Update: Joshua Flax/Chrysler verdict

More press coverage on the $105 million collapsing seat verdict (Nov. 24). The Fulton County Daily Report spells out the plaintiff’s case, without much attempt at balance. A press release from the plaintiffs’ lawyers claims that Chrysler experts admitted that a “stronger” seat would not have collapsed and that other Chryslers have “stronger” seats–but leaves it ambiguous whether the first “stronger” is referring to something different than the second “stronger.” The artful phrasing in the release (instead of a straightforward statement about whether Chrysler’s experts admitted Joshua Flax would not have been hurt if he had been in a Mercedes), combined with the improbability that Chrysler would go to trial with such a fact pattern, suggests that this is sophistic equivocation. (R. Robin McDonald, “Partner Wins $105 Million Verdict Against Chrysler”, Fulton County Daily Report, Dec. 1; Butler Wooten press release, Nov. 23). The Detroit News has extensive followup coverage, featuring a photo of the totaled minivan from which five people walked away, and an interview with a NHTSA spokesman who notes that “If you merely increase seatback strength, you may be trading one set of injuries for another. These seats did exactly what they were designed to do.” (Jeff Plungis, “Trial puts spotlight on safety of car seats”, Dec. 19).

In the Detroit News article, Clarence Ditlow complains that there’s an increase in collapsing front seats hitting children in the rear seats–but that’s surely a result of fewer children being seated in the front, where they were in danger of passenger-side airbag injuries. (Airbag-child fatalities have declined from 60 in 1995 to 10 in 1999.) Indeed, as the Washington Post notes, notwithstanding their headline, child deaths per mile traveled is down, as is the long-run trend of total child deaths. The Post article also suggests areas where we will see future auto litigation as new safety features transition from optional to standard. I’ve worked defending an auto company in shift-interlock litigation, for example. (Greg Schneider, “Kids, at Risk and Neglected”, Washington Post, Dec. 5).

Coincidentally, a pre-verdict November 2004 press release from the Insurance Institute for Highway Safety, otherwise critical of the auto industry, notes that a seat “has to be designed so it doesn’t rotate backward in a rear impact because this would move the head restraint away from the head. At the same time, a vehicle seat cannot be too stiff. It has to ‘give’ so an occupant will sink into it, moving the head closer to the restraint.”

Interestingly, the star witness in the Flax case is a former Chrysler middle manager, Paul Sheridan, who, though an MBA rather than an engineer, has made a career testifying that Chrysler’s air bags, seat belts, liftgate latches, doors, brake-shift interlocks, fuel systems, and now seatbacks are not safe. Chrysler fired and sued Sheridan for leaking documents, and Sheridan countersued Chrysler under whistleblower laws, but his case in Michigan state court was dismissed. (Chrysler Corp. v. Sheridan (Mich. App. 2003); Bill Vlasic, “Safety Firebrand Refuses to Relent”, Detroit News, July 13, 2003, part 2, and part 3). In an earlier federal seatback case, Sheridan’s “anecdotal, tangential, and equivocal” testimony was excluded on the grounds that he was “wholly unqualified” to testify on seatback design. Gardner v. Chrysler Corp. (10th Cir. 1996). As if to demonstrate the elaborate choreography plaintiffs use in these cases, another Flax witness, Ken Saczalski, also testified in Gardner, where a jury found for Chrysler in an accident where an unseat-belted plaintiff tried to blame her injuries on an allegedly defective seatback. Saczalski argues that seatbacks should be 17 times stronger than the minimum federal safety standard, as opposed to the 2-3 times stronger they generally are today.

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