Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘autos’

Romo roundup

The LA Times article on the California court of appeals decision in Romo v. Ford Motor Co. (see Nov. 26 and links therein) shows how far the media has tilted in coverage of tort reform: there are lots of unchallenged complaints from the plaintiffs’ attorneys and their interest groups that a $29 million total award won’t be enough to deter wrongful behavior and will allow companies “to avoid liability and responsibility.” This is mathematically nonsensical: if 1 in 10,000 Ford Broncos were subject to such an award over the course of their lifetime, it would wipe out Ford’s profits and then some. And if fewer autos than that cause damage, then perhaps Ford’s behavior isn’t so “reprehensible”, notwithstanding the characterization of the appeals court? (Indeed, three of the twelve jurors refused to join the Romo verdict.) No one is quoted questioning whether $29 million is too much to award against an auto company for a 1978 Ford Bronco that had 200,000 miles on it at the time of the accident and which exceeded federal safety standards put in place years after the 1993 accident. (Lisa Girion and Myron Levin, “Appellate Court Cuts Huge Crash Case Award”, LA Times, Nov. 26). The good news is that the California Court of Appeal recognized that the size of the corporation is not grounds on which to award punitive damages: though the court does not say so, to base punitive damages on such a metric effectively punishes corporations for being big than for a particular course of conduct. (Washington Legal Foundation amicus brief before U.S. Supreme Court).

Relatively uncommented on: the same day the same California Court of Appeal reversed a $10 million punitive damages award against Ford in Johnson v. Ford, where a couple bought a used car and had to replace the transmission twice. The couple will still walk away with over $170,000 from Ford and the dealer for their trouble. Anyone think that a $170,000 hit on the sale of a used Taurus isn’t enough to deter selling used cars with problems? Update Feb. 15: case settles.

Disclosure: I represent Ford Motor Co. in other litigation.

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Appeals court slashes Romo punitives

“A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people.” The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, “Court reduces $290 million verdict against Ford to $23.7 million”, AP/San Francisco Chronicle, Nov. 25). “As we read State Farm ? the legitimate state goal that punitive damages may seek to achieve is the ‘condemnation of such conduct’ as has resulted in ‘outrage and humiliation’ to the plaintiffs before the court,” Justice Steven Vartabedian wrote for [a unanimous panel of California’s 5th District Court of Appeal]. “It is not a permissible goal to punish a defendant for everything it may have done wrong.” (Mike McKee, “Punitive Damages Take Big Hit”, The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff’s arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.

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Back at the old test-rigging game

Ten years after litigation consultants helped NBC News stage fake “tests” which supposedly proved a GM truck vulnerable to fuel-tank puncture (see “It Didn’t Start With Dateline NBC“, our 1993 effort), you have to wonder whether much has changed. “Ford Motor Co. says Dallas rigged a crash test that purported to show that the Crown Victoria is vulnerable to deadly fuel tank explosions even when equipped with safety gear. Ford said its inspection of the car used in the test showed that items in the trunk had been welded together, including a crowbar that was aimed at the back wall of the fuel tank.” The test was paid for by personal injury lawyers representing the city of Dallas in a lawsuit over the death last year of police officer Patrick Metzler, who died when his Crown Victoria was rear-ended by a drunk driver at high speed. (“Dallas rigged Crown Victoria crash test, automaker alleges”, AP/Fort Worth Star-Telegram, Sept. 18.) In the 75-mph test, the vehicle’s trunk was filled with “items that the city said were commonly found in a police officer’s trunk”, which turned out to include a crowbar welded to a vehicle jack — just the sort of contraption an officer might lug around to traffic stops, no? Ford, which discovered such details only later on when it was allowed to inspect the test vehicle during litigation, “criticized the city for not disclosing the artificial conditions when reporting its testing results.” Reinforcing the sense of deja vu, Center for Auto Safety head and trial lawyer chum Clarence Ditlow publicly defended the use of the peculiar trunk contents as legitimate, the same way he defended NBC’s use of hidden rockets back then. (“Ford Questions Dallas Crash Tests”, AP/Primedia, Sept. 18; “City calls Crown Victoria tests ‘valid'”, Dallas Business Journal, Sept. 18). “Mark Arndt, the president of the company that oversaw the testing, is himself an expert witness for the City of Dallas in its lawsuit against Ford. Arndt makes his living as a hired gun testifying against carmakers.” (Mike Scott, “City’s crash test spawns controversy”, reprinted at Houston Citizens Against Lawsuit Abuse site). For trial lawyers’ side on the Crown Victoria controversy, see Ditlow’s Center for Auto Safety; Dallas City Hall; and Crown Victoria Safety Alert. For Ford’s side, see CVPI.com.

