Mraz v. Chrysler: an exchange with the plaintiffs’ attorneys

You might recall the $55 million verdict in Los Angeles, where Chrysler was held 75% liable for an accident where a defective automatic transmission in a 1992 Dodge Dakota, a failure of the truck owner to respond to multiple product recalls, and a truck driver’s failure to (1) turn off the ignition before exiting a vehicle; (2) engage a parking brake; and (3) not attempt to jump into a moving vehicle resulted in the tragic death of a young longshoreman with a wife and children. Plaintiffs’ attorneys Stephen Cassidy and Scott Nealey took issue with our post. The lengthy exchange begins in the comments section and update to our post and continues over email. Let’s just say I wasn’t persuaded, but judge for yourself.


SC: I read your updated comment. You note, “That Chrysler can’t force its customers to respond to multiple recall notices.” A key fact in the case, which the jury decided in plaintiffs’ favor, was whether DaimlerChrysler was negligent in how it handled the recall. Plaintiffs showed that the recall offered by DaimlerChrysler didn’t fix the
problem, and DaimlerChrysler’s engineers knew that in advance of the recall.

TF: Given that the truck owner had actual notice of the recall, we will have to agree to disagree on this point. My position is that the chain of causation from any negligence by Chrysler was broken by the truck owner’s breach of duty, and that the law should not as a normative matter find Chrysler liable in such an instance.

SN: As one of the lawyers who tried the case, and the lawyer who put on the only witness regarding notice to APL of the recall (Mr. Frank Marino), I would like to know exactly what evidence you believe was presented that “the truck owner had actual notice of the recall?” No such evidence was ever presented as far as I know.
Absent your being able to demonstrate that such evidence exists in the record, I would hope that you would correct your item so that your readership has an accurate picture of the case.
I look forward to your informing me of this evidence of “actual notice” and if you can identify none, then correcting the mistakes in your post on this case.

TF: Chrysler says the truck owner got twelve recall notices; the jury found the truck owner negligent. I look forward to seeing the briefing from all three [sic — the truck owner settled before trial] parties on the motion to overturn the jury’s finding that the truck owner was negligent, since you are telling me that there was no evidence that the truck owner negligently ignored the recall, at which time I will provide further coverage. I note further that the recall was done under NHTSA auspices (No. 00V106000), and the regulatory compliance with NHTSA recall procedures should, in a normative sense, provide an absolute defense to a “negligent recall” claim given that the accident was years after the 2000 recall. I recognize that you disagree with this position.

SN: Well why don’t you ask Daimler what the evidence is that APL got 12 notices? Ask Steve Hentler to Ask Roger Kesley to point out the evidence to you. You asserted that the vehicle owner received “actual notice” of the recall, and having published something on this issue it would seem you ought to have some facts to support what you have said. I might ask you if your (the Chamber of Commerce) view is that a recall which the engineers for the company admit does not fix a problem acts as a defense to a product liability suits.

TF: I have never worked for or spoken for and have never represented the Chamber of Commerce or Chrysler. I speak for myself, and I have no idea what the Chamber’s position is. My position would be the same if the truck-owner had constructive notice; at some point, Chrysler has fulfilled its duty, and it might as well be at the objective stage at the point where it complies with NHTSA recall requirements, since the regulations reflect the appropriate benefit-cost balancing decided in the democratic process by accountable regulatory officials, and certainty in bright-line-rules benefits litigants, consumers, and businesses. At some point, a driver is responsible for his own negligent acts; I think a driver who leaves a vehicle running without engaging the parking brake and then tries to jump into a moving vehicle has passed that point; you disagree, and that sort of creative thinking outside the box is well rewarded in our litigation system.

TF: I don’t wish to play Argument Clinic. The evidence that there is evidence that the truck owner ignored notices is that (1) Chrysler says so, (2) that’s what the Detroit News reported, (3) the judge did not issue a partial summary judgment on the question of truck-owner contributory negligence, (4) the jury found the truck-owner contributorily negligent, and (5) I’ve seen no evidence that NHTSA found that Chrysler failed to comply with 49 CFR Part 577. The counter-evidence is (1) You say they didn’t. Let’s say for the sake of argument #1 on both sides cancel each other out (which is generous, in my personal experience, but), we’ll even discard #2, and that leaves #3, #4, and #5, which while not necessarily dispositive of the question, is a lot more consistent with my understanding of events.

