs in on the disaster for consumers that has resulted from the state's "vicarious liability" law. Porsche and Hyundai are the latest automakers to suspend leasing in the Empire State. "In 2002, 224,000 New Yorkers leased cars, according to the Alliance of Automobile Manufacturers. Last year, that number dropped to 142,656." (Marc Santora, "Many Carmakers Stop Leasing in New York, Citing Accident Liability Law", Apr. 24). For our earlier coverage of the issue, see Apr. 2 and links from there.
Fifteen years after the National Highway Traffic Safety Administration concluded that the explanation for supposed "sudden acceleration" in cars was that the drivers were mistakenly pressing the accelerator rather than the brake, trial lawyers continue to sue automakers, and now NHTSA has agreed to open an investigation into claims of unintended acceleration in Toyota and Lexus models. While an earlier wave of suits tended to blame cruise control malfunctions, the new favorite culprit is electronic throttle control systems. In lawsuits over the accidents, the car's brakes, which can ordinarily bring a car to a stop even when its throttle is fully open, will typically be said to have mysteriously failed as the same time as the acceleration defect was manifesting itself, although nothing will be found physically wrong with the brakes afterward.
"For more than a decade, decisions usually favored car companies and blamed drivers in unintended acceleration cases, but some recent trials and court decisions reversed that. Ford Motor and General Motors each recently lost a high-profile case. ... A Missouri jury last year ordered GM to pay Constance Peters and her husband $80 million for the crash of her 1993 Oldsmobile Cutlass, which accelerated 120 feet in reverse and into a tree while she was backing up. They blamed faulty cruise control. GM is appealing." And: "The U.S. Circuit Court of Appeals in New York in 2002 reinstated a $1.1 million judgment against Ford in the crash of a 1991 Ford Aerostar. Jurors had found that the crash was caused partly by a 'negligently designed' cruise control system." (Jayne O'Donnell and David Kiley, "Technology puts unintended acceleration back in spotlight", USA Today/Detroit News, Apr. 13)(via Reason Hit and Run). For more on the issue, see Jun. 6, 2000.
William Cecil Weeks was test-driving a car when he ran a red light and hit Vicki Hiers's pickup, ejecting her from the vehicle and causing brain damage. This, the Hiers family claims in a lawsuit filed by Michael Strickland, is the fault of Ken Isaacs Chevrolet-Cadillac in Moultrie, Georgia, because they let the 86-year-old test drive a car alone. (Lori Glenn, "Lawsuit alleges negligence in wreck", Moultrie Observer, Apr. 10). Under Georgia law, Code 40-8-76.1, item D, the auto dealer is not allowed to defend itself at trial by alleging that Ms. Hiers might not have been ejected from her pickup had she worn her seat belt, but perhaps they will be able to note that auto salespeople are not imbued with the power to hit the brakes from the passenger seat (& letter to editor May 7).
William Tucker, writing in the New York Sun (Apr. 1), explores the ruinous consequences of the state's vicarious-liability law for independent car rental agencies (via Spartacus). See our piece of last Jun. 9 as well as Jul. 14 and links from there. More: Chrysler has now joined GM and Ford in refusing to lease in New York, while Honda has resumed offering leases, but at special high prices intended to compensate for the state law. ("Chrysler to stop leasing in New York", Bloomberg/Detroit Free Press, Mar. 26)
By a vote of 276 to 139 with most Democrats opposed, the House gave its approval to a bill that would bar lawsuits against the food industry over obesity. (Christopher Lee, "House bill bans suits blaming eateries for obesity", Washington Post/San Francisco Chronicle, Mar. 11). The bill faces an uncertain future in the Senate; similar legislation is pending in many state legislatures and has passed in Louisiana. Jacob Sullum at Reason "Hit & Run" has two good commentaries on the bill. It's "disconcerting to see Congress instructing state courts to dismiss patently absurd lawsuits. I worry that it's not really necessary. I worry more that it is," Sullum writes. (Mar. 9). Sullum also catches GW law prof John Banzhaf talking out of both sides of his mouth about whether obesity lawsuits have been successful (Mar. 10).
One activist quoted in the new coverage is Ben Kelley, who in cooperation with Prof. Richard Daynard has taken a prominent role in organizing conferences advising lawyers on how to sue the food industry (see Elizabeth Lee, Andrew Mollison, "Food fans weigh in", Atlanta Journal-Constitution, Mar. 10). It turns out that this is none other than the same Ben Kelley we covered ten years ago when we examined how litigation consultants working with trial lawyers have successfully promoted bogus media coverage of alleged auto hazards, including NBC's famous use of hidden incendiary devices to portray GM trucks as prone to explode (Walter Olson, "It Didn't Start With Dateline NBC", National Review, Jun. 21, 1993.) The pro-foodmaker Center for Consumer Freedom has more on Kelley's recent activities: see Dan Mindus, "McLawsuit Lies", National Review, Oct. 29; "Trial Lawyers Up Demands On Food Companies", Oct. 30; "Update: Obesity War Loses Discredited General", Nov. 4.