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Where eagles fear to litigate

Eagle Pass, Texas, in Maverick County along the Rio Grande, isn’t likely to shake its reputation for plaintiff-friendly jurisprudence any time soon, as a San Antonio Express-News profile makes clear. “L. Wayne Scott, a professor at St. Mary’s University Law School…. who has mediated civil cases in Eagle Pass, estimates defendants there are roughly 10 times more likely to lose than in conservative Dallas and two or three times more likely to fall than in San Antonio. … Indeed, the prospect of facing a jury in Eagle Pass — where Mayor Joaquin L. Rodriguez also is one of the city’s top plaintiff’s attorneys — frequently makes companies more willing to settle and in higher amounts than they would agree to in other venues.” Although a 1995 round of state tort reforms has somewhat curbed the rampant forum-shopping by which plaintiff’s lawyers used to bring suits from around the state to Eagle Pass, there is still a steady diet of cases to be had against major national defendants, including suits against automakers over road crashes and a case against Connecticut-based shotgun-maker O.F. Mossberg & Sons Inc. over a hunting accident that took place in another Texas county. Local plaintiff’s attorney Earl Herring says that a case worth $10,000 in Eagle Pass would be “worth $500 in Uvalde.” (Greg Jefferson, “Eagle Pass remains known as plaintiff’s attorney paradise”, Nov. 2).

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“Court overturns damages award for van full of mice”

“Boise attorney Gale Merrick, who represented the automaker, said the Supreme Court ruling reinforced the company?s contention that there was no evidence that mice got into the van because of some manufacturing defect. ‘They could have left the windows down or a door open,’ Merrick said.” An Idaho jury had held Honda liable for $10,250 because of the smell of mouse droppings in the vehicle. (Idaho Statesman, Oct. 24; Powers v. American Honda Motor Co.; “Of mice and men: Honda damages are overturned”, AP, Oct. 23; see also Julie Pence, “Mouse tales … Little critters can cause problems in your car”, Twin Falls Times-News Online, Oct. 24 for a story about the problems of mice in cars in the area).

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Update: two personal-responsibility cases

Updating a case covered on Mar. 28, 2000: a Texas court of appeals earlier this year reversed an award of $43 million (voted as $65 million by the jury, then reduced by the trial judge) against Honda to the survivors of a woman who accidentally rolled her car off a boat ramp into Galveston Bay and at autopsy was found to have .17 alcohol in her bloodstream. Her survivors argued that she was trapped in the sinking car by her seat belt, but the appeals court said they had not shown that any alternative belt design would have been any safer overall. Incidentally, this particular Galveston boozy pier roll-off award is guaranteed to be a different case entirely from the Galveston boozy pier roll-off award discussed in this space Aug. 28, in which the city of Galveston and its pier lessee were supposedly the ones to blame, the verdict came in at $10.5 million, and an appeals court again threw it out (Mary Alice Robbins, “Texas Court Reverses $43M Judgment Against Automaker”, Texas Lawyer, Feb. 19).

In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state’s highest court in which he had argued that his girlfriend’s grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, “Open and Obvious Danger Doctrine Reaffirmed”, Winter 2001; for details of case see also Cathleen F. Crowley, “Court decision could impact pool owners”, Lawrence Eagle Tribune, Jan. 4, 2000).

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Bill Shoemaker, 72

Legendary record-setting jockey Bill Shoemaker died today at the age of 72. The New York Times obituary (Joseph Durso, “Bill Shoemaker, Jockey With Winning Touch, Dies at 72”, Oct. 12) only lightly touches on one of the less admirable incidents of Shoemaker’s life. Shoemaker was driving after a couple of beers–enough to make the 98-pounder legally drunk according to a blood test. When he reached for his car phone, he lost control of his vehicle, and crashed down a steep embankment, paralyzing him beneath the armpits. Shoemaker sued the auto manufacturer, the state of California (for failing to install guardrails on a straight road), and the seven doctors who saved his life–a decision he said he regretted in a 1999 interview: “Shoemaker says he always has felt solely responsible for the accident. ‘I’ve never asked, “Why me?” because it was my own fault. I did it. I can’t blame anybody else. I was at that point at the beginning.’ He now expresses regret over the suits, saying he only followed his attorney’s advice.” (Nancy Kruh, “Legendary Shoemaker has made peace with his new ride”, Dallas Morning News, June 25, 1999).

