If we’re to believe Mr. Brough, many of the other problems I identify with the result are justifiable because of supposed mistakes by the defense attorney. Perhaps Ford’s attorneys did fail to raise common-sense defenses and also failed to notify the press office that its grounds for appeal do not exist, as Mr. Brough wishes us to believe. But if the result is to be attributed to Brough outlawyering Ford’s attorneys, then it speaks to another, different, but just as fundamentally important problem with the justice system today: the concept that a trial is a type of reality game-show, and that millions of dollars in the economy can be shifted based on such games. It means that businesses survive or fail on the skills of their attorneys rather than on the skills of their entrepreneurs and engineers—and that our best and brightest students are drawn to the rent-seeking occupations and the rewards they provide rather than to productive pursuits.

I made no political slurs on the judge in question, but it’s interesting that Mr. Brough seems to feel that the very fact of disclosure would constitute such a slur. There’s a term in game theory for the inference one can draw by the refusal to disclose. Of course, we know what other plaintiffs’ attorneys tell defendants about trying cases in Nueces County.

With respect to your comments in response to my original posting, Ford contended that even under the “old law” that made seatbelt use inadmissible in most cases, the belt use issue was still admissible to negate causation (i.e., to prove that the only reason she got hurt was lack of belt use). So, if Ford is correct, yes, Ford should have pled and contended this and it may have been more successful in using the belt evidence.

In response to your response to (5) of the original posting, I don’t know what to say. You claim you can’t trust me because of some unspecified “inaccuracies” by me. You were not at trial. You have not bothered to read the trial transcript. And you won’t even accept the fact that Ford told the jury in closing argument to put 0% responsibility on the driver and 100% responsibility on Firestone. That is what us common folks call inherent bias being exposed.

In response to your response to (6) and (7) of the original posting, you were not at this three week trial, have seen none of the evidence, and yet you somehow know that Ford was not responsible for the accident and that the injuries were insignificant. How can that be? Would it surprise you to know that Ford hired a $1,500 per hour damages expert who testified that Ms. Munoz needed at least $1.4 million in future medical care from her injuries sustained in the accident? Does that sound like someone who is mildly injured?

Your claim that I am disingenuous in response to (11) in stating that the case was something other than a failure to warn case and somehow claim to know that the “main allegation was a ‘failure to warn.’” You are just making this up as you go along with no basis in fact whatsoever. If you read the jury charge, question 1 was design defect in the vehicle, question 2 was marketing defect in the vehicle (warnings); question 3 was design defect in the tire; question 4 was manufacturing defect in the tire; question 5 was marketing defect in the tire (warnings). So, in truth, only one of 5 liability questions asked the jury to hold Ford/Mazda responsible for failure to warn (question 2). In fact, the majority of the questions sought to hold Firestone accountable for the tire defects (and these questions were strongly urged by Ford in its defense).

Response to Question 4: With respect to the relevance of Ford’s design of the tire in a case in which tire aging is an issue, you have several questions and have made several comments that seem to suggest a fundamental misunderstanding of the law. Under the law (and good common sense as well), it is axiomatic that there can and often is more than one cause of an accident or product failure. That’s why juries are required to apportion fault/responsibility between products and people. Thus, the relevance of Ford’s design of the tire is that the design of the recalled tire contributed to the tire failure in some respects, and even Ford agreed with that by blaming Firestone for the bad design. The truth, however, was that Ford and Firestone had blame for the design. The ultimate relevance, then, is that this evidence assists the jury in assessing proportionate responsibility for the accident between all parties.

Response to Question 5: Again, there can be and is often more than one cause of an event. For example, a tire store’s failure to replace the recalled tire may be a superceding cause if the only reason for the accident was a tire failure. But in a case such as this, it just is not true for a number of reasons: (1) Ford and Mazda failed to argue it (maybe they should hire you); (2) many vehicles have tire failures, but not all vehicles have a suspension design defect that cause the vehicle to fly wildly out of control in such events; and (3) the recall was for design defects, and we proved that the tire failed in part due to age degradation. The Explorer has some rather unique and harsh handling responses to tire tread separation events that (depending on the specifics of the event) may make the vehicle literally uncontrollable. To say that someone should be held 100% responsible for failing to pull the spare tire off during the recall would be like blaming the driver for getting up out of bed that day (if the driver just would have stayed at home that day, the accident would never have happened). One simply cannot divorce “causation” from fault or responsibility—they must coincide and the law allows and requires the jury to consider everyone’s percentage of blame.