MedPundit Sydney Smith thinks (Mar. 10) that the much-headlined new study purporting to find that obesity claims more lives than smoking "is, all things considered, a very weak study. Certainly too weak to be the foundation of sweeping public policy." For more of our coverage of obesity litigation, see Aug. 11, Jun. 20, Sept. 4, Aug. 6, Jul. 21, Jul. 3, Jul. 3 again, Jul. 1, Jun. 24, and a great deal more here. More: Radley Balko dissents from the bill on federalist grounds (Mar. 11)(& letter to the editor, Mar. 18).
The blue-tinged xenon headlights of the Nissan Maxima have become a popular target for thieves who rip them from a car and sell them on the black market, including 277 incidents in Newark alone. The State of New Jersey, noting the epidemic of thefts in its state, has decided to take action -- by suing Nissan. Nissan should have anticipated that its customers would be victimized, says the State, and warned them before they bought the car. (Ronald Smothers, "Nissan Sued Over Theft-Prone Headlights", NY Times, Mar. 9; Crissa Shoemaker, "Lawsuit: Nissan withheld headlight theft risk", Courier-News, Mar. 9; Mitch Lipka, "Headlight theft wave spurs state to sue Nissan", Philadelphia Inquirer, Mar. 9). According to a recent article in the Boston Globe, Nissan was a leader in taking steps to prevent headlight thefts, so if this suit has legs, look for copycat lawsuits against other auto manufacturers--and this ludicrous theory of liability could end up being extended to other car parts or even carjackings. (Peter DeMarco, "Left in the dark", Boston Globe, Feb. 26; Rod Gibson, "Most-stolen cars? It's debatable", bankrate.com, Sep. 23, 2003).
On October 9, 1999, a construction zone on Interstate 70 near Warrenton, Missouri, was slick after a hard rain. An eastbound tractor-trailer hydroplaned, hit the median, and flipped over, blocking the westbound lanes. John and Shirley Mathes, driving a Ford pickup pulling a camper trailer with propane tanks, slammed into the 30-ton trailer at 60 miles per hour, and were then sandwiched by another pickup truck driving 50 miles per hour. The Matheses and their grandson died in the crash, though it was a matter of dispute whether they survived the initial impacts; medical examiners on both sides of the case found no evidence that they had.
The deep pocket in the case was Ford, and a Jackson County jury decided that, in a case where three vehicles were traveling too fast, and all three leaked fuel and ignited, it was Ford that should be legally responsible for $12.5 million in damages because the pickup truck's fuel tank -- which met a crash test three times more severe than the federal safety standard -- was "defective" for not remaining intact in such a dramatic collision. (Dan Margolies, Kansas City Star, "Ford told to pay $12.5 million", Mar. 5; AP, Mar. 4).
Disclaimer: I represent Ford in different litigation.
Bringing to an apparent close a legal saga often chronicled in this space (see Nov. 26 and links from there, Nov. 27), the Ford Motor Co. has agreed to pay $23.7 million plus $10.8 million in interest for a total of $34.5 million to settle the Romo family's lawsuit concerning a fatal rollover of a 1978 Ford Bronco. The original jury verdict of $290 million in 1999 came after a trial noteworthy both for demagogic argumentation and bizarre jury deliberations, and was slashed by an appeals court in November. (Susan Herendeen, "Ford agrees to $34.5M judgment", Modesto Bee, Feb. 4).
To judge from some of the press coverage, you'd think the Ford Explorer was the most sinister passenger vehicle in human history. And yet "Ford Motor Co. successfully has defended the popular sport utility vehicle in 10 consecutive jury trials." On the other hand, the automaker has paid millions of dollars to settle Explorer cases: perhaps 1,500 of them, according to an estimate proffered by one California plaintiff's lawyer. Ford won't give out numbers. ("Explorer verdicts go Ford's way", Detroit News, Jan. 26)(see also Jan. 8).
"U-Haul International Inc. is forbidding its stores to rent trailers to customers who plan to tow with the Ford Explorer, saying it no longer can afford to defend product liability lawsuits linked to the best-selling SUV. ... U-Haul -- North America’s largest trailer rental company with more than 17,000 outlets -- implemented the policy Dec. 22, saying the ban was not related to safety. 'U-Haul has chosen not to rent behind this tow vehicle based on our history of excessive costs in defending lawsuits involving Ford Explorer towing combinations,' the company told The Detroit News. ... U-Haul has no ban on rentals to Mercury Mountaineer owners, although the vehicle is mechanically a carbon copy of the Explorer." (Eric Mayne, "U-Haul rejects Explorers", Detroit News, Jan. 8)(& letter to the editor, Mar. 18).
More developments in previously covered controversies:
* Where credit is due dept.: lawyers for Patrick Hayashi, whose squabble over ownership of a souvenir Barry Bonds home run baseball grew so costly as to eat up the ball's auction value, agreed to roll back their fees so that their client would emerge from the case with something of value other than the experience (Gwen Knapp, "Finally, in Bonds ball case, someone shows some class", San Francisco Chronicle, Dec. 30)(see Jul. 1).
* National talk show host Joe Scarborough, criticized here among other places for naming a company as "Rat of the Week" without disclosing that his partners at Pensacola's Levin Papantonio were actively suing it (see Sept. 15), says he's now stopped receiving a stipend from the law firm, though name partner Fred Levin says Scarborough remains associated with the firm and may even do a commercial for it (Amber Bollman, "Scarborough: No pay from law firm", Pensacola News Journal, Dec. 30; Howard Kurtz, "Bad News Bearers: Up To No Good?" Washington Post, Dec. 29)(low in piece) (via Lori Patel, Law.com).
