Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘autos’

Ford and the Crystal City sweethearts, cont’d

Auto Connection (Mar. 14, scroll to “Ford Appeals Frontier Justice”) has some new material on the astounding $31 million verdict against Ford from Zavala County, Texas, last discussed in this space Mar. 7. A few snippets:

In the testimony that followed [a Feb. 22 mistrial motion by Ford], it was revealed that not only had [juror Diana] Palacios failed to acknowledge her romantic entanglement [with plaintiff’s attorney Jesse Gamez] during jury selection, but had previously been a client of Gamez in other litigation, had been an aunt by marriage of one of the plaintiffs and indeed had solicited the plaintiffs to sue Ford and Guerrero and hire Gamez as their lawyer….

Incredibly, Ford’s motions were denied, but Juror Palacios was removed.

The next day’s Express-News carried a story about the motions and denials.

But a mysterious man went around to all the distribution points in Crystal City, buying up all the papers before anyone could read them. The San Antonio newspaper management 130 miles away quickly got wind of this, replenished the newspapers and ran an editorial the following day denouncing the act as an attempt to keep Crystal Citians from learning of their local conflicts of interest. The miscreant was never identified.

The trial went on, plaintiffs maintaining that Ford was negligent, because if the Explorer had only been equipped with a type of laminated side glass used by less than one percent of the world’s vehicles, the ejections and injuries would not have occurred.

Ford plans an appeal. (More: May 13, May 16, May 29)

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Mikolajczyk v. Ford and Mazda: $27 million in Escort seat litigation

Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions–with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk’s ten-year-old daughter survived, but Mikolajczyk’s seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn’t even mention the 40/60 split in comparative fault. (Bill Myers, “$27 million verdict in fatal accident”, Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, “Ford, Mazda ordered to pay $27 million in death”, Chicago Sun-Times, Mar. 17; Chris Hack, “Carmakers to pay in SE Side crash”, Daily Southtown News, Mar. 17; Rafael Romo, “Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat”, WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.

Bruce Pfaff, Mikolajczyk’s attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn’t told of Gaczkowski’s condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn’t allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs’ preferred seat-design would have also caused injury. It’s ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it’s truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.

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Update: Mohr v. DaimlerChrysler $53 million verdict

DaimlerChrysler statement on the suit after the jump; it’s almost scandalous what the press accounts (Feb. 26)left out, but not as scandalous as the verdict. The unbelted Vickie Mohr was killed from blunt force trauma to the back of the head–caused when she was hit by the 245-pound unbelted passenger in the backseat. (The jury found that passenger, Carolyn Jones, responsible for only a small percentage.) Brett McAfee, the 17-year-old driver who killed the two plaintiffs when he fell asleep at the wheel going 45 mph, but was found slightly less than half-responsible by the civil jury, pleaded no contest to vehicular homicide criminal charges. (via Dodgeforum, which has an impressive array of photos of the totalled Durango Caravan).

Read On…

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Ford’s $31 million sweetheart verdict

The famously pro-plaintiff jurisdiction of Zavala County, Texas once again lived up to its reputation the other day when one of its juries returned a $31 million verdict against the Ford Motor Co. in the case of the rollover of a 2000 Explorer which killed two occupants and injured two others. Legal commentators around the web are abuzz about the most remarkable angle of the story, namely that until deep into the trial Ford did not learn that one of the jurors, Crystal City city manager Diana Palacios, was the girlfriend of Jesse Gamez, one of the lawyers on the team of plaintiff’s attorneys headed by Houston’s Mikal Watts. Ford also presented evidence that Palacios, incredibly, had actually solicited two of the crash victims for her boyfriend to represent. Nonetheless, Judge Amado Abascal refused to declare a mistrial, instead dismissing Palacios from the jury and issuing a supposedly curative instruction to the remaining jurors. David Bernstein, Tom Kirkendall and John Steele comment. (John MacCormack, “Juror’s relationship with lawyer stalls Ford trial”, San Antonio Express-News, Feb. 23). (Addendum: one of John Steele’s readers has drawn his attention to this 1997 Texas Supreme Court opinion which co-stars the very same Mr. Gamez and Ms. Palacios in a Norplant case — very curious stuff.)

The other issues raised by the verdict, however, deserve attention as well. The accident was caused by the speeding of the vehicle’s driver, and none of the four occupants was wearing a seat belt; all were ejected. Attorney Watts (Apr. 12-14, 2002) advanced the theory that the injuries were Ford’s fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system. (John MacCormack, “Zavala jurors hit Ford for $28 million”, San Antonio Express-News, Mar. 2). Notes the Detroit News:

Ford said laminated glass wouldn’t have kept the women from being ejected and was hardly ever used in side windows when the vehicle was made.

“At that time, 99.9 percent of all vehicles made by all manufacturers, through the 2000 model year, had the kind of tempered glass used in this vehicle,” Vokes said. The National Highway Traffic Safety Administration doesn’t require laminated glass in side windows, she said.

(“Explorer suit costs Ford $31 million”, Detroit News, Mar. 3) AutoBlog has a short write-up with a good comments section; note in particular comment #22, on one possible safety advantage of not using laminated glass on cars’ sides. More: Mar. 22, May 13, May 16, May 29.