TF: But, like I said, I’m happy to post the post-trial and appellate briefs from both sides if you wish to provide them down the line, where, if what you say is true, you’ll have no trouble writing something irrefutable on the question.

Best wishes,

Ted

6 Comments

  • Ted,

    I don’t understand this case at all.

    Chrysler sent out a recall notice that the engineers say would not fix the problem. Shame on the company! But wait, the NHSTA was involved.

    Wouldn’t the regulators insist on anefficasious recall?

    The truck was not taken in for the recall probably because it did not have the problem.

    Why would the transmission slip when the truck was idling and unoccupied? And how does the truck run over you when you are trying to jump into it through a window?

    If one wanted to use tort litigation to provide benefits to a needy family in this case, wouldn’t 2 million, the gross liftime earnings of the deceased, do the trick? Where did the extra 53 million come from? These judgements are slaps in the face to every person who works for a living.

  • 1) It appears from the NHTSA documents that Chrysler thinks the problem is one of driver error, and is agreeing to the recall in an excess of caution. If so, it’s little wonder that one can find engineers who think that the recall wouldn’t fix the problem. (In the alternative, if engineers disagree on what is causing the problem, and a consensus is reached that X is the problem, and a recall is issued to fix X, then one can depose the engineer who thinks the problem is Y. Too, sometimes “engineers” refers to professional witnesses who used to work for the car company, are now disgruntled, and suddenly know everything about every litigation topic, and happily testify that Z is defective. One needs to know more to know whether one of these “engineers testified the recall wouldn’t work” scenarios apply. But that question is irrelevant, because the owner never returned the car for the retrofit. If Chyrsler had retrofitted the car, and then there was a gear-slip accident, the engineers’ testimony might have relevance to whether the gear-slip is due to defective design.

    2) It’s not outside the range of possibility that a transmission is designed such that one can “park” the vehicle without completely setting the gear to park, but it is in the intermediate step between park and reverse, and the idling causes it to shift in reverse. That’s impossible in my auto, which has a push-button for park, but one can see that possibility in other cars. But that’s why one never leaves an automobile idling and unoccupied, or fails to engage the parking brake when one parks.

    3) The truck clearly ran over Mraz. I don’t have a problem with that claim. One could slip trying to get into the vehicle as it is backing up, and have the front wheels run over you, which is apparently what happened.

  • My question is simple. What is the obligation of a manufacturer to notify a customer of a recall or potential hazard concerning their product?

    I just bought a used car. Who’s job is it to make sure that there are no outstanding recalls on it? Is it the new owner, the used car dealer, the previous owner, the dealership where the car was originally purchased, any mechanic who worked on the car at any time or the original manufacturer?
    Lucky this was a truck instead of an aircraft. If it was an aircraft everybody I just mentioned could be sued.

    ( By the way, I contacted the manufacturer with the VIN number and found out that there were no recalls on the car I bought)

  • Moreover, if the recall wouldn’t have worked, then what’s the theory under which the owner is liable?

  • As I mentioned, the federal obligation of the manufacturer is to comply with 49 CFR 577. NHTSA has the power to order a manufacturer take additional follow-up steps if it finds that the recall has not been effective. 49 CFR 577.10.

    If it comes down to a jury decision on a case-by-case basis instead of an objective standard, then there will be a problem akin to failure-to-warn claims: no matter what the manufacturer does, there will always be someone to say, in hindsight, if only the manufacturer had done just a little bit more up to and including a three-minute long Super Bowl Big Game ad with a skull and crossbones and loud warning buzzer, the recall would have worked.

  • Here’s my question for the lawyer (I know TF’s answer):

    Did Chrysler comply with the NHTSA? All those laws, etc?

    Unless you can say they didn’t, there’s little if any case here, and CERTAINLY no “punitive” damages.

    I repeat my question from the previous thread: what else could they have done? Stolen the vehicle, had the work done, then returned it? Yay, THAT’S a good idea…

    I could be convinced on damages ($2 million-ish, as someone pointed out above), but punitives are compltely and utterly ridiculous.