* After nearly three weeks of testimony and an hour and a half of deliberations, a jury has rejected a lawsuit against Ford Motor Company over the death of New Jersey state trooper Scott Gonzalez (see Oct. 27, 1999). Gonzalez was killed in a shootout with a mental patient, and lawyers for his widow had alleged that he might have survived had his Ford Crown Victoria been designed so that a crumpled fender did not block his door from opening; they also sued the killer's parents (who were released from the suit shortly before the recent trial) and Hechler & Koch, the maker of her husband's police gun, because it briefly jammed after he'd fired seven shots from it; the latter suit resulted in a settlement providing less than $50,000 to Maureen Gonzalez. (Jenna Portnoy, "Jury rules Ford not liable in trooper's shooting death", Easton, Pa. Express-Times, Dec. 19)
The Alabama Supreme Court reversed an $82 million verdict against General Motors--not because it was ludicrous to hold GM responsible (much less responsible for $60 million in punitive damages) because a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph, but because the trial judge had refused to strike five jurors who were related to an attorney at the law firm for the plaintiff. The case will be retried. (Philip Rawls, AP, Dec. 12; "Brain injury in crash costs General Motors", OnWheels, May 20, 2002) (via Bashman).
Reviewing Adam Penenberg's newly published book Tragic Indifference: One Man's Battle with the Auto Industry Over the Dangers of SUVs, which recounts the Firestone tire/Ford Explorer imbroglio mostly from the standpoint of plaintiff's attorney Tab Turner, FindLaw reviewer Matt Herrington (Oct. 10) writes that the book "provides an interesting view of the interrelationships between the plaintiffs' bar, the expert and consumer advocacy industries, and corporate America" but is "painfully, almost comically, one sided": "anyone who helps the plaintiffs is a hero" while "anyone who raises any obstacle to their quest for justice must be evil". The result? "Even bad behavior, if it helps the plaintiffs, is depicted as heroism. For example, Penenberg describes how two experts who make their livings as critics of the auto industry obtained a purportedly 'suppressed' National Highway Traffic Safety Administration study of uncertain provenance; they believe the study contradicted NHTSA's public statements. But they got the study 'through the mail' -- it was not an official document, it had no provenance -- it was not, and here is the key point, admissible evidence. This technicality is resolved through trickery that is at least unethical, and likely illegal too. Penenberg reports that one of the experts 'stashed the analysis in one of the [NHTSA] dockets concerning rollovers and then went off for lunch. When he returned, [he] informed a clerk he needed a certified copy of the report, and described where to find it. A couple hours later [he] got it back complete with NHTSA's official seal and tied with a blue ribbon.'
"That's not a cute story. Not even close. It's a story of an ethical violation, a lie to the government, and a confidentiality breach."
The LA Times article on the California court of appeals decision in Romo v. Ford Motor Co. (see Nov. 26 and links therein) shows how far the media has tilted in coverage of tort reform: there are lots of unchallenged complaints from the plaintiffs' attorneys and their interest groups that a $29 million total award won't be enough to deter wrongful behavior and will allow companies "to avoid liability and responsibility." This is mathematically nonsensical: if 1 in 10,000 Ford Broncos were subject to such an award over the course of their lifetime, it would wipe out Ford's profits and then some. And if fewer autos than that cause damage, then perhaps Ford's behavior isn't so "reprehensible", notwithstanding the characterization of the appeals court? (Indeed, three of the twelve jurors refused to join the Romo verdict.) No one is quoted questioning whether $29 million is too much to award against an auto company for a 1978 Ford Bronco that had 200,000 miles on it at the time of the accident and which exceeded federal safety standards put in place years after the 1993 accident. (Lisa Girion and Myron Levin, "Appellate Court Cuts Huge Crash Case Award", LA Times, Nov. 26). The good news is that the California Court of Appeal recognized that the size of the corporation is not grounds on which to award punitive damages: though the court does not say so, to base punitive damages on such a metric effectively punishes corporations for being big than for a particular course of conduct. (Washington Legal Foundation amicus brief before U.S. Supreme Court).
Relatively uncommented on: the same day the same California Court of Appeal reversed a $10 million punitive damages award against Ford in Johnson v. Ford, where a couple bought a used car and had to replace the transmission twice. The couple will still walk away with over $170,000 from Ford and the dealer for their trouble. Anyone think that a $170,000 hit on the sale of a used Taurus isn't enough to deter selling used cars with problems? Update Feb. 15: case settles.
Disclosure: I represent Ford Motor Co. in other litigation.
"A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people." The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, "Court reduces $290 million verdict against Ford to $23.7 million", AP/San Francisco Chronicle, Nov. 25). "As we read State Farm … the legitimate state goal that punitive damages may seek to achieve is the 'condemnation of such conduct' as has resulted in 'outrage and humiliation' to the plaintiffs before the court," Justice Steven Vartabedian wrote for [a unanimous panel of California's 5th District Court of Appeal]. "It is not a permissible goal to punish a defendant for everything it may have done wrong." (Mike McKee, "Punitive Damages Take Big Hit", The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff's arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.