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Class actions and the cost of cars

Steve Blow of the Dallas Morning News, like Alex Tabarrok before him (see Sept. 19), is far from pleased with the results of the class action on behalf of otherwise uninjured owners of recalled Firestone tires; he follows up with a second column which gives details of another class action, this time against Nissan over a printed error on car leases (“Firestone, lawsuits and cost of inflation”, Oct. 4; “Isn’t it time to raise the bar for lawyers?”, Oct. 7). And across town at the Fort Worth Star-Telegram, J.R. Labbe discusses the recent case (see Oct. 4) in which Philip Morris agreed to pay $2 million to a mother who by her own account left a child and a lit cigarette unattended in a car contrary to Texas law. “The public may never know why the company chose to settle this case, but you can be sure it will open the door for additional claimants looking to blame someone for their own irresponsible actions.” (“Somebody has to pay”, Oct. 5). (Corrected May 1, 2004 to remove erroneous implication that tire owners were receiving financial compensation in the class action).

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Passenger hurt in drunk driving accident collects from automaker

As if to respond to our post on joint and several liability on Friday, a Nebraska jury found for a woman paralyzed in an accident when the driver drove off the road and rolled over their Chevy Blazer. Both GM and the driver (who was later charged with DUI) are held liable, but only one is actually going to pay the bulk of the award, if it is upheld. GM will effectively be paying insurance for the consequences of drunk driving–and of getting into a car with a drunk driver.

Plaintiff claimed that a $20 roof-strengthening would have prevented her injuries. GM denied this causation theory. (Butch Mabin, “Jury awards woman $19.5 million”, Lincoln Journal Star, Sep. 27) (via Bashman). But even if one accepts the plaintiff’s argument that the lack of an additional $20 is a sine qua non of her injuries, her lawsuit presents troubling public policy implications. GM isn’t faced with a single yes/no $20 safety decision when it designs a car–it faces hundreds, if not thousands, of them. And not all of them are binary. Twenty dollars of roof strengthening may have prevented these injuries, but once GM takes that step, there will still be other accidents where yet another twenty, or forty, or eighty dollars of metal in the roof would have prevented injuries. If too many $20 additions are made, some people will not buy the hypothetical Blazer and will instead buy a cheaper (and/or older) and less safe car. Adding $20 of roof-strengthening may decrease the likelihood that a particular accident will result in serious injury, but, by elevating the center of gravity, may increase the likelihood that the SUV is in a rollover accident in the first place and, by increasing the weight, increases the risk of an accident due to inadequate braking power. The SUV, as it is, may perform relatively poorly in rollovers as plaintiffs argue, but it performs much better (some would argue too well) in collisions with other vehicles. And we have not even begun to mention the societal cost that comes from reducing the gas mileage of the SUV by increasing its weight. (The one thing I have in common with Arianna Huffington is that I drive a Prius.)

A jury of laypeople seems to be poorly situated to make these holistic design decisions — especially when the rules of a product liability case often mean that a jury is considering a particular design question in isolation. Which is why plaintiffs’ attorneys are happy to characterize the scales as one of a quadriplegic against a heartless giant corporation that supposedly valued its $20 more than a mother’s ability to walk. It would take an exceptionally wise jury to accurately balance the visible and tangible costs of an after-the-fact gravely injured member of their community against the before-the-fact intangible benefits to society of the engineering design decision of different accidents prevented and of affordable new cars. The elites of the national media and our political and regulatory leaders have trouble articulating the subtleties of these issues. Why do we ask a jury of laypeople to grapple with them, often deliberately deprived by legal rules of a full complement of the tools they need to make a correct decision, when a decision on behalf of an automaker would require them to take the painful psychological step of looking in the eye a quadriplegic who has had her life irreversibly altered, and telling her she will recover nothing?

Disclaimer: I represented GM from 1995 to 1997.

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