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.