Ten years after litigation consultants helped NBC News stage fake "tests" which supposedly proved a GM truck vulnerable to fuel-tank puncture (see "It Didn't Start With Dateline NBC", our 1993 effort), you have to wonder whether much has changed. "Ford Motor Co. says Dallas rigged a crash test that purported to show that the Crown Victoria is vulnerable to deadly fuel tank explosions even when equipped with safety gear. Ford said its inspection of the car used in the test showed that items in the trunk had been welded together, including a crowbar that was aimed at the back wall of the fuel tank." The test was paid for by personal injury lawyers representing the city of Dallas in a lawsuit over the death last year of police officer Patrick Metzler, who died when his Crown Victoria was rear-ended by a drunk driver at high speed. ("Dallas rigged Crown Victoria crash test, automaker alleges", AP/Fort Worth Star-Telegram, Sept. 18.) In the 75-mph test, the vehicle's trunk was filled with "items that the city said were commonly found in a police officer's trunk", which turned out to include a crowbar welded to a vehicle jack -- just the sort of contraption an officer might lug around to traffic stops, no? Ford, which discovered such details only later on when it was allowed to inspect the test vehicle during litigation, "criticized the city for not disclosing the artificial conditions when reporting its testing results." Reinforcing the sense of deja vu, Center for Auto Safety head and trial lawyer chum Clarence Ditlow publicly defended the use of the peculiar trunk contents as legitimate, the same way he defended NBC's use of hidden rockets back then. ("Ford Questions Dallas Crash Tests", AP/Primedia, Sept. 18; "City calls Crown Victoria tests 'valid'", Dallas Business Journal, Sept. 18). "Mark Arndt, the president of the company that oversaw the testing, is himself an expert witness for the City of Dallas in its lawsuit against Ford. Arndt makes his living as a hired gun testifying against carmakers." (Mike Scott, "City's crash test spawns controversy", reprinted at Houston Citizens Against Lawsuit Abuse site). For trial lawyers' side on the Crown Victoria controversy, see Ditlow's Center for Auto Safety; Dallas City Hall; and Crown Victoria Safety Alert. For Ford's side, see CVPI.com.
Eagle Pass, Texas, in Maverick County along the Rio Grande, isn't likely to shake its reputation for plaintiff-friendly jurisprudence any time soon, as a San Antonio Express-News profile makes clear. "L. Wayne Scott, a professor at St. Mary's University Law School.... who has mediated civil cases in Eagle Pass, estimates defendants there are roughly 10 times more likely to lose than in conservative Dallas and two or three times more likely to fall than in San Antonio. ... Indeed, the prospect of facing a jury in Eagle Pass -- where Mayor Joaquin L. Rodriguez also is one of the city's top plaintiff's attorneys -- frequently makes companies more willing to settle and in higher amounts than they would agree to in other venues." Although a 1995 round of state tort reforms has somewhat curbed the rampant forum-shopping by which plaintiff's lawyers used to bring suits from around the state to Eagle Pass, there is still a steady diet of cases to be had against major national defendants, including suits against automakers over road crashes and a case against Connecticut-based shotgun-maker O.F. Mossberg & Sons Inc. over a hunting accident that took place in another Texas county. Local plaintiff's attorney Earl Herring says that a case worth $10,000 in Eagle Pass would be "worth $500 in Uvalde." (Greg Jefferson, "Eagle Pass remains known as plaintiff's attorney paradise", Nov. 2).
"Boise attorney Gale Merrick, who represented the automaker, said the Supreme Court ruling reinforced the company´s contention that there was no evidence that mice got into the van because of some manufacturing defect. 'They could have left the windows down or a door open,' Merrick said." An Idaho jury had held Honda liable for $10,250 because of the smell of mouse droppings in the vehicle. (Idaho Statesman, Oct. 24; Powers v. American Honda Motor Co.; "Of mice and men: Honda damages are overturned", AP, Oct. 23; see also Julie Pence, "Mouse tales ... Little critters can cause problems in your car", Twin Falls Times-News Online, Oct. 24 for a story about the problems of mice in cars in the area).
Updating our story of Mar. 27-28, 2002: the Colorado Supreme Court by a 4-3 margin has reversed lower court decisions that ordered State Farm to pay auto insurance benefits to a woman who was kidnapped and raped in her car. (Sean Kelly, Denver Post, Oct. 15). Plus: Curmudgeonly Clerk has more (Oct. 18).
Updating a case covered on Mar. 28, 2000: a Texas court of appeals earlier this year reversed an award of $43 million (voted as $65 million by the jury, then reduced by the trial judge) against Honda to the survivors of a woman who accidentally rolled her car off a boat ramp into Galveston Bay and at autopsy was found to have .17 alcohol in her bloodstream. Her survivors argued that she was trapped in the sinking car by her seat belt, but the appeals court said they had not shown that any alternative belt design would have been any safer overall. Incidentally, this particular Galveston boozy pier roll-off award is guaranteed to be a different case entirely from the Galveston boozy pier roll-off award discussed in this space Aug. 28, in which the city of Galveston and its pier lessee were supposedly the ones to blame, the verdict came in at $10.5 million, and an appeals court again threw it out (Mary Alice Robbins, "Texas Court Reverses $43M Judgment Against Automaker", Texas Lawyer, Feb. 19).