Response to Question 6: Other belted and unbelted occupants received a variety of non-life-threatening injuries. Interestingly, in a case that my firm reviewed this week, there were six unrestrained occupants of a vehicle in a tire failure rollover accident and only one restrained occupant. The six who were ejected were fine. The belted driver died. Injury causation in rollover accidents involved complex science and biomechanics. You really can’t assume belt use will save the day, although I strongly believe we should all wear belts at all times.

Response to Question 7: Again, Ford contended that even under the “old law” that made seatbelt use inadmissible in most cases, the belt use issue was still admissible to negate causation (i.e., to prove that the only reason she got hurt was lack of belt use). The case law is somewhat divided and unclear of this issue. Some states that have a seatbelt law like Texas’ former law allow belt use to be admitted on the limited issue of causation. So, if Ford is correct, yes, Ford should have pled and contended this and it may have been more successful in using the belt evidence at trial.

Response to Question 8: Plaintiffs asked the jury to put 80-90% on Ford and Mazda. We never threatened Firestone with anything. This was the first trial where relative fault of Ford and Firestone in a recalled tire/Explorer case was assessed, so threats get you nowhere. No one knows/knew how the evidence will come in and how or even whether each defendant’s product will be found to be both defective and a cause of the accident. It is not our practice to guess at these matters. In any event, Ford and Firestone are significantly savvy when it comes to lawsuits and negotiation strategies. One of my favorite quotes comes from a Firestone lawyer responding to threats by a plaintiff’s lawyer—“Bring it on.” Threats do little but make you an ass or a target, so I try to avoid them.

Response to Question 9: Yes, there were Texas defendants in the case, including the driver and his father, who Ford and Mazda sued. They were never dismissed, the case was never removed, and there was no remand.

Response to Question 10: No.

Response to Question 11: No.

Response to Question 12: I won’t say what the demand was exactly because doing so can violate confidentiality in a number of respects. I will, however, tell you that the demand was made before my firm was ever hired to try the case and that it was a request that Ford pay substantially the same as what was paid by Firestone in settlement.

Response to Questions 13-14: Both sides make objections to evidence throughout trial. Ford and I both won and lost literally hundreds of evidence objections throughout the trial. Again, if you want a blow by blow, you need to read the three weeks of trial transcripts.

Response to the Car and Driver Question: Tire failure testing has evolved over the years. It has been difficult to come up with an accelerated artificial tire failure test that accurately represents real world failures. The critical thing to know is that testing has shown that tire blowout (or air loss) failures are very different from tread belt separation failures. Tread seps have been demonstrated to be very deadly, as is confirmed by the over 200 dead and thousands injured in Ford Explorer tire tread separation failure accidents. Whether testing reveals a significant safety hazard depends in large part on the testing and the protocols used. In testing, professional drivers are used who are expecting the failure and who are trained in how to respond. The nature of the failure event itself, however, seems to be more critical. For example, most tread separation testing involves using a sharp knife that pre-cuts the tread almost all the way through so that the time to failure is minimized. As a consequence, the duration of the tread peel is very short (the tread comes off very quickly and usually in one piece). In these testing circumstances, there is very little vehicle-tire interaction and hence very little vehicle disturbance and no problem with safely stopping the vehicle. In a recent study conducted by the National Highway Traffic Safety Administration, over 60% of normal drivers who are not expecting a tread separation in an Explorer-type vehicle were shown to lose control in the National Advanced Driving Simulator. In our case, testing conducted by Ford showed a professional driver losing control of an Explorer during a tread separation event. In that testing, the tire failure event was longer and resulted in multiple tread pieces and fragments. The vehicle required over 150 degrees of rapid steering and counter-steering to keep the vehicle out of the median, but even the professional driver who was expecting the event crossed two lanes of traffic and went onto the emergency lane.

In response to the questions of the practicing attorney in South Texas:

– How many plaintiff attorneys wound up getting referral fees from this case (compared to those that actually tried the case)?