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Mohr v. Daimler Chrysler – $53 million

A jury found Chrysler about 45% responsible for an accident where “an inexperienced 17-year-old driver fell asleep at the wheel and crashed into the Mohr’s vehicle at a devastatingly high speed.” Said Steve Hantler, assistant general counsel of DaimlerChrysler Corp, “To impose any punitive damages in these circumstances, let alone $48 million, is an especially egregious miscarriage of justice.” Plaintiffs claimed the Dodge Caravan was unsafe in offset collisions; Chrysler notes that the Jeep overrode onto the minivan, so IIHS offset testing was irrelevant, aside from the fact that the Caravan doesn’t perform worse than other minivans in that test. Plaintiffs also blamed a second death in the accident on a faulty seatbelt, which Chrysler denies. Press accounts are still too sketchy to tell you more; we’ll have a follow-up down the line. (Bloomberg, Feb. 24; Mohr v. Daimler Chrysler Corp., No. 03-2433 (Shelby County, TN)).

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Driver only 49% responsible for running red light

71-year-old Doris Christous had just left a Wal-Mart in New Hampshire when she decided that she was waiting too long for a red light to change–so, rather than waiting for a safe right turn, she darted out across five lanes of traffic against the light. Unfortunately, David DeBenedetto was driving through a green light at the time, hit Christous’s Bonneville and flipped, killing him at the scene when his pickup truck landed on him while he was being ejected out of the passenger-side window.

DeBenedetto’s family sued CLD Engineering Consultants, the engineering firm that redesigned the expansion of the intersection–not the road into or out of the Wal-Mart. The police officer who investigated the accident testified in defense of CLD, but a jury found them 49% liable, even though they were just following the dictates of the state Department of Transportation (2% liable). So CLD is on the hook for $2.6 million of a $5.2 million damages award. (John Basilesco, “Jury awards $2.6 million to family”, The Eagle-Tribune, Feb. 3; John Basilesco, “Officer: Sensors not to blame in traffic death”, The Eagle-Tribune, Feb. 1; Chris Markuns, “Widow’s work helps keep dangerous drivers in check”, The Eagle-Tribune, Jun. 7, 2000, John Basilesco, “Another senior who caused fatal crash may get only ticket”, The Eagle-Tribune, Nov. 11, 1999, John Basilesco, “Death caused by ill-timed traffic signal?”, The Eagle-Tribune, Jun. 2, 1999). It’s unclear whether the jury was permitted to consider the percentage fault of the settling parties. Or why, if the engineering firm was so at fault, other drivers stuck at the light over the previous years managed not to kill anybody.

The plaintiff’s expert, Ronald A. Morra, blamed CLD at trial. According to the press account, he had previously provided a sworn statement that the accident was the fault of the company that installed the signal control system, but changed his story–perhaps after that defendant settled with the plaintiff. (John Basilesco, “Traffic light timing focus of lawsuit”, The Eagle-Tribune, Jan. 28).

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Budget hit for $20M after NYC crash

“A Manhattan pedestrian, paralyzed in an accident caused by a driver of a rental car, has been awarded a $20 million judgment against Budget Rent-A-Car”. The driver of the car had run a red light and allegedly was driving with a suspended license; a lawyer for the victim, Ethan Ruby, said his client might not have recovered if not for New York’s uniquely harsh vicarious-liability law which puts firms that rent or lease cars on the hook for virtually all accidents caused by their customers. (Dareh Gregorian, “Car-Rent Firm Hit for $20M”, New York Post, Feb. 1). For more on the New York law, see Sept. 5, Apr. 25, and Apr. 4, 2004 and links from there.

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Memo to fireworks abusers

At Forest Avenue and Sixteenth Street in Des Moines, two miscreant youths who’d been riding with friends in a rented 1999 Chevy Blazer began shooting off a large quantity of fireworks at persons and vehicles in the neighborhood. What happened next is somewhat muddled by the contradictory accounts of various witnesses, but involved the detonation of the substantial trove of fireworks in the Blazer’s cargo area, severely injuring several of the car’s occupants. Last month the Iowa Supreme Court ruled against a lawsuit seeking to make Enterprise Rent-a-Car pay for the injuries through vicarious liability, saying the accident could not reasonably be attributed to the driving of the young woman who’d rented the vehicle. (Wells v. Whitaker and Enterprise). Random Mentality (Dec. 10) has more.

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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).

Read On…

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Backs SUV over toddler, blames Nissan

In Garland, Texas, in October, a man backing up his Infiniti SUV accidentally ran over and killed his two-and-a-half-year-old daughter. Now, represented by attorney Windle Turley, his family is suing Nissan, parent company of Infiniti. “They claim new back-up video cameras or sensors which detect objects behind a vehicle were available, and should have been installed in their SUV.” (Don Wall, “Garland family sues carmaker over toddler’s death”, WFAA-TV (Dallas-Fort Worth), Nov. 17). GruntDoc had a strong reaction to the story (Nov. 20).

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