In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state's highest court in which he had argued that his girlfriend's grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, "Open and Obvious Danger Doctrine Reaffirmed", Winter 2001; for details of case see also Cathleen F. Crowley, "Court decision could impact pool owners", Lawrence Eagle Tribune, Jan. 4, 2000).
Legendary record-setting jockey Bill Shoemaker died today at the age of 72. The New York Times obituary (Joseph Durso, "Bill Shoemaker, Jockey With Winning Touch, Dies at 72", Oct. 12) only lightly touches on one of the less admirable incidents of Shoemaker's life. Shoemaker was driving after a couple of beers--enough to make the 98-pounder legally drunk according to a blood test. When he reached for his car phone, he lost control of his vehicle, and crashed down a steep embankment, paralyzing him beneath the armpits. Shoemaker sued the auto manufacturer, the state of California (for failing to install guardrails on a straight road), and the seven doctors who saved his life--a decision he said he regretted in a 1999 interview: "Shoemaker says he always has felt solely responsible for the accident. 'I've never asked, "Why me?" because it was my own fault. I did it. I can't blame anybody else. I was at that point at the beginning.' He now expresses regret over the suits, saying he only followed his attorney's advice." (Nancy Kruh, "Legendary Shoemaker has made peace with his new ride", Dallas Morning News, June 25, 1999).
Steve Blow of the Dallas Morning News, like Alex Tabarrok before him (see Sept. 19), is far from pleased with the results of the class action on behalf of otherwise uninjured owners of recalled Firestone tires; he follows up with a second column which gives details of another class action, this time against Nissan over a printed error on car leases ("Firestone, lawsuits and cost of inflation", Oct. 4; "Isn't it time to raise the bar for lawyers?", Oct. 7). And across town at the Fort Worth Star-Telegram, J.R. Labbe discusses the recent case (see Oct. 4) in which Philip Morris agreed to pay $2 million to a mother who by her own account left a child and a lit cigarette unattended in a car contrary to Texas law. "The public may never know why the company chose to settle this case, but you can be sure it will open the door for additional claimants looking to blame someone for their own irresponsible actions." ("Somebody has to pay", Oct. 5). (Corrected May 1, 2004 to remove erroneous implication that tire owners were receiving financial compensation in the class action).
As if to respond to our post on joint and several liability on Friday, a Nebraska jury found for a woman paralyzed in an accident when the driver drove off the road and rolled over their Chevy Blazer. Both GM and the driver (who was later charged with DUI) are held liable, but only one is actually going to pay the bulk of the award, if it is upheld. GM will effectively be paying insurance for the consequences of drunk driving--and of getting into a car with a drunk driver.
Plaintiff claimed that a $20 roof-strengthening would have prevented her injuries. GM denied this causation theory. (Butch Mabin, "Jury awards woman $19.5 million", Lincoln Journal Star, Sep. 27) (via Bashman). But even if one accepts the plaintiff's argument that the lack of an additional $20 is a sine qua non of her injuries, her lawsuit presents troubling public policy implications. GM isn't faced with a single yes/no $20 safety decision when it designs a car--it faces hundreds, if not thousands, of them. And not all of them are binary. Twenty dollars of roof strengthening may have prevented these injuries, but once GM takes that step, there will still be other accidents where yet another twenty, or forty, or eighty dollars of metal in the roof would have prevented injuries. If too many $20 additions are made, some people will not buy the hypothetical Blazer and will instead buy a cheaper (and/or older) and less safe car. Adding $20 of roof-strengthening may decrease the likelihood that a particular accident will result in serious injury, but, by elevating the center of gravity, may increase the likelihood that the SUV is in a rollover accident in the first place and, by increasing the weight, increases the risk of an accident due to inadequate braking power. The SUV, as it is, may perform relatively poorly in rollovers as plaintiffs argue, but it performs much better (some would argue too well) in collisions with other vehicles. And we have not even begun to mention the societal cost that comes from reducing the gas mileage of the SUV by increasing its weight. (The one thing I have in common with Arianna Huffington is that I drive a Prius.)
A jury of laypeople seems to be poorly situated to make these holistic design decisions -- especially when the rules of a product liability case often mean that a jury is considering a particular design question in isolation. Which is why plaintiffs' attorneys are happy to characterize the scales as one of a quadriplegic against a heartless giant corporation that supposedly valued its $20 more than a mother's ability to walk. It would take an exceptionally wise jury to accurately balance the visible and tangible costs of an after-the-fact gravely injured member of their community against the before-the-fact intangible benefits to society of the engineering design decision of different accidents prevented and of affordable new cars. The elites of the national media and our political and regulatory leaders have trouble articulating the subtleties of these issues. Why do we ask a jury of laypeople to grapple with them, often deliberately deprived by legal rules of a full complement of the tools they need to make a correct decision, when a decision on behalf of an automaker would require them to take the painful psychological step of looking in the eye a quadriplegic who has had her life irreversibly altered, and telling her she will recover nothing?