No one. Verdicts are not paid, so there are no fees to divide. The case was settled with Firestone before my firm was hired, so there was no sharing of the Firestone settlement with my firm. If this case settles, fees will be divided, with the client’s consent, between my firm and the original firm that handled the Firestone part of the case and assisted in trial prep and case workup in the Ford part of the case.

– How did the Plaintiff’s case deal with the issue of the spare tire being used in excess of the recommended MPH for a spare tire at the time of the accident?

The spare tire was not overused or run too fast. It had more than half of its tread life remaining and looked, was never run in excess of its speed rating, and appeared to be just fine. (These tires were rated “105S” which means that they pass a high-speed test of 110-112 mph. The Explorer will not even go that fast, and the accident occurred at about 70mph).

– A brief discussion about any settlement credits, hi/lo issues, and/or the % of comparitive fault/breakdown the jury returned with.

If Ford/Mazda ever are required to pay, then there will be a settlement credit from Firestone that will be deducted from any judgment. A “hi-low” was offered by the plaintiff during trial, but Ford/Mazda refused to even consider the idea. The jury put 75% on Ford, 10% on Mazda, and 15% on Firestone. That was probably one of the questions the jury struggled with the most. There is no magic way to add up fault, no formula. At a basic level, though, Ford has primary responsibility for the vehicle and its defects, failure to warn about the hazards of tire aging, and shared responsibility for the tire design defect and manufacturing defect, whereas Firestone merely had responsibility for tire defects. Mazda’s only real individual exposure was the tire aging issue.

(10) Ford’s owner’s manuals were not used against Ford somehow improperly. Ford lied to the jury, and we are allowed to prove it, just like Ford would be allowed to prove the jury if we lie in trial. Ford and its experts stated UNDER OATH that tire aging was not a safety issue that can cause tire failures, or even be remotely hazardous to a user. According to Ford and its experts, you can use a tire that is 25 years old without any problems. But if you look at Ford’s 2005 tire safety section on the Ford website and certain 2006 owner’s manuals, Ford warns that tire aging is in fact a safety hazard and to not use tires that are more than 6 years old. The system would certainly be broken if we were not allowed to prove that someone is lying under oath in a court of law.

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Am I the only one who sees something . . . ODD . . . in this?

El Defenzor, a Corpus Christi paper of questionable credibility, claims to have uncovered e-mails among the plaintiffs’ bar in that town hand-picking judges for the bench at election time. Unfortunately, this germ of an interesting…

It’s also not true that I did no Texas-specific research; I specifically looked into the seat-belt issue. The main point I made about the settling co-defendant–that the status quo permits a plaintiff to play co-defendants off one another in a “divide and conquer” strategy, and that the jury never learns this–remains true, even if I was incorrect about the minor Texas-specific detail regarding post-verdict offsets.

I have no intention of being the one who fulfills Godwin’s rule. But I tire of the chutzpah of the most successful lobby in America complaining about a counter-lobby.

I’ll pass along your questions, which are good ones.

While many of us will agree that the Munoz case has several issues that need to be examined in a public light, I would posit that citing a blatant push-article with numerous “unnamed sources” in an inflammatory tabloid such as El Defenzor is the very definition of being disingenuous. What’s next, a debate on foreign relations in the Middle East, using only air-dropped propaganda leaflets from the first Gulf War?
I was somewhat surprised that Mr. Braugh (whom I have never met) was kind/brave/foolish enough to take part in this discussion — hopefully both sides can keep their blows above-the-belt, as it were. Watching a pissing match between two complete strangers, one of whom has a vested financial bias in the outcome of the case (and no doubt its effect on similar trials in the future), while the other appears to have conducted no legal research on TX-specific law, that he himself has called into question, does not do much to further intelligent discourse on the Munoz case. At this rate, I would predict Godwin’s Law will be invoked within the next 3 posts.

Questions I personally would like to see addressed:
– How many plaintiff attorneys wound up getting referral fees from this case (compared to those that actually tried the case)?

– How did the Plaintiff’s case deal with the issue of the spare tire being used in excess of the recommended MPH for a spare tire at the time of the accident?

— A brief discussion about any settlement credits, hi/lo issues, and/or the % of comparitive fault/breakdown the jury returned with.

They took an Explorer, and were repeatedly able to bring it to a stop from 70mph after blowing the rear tire, without leaving the lane, and with no hands on the steering wheel.