Disclaimer: I represented GM from 1995 to 1997.
At the new multi-author blog Marginal Revolution, Alex Tabarrok writes that he's angry: "The lawyers will get $19 million, the plaintiffs have no damages and I have been involved in an abuse of justice. I received notice yesterday that I was a plaintiff in a class action lawsuit against Bridgestone/Firestone that is about to be settled. I was never injured by Firestone but that's ok because injured people have their own lawsuit the one I am involved in is for people who were not injured. The lawsuit reads 'Plaintiff Does Not Seek To Represent And This Litigation Does Not Involve Any Person Who Alleges That He or She Suffered Any Personal Injury or Property Damage Because Of A Failure Of One Of The Tires' (capitalization in original.) Bear in mind that Firestone has already replaced all four of my tires with a competitor's brand for free and similarly for many of the other plaintiffs." (Sept. 16) Co-blogger Tyler Cowen at the same site isn't any happier to discover that he is a member of the class in a suit against Western Union over its wire-funds-abroad service charging that, according to the legalese, "...the Defendants [made] misrepresentations about or otherwise failing to disclose to customers the fact that they received a more favorable exchange rate for converting U.S. dollars to foreign currency and foreign currency to U.S. dollars than they provided to their customers." "Imagine that" -- writes Cowen -- "a middleman buying and selling at different prices!" (Sept. 17). (More: see KrazyKiwi, Oct. 8).
Meanwhile, a Wisconsin man has filed an intended class action lawsuit against jam maker J.M. Smucker after the Washington-based anti-business group Center for Science in the Public Interest published a report claiming that Smucker's "Simply 100 Percent Fruit" products were falsely labeled because only a minority of the actual contents of a jar of strawberry or blueberry "Spreadable Fruit" consisted of those berries, the remainder consisting (as Smucker's labeling makes clear) of syrups, concentrates and extracts derived from other fruits such as apple, grape, lemon and pineapple. ("Smucker's Spreads Not All Fruit, Lawsuit Says", AP/FoxNews, Sept. 5 -- if you're looking for a deceptive claim, how about the one conveyed by that headline?). The food-industry-defense Center for Consumer Freedom levels an interesting accusation against CSPI, namely that bounty-hunting lawyers suing under California's Proposition 65 law seemed to have mysterious psychic powers to divine in advance exactly what was going to be in a CSPI report on supposed killer french fries -- either that, or CSPI shared the information with them before it went public with its allegations. See "We, the jury, find the defendant 'starchy'", CCF, Jul. 17 (third from last paragraph); "CSPI: 100 Percent Litigious", CCF, Sept. 8; "Latest Acrylamide Panic Based on Fudged Numbers" (press release), CCF, Jul. 10. For more on the French fry suit, see Dec. 27-29, 2002.
The AAA auto club has reached a settlement on confidential terms of the lawsuit by the survivors of Melissa Gosule, attempting to hold it liable for her murder by a stranger who gave her a ride after a AAA tow truck driver took too long to get her on her way (see Sept. 8). (John Ellement, "Family settles suit against AAA, driver", Boston Globe, Sept. 11).
In the latest lawsuit seeking to find a large enterprise liable for the murder of a stranded female motorist, the survivors of Melissa Gosule are beginning a trial against the AAA auto club over the dilatory way in which it set about rescuing her after her car broke down on Cape Cod in 1999. Ms. Gosule instead accepted a ride from a stranger who turned out to have a long criminal record, and who murdered her. "Every year, the American Automobile Association, with a dues-paying membership of more than 46 million in the United States and Canada, gets about 30 million calls from motorists who need help with dead batteries, flat tires and other roadside problems." (Denise Lavoie, "Auto club goes on trial over slaying of motorist", AP/San Francisco Chronicle, Sept. 8). Last month (see Aug. 9) the Nebraska Supreme Court ruled that the family of Amy Stahlecker could not sue the Ford and Firestone companies after a tire blowout left her stranded at the side of the road, where she was picked up and murdered by a stranger. Update Sept. 14: AAA case settles.
Updating our story of Jun. 4-5: "Ford Motor Co. and Bridgestone/Firestone Inc. are not liable for the death of a 19-year-old woman killed by a man who gave her a lift after she got a flat tire, the Nebraska Supreme Court ruled Friday." (Kevin O'Hanlon, AP/Washington Post, Aug. 8).
From Lowell, Mass. comes word that a jury has rejected a suit asking that Joseph Albert be awarded millions of dollars for drinking himself into a coma. Attorney Peter J. Nicosia of Tyngsboro asked $11 million in a "dramshop liability" suit against Gus & Paul's Tavern for serving an undetermined number of beers over two hours to Albert, who was found by police later that night with a blood-alcohol level at a startling .48. Complicating Nicosia's case was a deposition from a boon companion of Albert's saying that the plaintiff had been drinking from a bottle of Jack Daniel's whiskey after leaving the tavern. "I played that off to be basically an untrue story and basically a red herring," said attorney Nicosia of the Jack Daniels. "The bottle was never found; no one ever saw him drink it." The jury evidently wasn't persuaded. (Jeanne Greeley, "Tragic Dram-Shop Case Just Had Too Many Holes", Massachusetts Lawyers Weekly, Jun. 30). In another of last year's big defense wins in the Bay State, a jury decided it wasn't General Motors' fault that a mother had left her Chevy Astro van running with the keys in the ignition and occupied by her infant with her 4-year-old sister; the pre-schooler climbed into the front and shifted the transmission, causing the van to roll into a pond. (Kelly Winget, "Tot rolls van into pond", Lawrence Eagle-Tribune, Jul. 18, 2000).
General Motors has settled on undisclosed terms the suit in which a Los Angeles jury awarded $4.9 billion, later knocked down to a mere $1.2 billion, to six people injured when their Chevy Malibu was rear-ended by a drunk driver; the plaintiff's lawyers had charged the Malibu with defective design, although federal statistics show it to have a safety record well above average (see Dec. 16, 1999 and links from there). And contrary to reports (including ours) that trial lawyers were managing to kill off car-lease reform in Rhode Island, major automakers said they would remain in the Ocean State leasing market after Gov. Don Carcieri on Jul. 7 signed legislation which for one year caps at $300,000 the liability of car lessors for accidents that their lessees get into (see Jul. 14). The change leaves New York as the only state with unlimited vicarious liability for lessors. ("Business: National Briefs", Detroit News, Jul. 25).
Following heavy lobbying by trial lawyers, the lower houses of the New York and Rhode Island legislatures have refused to act to limit auto leasing companies' currently unlimited "vicarious liability" for their lessees' crashes, thus apparently ensuring that Ford, Honda and other major automakers will continue fleeing from the two states. We covered the controversy in a Jun. 9 op-ed as well as in earlier posts. New coverage: Ed Garsten, "Firms halt N.Y. vehicle leases", Detroit News, Jul. 6; Matt Smith, "Auto leasing companies fleeing state", Ottaway/Middletown Times-Herald Record, Jul. 2; Jeremy Boyer, "Dealers steer way past loss of leasing", Albany Times-Union, Jul. 3; "Bill Limiting Accident Liability Appears Doomed", TurnTo10.com (WJAR-TV Providence), Jun. 30 (R.I.). Update Aug. 3: Reform not doomed in R.I. after all, major automakers agree to stay after governor signs one-year fix limiting liability to $300K, leaving N.Y. as only state with unlimited liability.
The Texas case we covered on May 23 and Jun. 26, 2000 and Mar. 17 of this year has now eventuated in a suit by DaimlerChrysler against the Kugle Law Firm. A trial court dismissed the Kugle firm's $2 billion suit against Chrysler and imposed sanctions of $865,000 against three of the firm's lawyers after finding that the steering decoupler of the sued-over Dodge Neon had been altered to simulate mechanical failure and that Mexican policemen had been asked to change their accounts of the accident giving rise to the suit. An appeals court called the firm's conduct 'an egregious example of the worst kind of abuse of the judicial system.'" "The senior lawyer at the firm, Robert A. Kugle, has been suspended from the Texas bar and has moved to Mexico. He could not be located for comment." (Adam Liptak, "Law Firm Is Sued Over Conduct in Liability Case", New York Times, Jul. 10; AP/Miami Herald; San Antonio Express-News). More: David Giacalone at EthicalEsq.? weighs in.
Archived entries before July 2003 can also be found here:
Leasing liability: "'Silver's wreck'", Jun. 9, 2003; "Auto-lease liability: deeper into crisis", May 21; "'Automakers may stop leasing vehicles in N.Y.'", Mar. 12-14, 2003; "R.I.: No more cheap car leases?", Aug. 26, 2002.
Romo v. Ford Motor Co.: "Update", Jun. 2, 2003; "'California Court Upholds $290 Million Injury Jury Award Against Ford'", Oct. 24, 2002; "You read it here first", Aug. 27, 2002; "Tainted by '60 Minutes'", Sept. 17-19, 1999; "The dream verdict" (California Bronco award), Aug. 24, 1999.
"Steering the evidence" (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& updates Jun. 26, 2000, Mar. 17, 2003).
"'The Lawyers Are Lurking Over S.U.V.'s'", Jan. 9, 2003.
Tires: "Blaming murder on flat tire", Jun. 4-5, 2003; "Hey, no fair talking about the pot" (rollover), Apr. 12-14, 2002; "'Plaintiff's lawyers going on defense'" (Reaud represents Bridgestone Firestone), Oct. 9, 2001; "'Lawyers put profit before lives'", June 28; "Trial lawyers knew of tire failures, didn't inform safety regulators", June 25 (& letter to the editor, July 6); "Big numbers" (Continental General Tire, Cooper Tire), April 16, 2001; "Product liability criminalized?", Oct. 20-22, 2000; "Hasty tire judgments", Oct. 16-17; "Who caught the tire problem?", Sept. 15-17; "'Feeding frenzy over Firestone'", Sept. 11, 2000.
"Ford didn't push pedal extenders, suit says", Feb. 27-28, 2002 (& letter to the editor, Apr. 11).
"'Drunken Driver's Widow Wins Court's OK To Sue Carmaker'" (VW), Feb. 25-26, 2002.
"Chrysler dodges a $250 million dart", Dec. 7-9, 2001; "Miami jury to Ford: pay $15 million after beltless crash", Sept. 24, 2001.
"Disclaimer rage?" (GPS software), Oct. 15, 2001.
"When trial lawyers help redesign cars" (Thornburgh on GM trucks), Aug. 6, 2001.
Airbags: "'Airbag chemical on trial'", Aug. 14, 2000; "Deflated", May 16, 2000; and see Oct. 20-22, 2000 (Henry Payne cartoon).
"Drive 60K miles, collect $273K", Jan. 9, 2001; "Tales from the tow zone" (verdict against Chrysler), Oct. 31, 2000.
"Highway responsibility" (GM sued in Derrick Thomas speeding-on-ice crash), Nov. 28, 2000.
"Product liability criminalized?", Oct. 20-22, 2000.
"Target Detroit" (mass litigation; S.U.V.'s; class action firm countersues DaimlerChrysler and exec personally), Jul. 19-20, 2000; "Turning the tables" (DaimlerChrysler sues class action lawyers), Nov. 12, 1999.
"Nader on the Corvair", July 13, 2000; "Nader, controversial at last", June 13, 2000; "Deflated", May 16, 2000.
"Sudden deceleration" (NHTSA rejects petition for sudden-acceleration probe), Jun. 6, 2000.
"'Saints, sinners and the Isuzu Trooper'", April 14-16, 2000; "Verdict on Consumer Reports: false, but not damaging" (Isuzu v. Consumers Union), Apr. 10, 2000.
"$65 million Texas verdict: driver at twice the legal blood limit" (drunk driver's estate sues Honda over seat belt), Mar. 28, 2000.
"'Motorists speed more, but fewer die'", Feb. 19-21, 2000.
"GM verdict roundup" (Anderson v. General Motors fallout continues), Dec. 16, 1999; "L.A. judge cuts award against GM to $1.2 billion", Aug. 27, 1999; "In L.A., redesigning the Chevy" ($5 billion Malibu gas tank verdict), Jul. 10, 1999 (& see update Aug. 3, 2003, case settled on undisclosed terms).
"Toshiba and Ford, in the same boat", Dec. 2, 1999.
"'Wretched excesses of liability lawsuits'" (David Boldt, Philadelphia Inquirer), Nov. 29, 1999.
"Responsibility, RIP" (columnist Mona Charen), Nov. 2, 1999.
"Zone of blame" (policeman shot in his cruiser, automaker sued), Oct. 27, 1999.
"Rhode Island A.G.: let's do latex gloves next" (speed governors on cars), Oct. 26, 1999.
"The art of blame" (Ford sued after child left in parked van in sun dies of overheating), Oct. 20, 1999.
"Demolition derby for consumer budgets" (class action against State Farm over generic crash parts), Oct. 8, 1999.
"Yes, it is personal" (automotive engineers take design-defect suits as personal accusations), Oct. 7, 1999.
"Too many games at GM?" (Atlanta ruling on Ivey memo controversy), September 10, 1999.
"Do as we say (II): gun-suit hypocrisy in Detroit" (gun- and automakers both sued after criminal misuse of their products), Aug. 30, 1999.
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[additional essay on auto design liability here]
Archived entries before July 2003 can be found here, where the following brief essay originally appeared:
The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of "sudden acceleration" in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.
To be sure, the Audi case presents an inconvenient complication, namely that the cars weren't inexplicably accelerating -- a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over "sidesaddle" gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).
Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market -- even Volvo, even Lexus, even BMW -- has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents -- and when crash victims' injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design -- such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance -- in favor of the theory of a sinister conspiracy in executive suites to kill customers.
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The Audi case is written up at length in Chapter 4 of Peter Huber's magisterial Galileo's Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article "Junk Science in the Courtroom". A short but vivid account appears in P. J. O'Rourke's humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious "60 Minutes" show attacking the Audi comes in for a drubbing in our editor's 1993 National Review expose of dubious crash journalism, "It Didn't Start With Dateline NBC", adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill's Content by Greg Farrell ("Lynched: Lurching Into Reverse"), which in turn provoked a fairly hysterical response from CBS executives.
In 1993, "Dateline NBC" was caught in one of the great television scandals of all time: filming a supposed "crash test" of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious "crash test" footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash "experts" who happened simultaneously to be working for the plaintiff's lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.
Overlawyered.com's editor weighed into the controversy with pieces on the truck's safety record ("'The Most Dangerous Vehicle on the Road'", Wall Street Journal, February 9, 1993), on the media's reliance on plaintiff's experts ("Exposing the 'Experts' Behind the Sexy Exposes", Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks ("It Didn't Start With Dateline NBC", National Review, June 21, 1993).
On the Ford Pinto case, the best resource is unfortunately not online, but is well worth a trip to the local law library: the late Gary Schwartz's 1991 Rutgers Law Review article "The Myth of the Ford Pinto Case" (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): "everyone's received ideas about the fabled 'smoking gun' memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto's safety record appears to have been very typical of its time and class."
In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu's real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff's lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.
In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR's "testing" had put the vehicle through unnatural steering maneuvers which, contrary to the magazine's claims, were not the same as those to which competitors' vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn't see their way to overcoming the high threshold to proving "malice". The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: "Isuzu ... should never have allowed these vehicles on the road." However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.