Posts Tagged ‘Chrysler’

More on District of Columbia v. Beretta, U.S.A.

We get mail:

You mention in your District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”

But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.

Chris Schmitthenner

It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.

First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.

Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.

In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.

I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.

Update:David Hardy provides another example.

“Trial Lawyers Inc. — California”

The Manhattan Institute Center for Legal Policy (with which I’m affiliated) this week unveils a “new comprehensive study of the devastating impact of California’s lawsuit industry” entitled “Trial Lawyers Inc.: California”. It builds on 2003’s much talked-about “Trial Lawyers Inc.” report and, like that one, has been assembled by Jim Copland of the Institute.

Tomorrow (Apr. 14) from 10 to 2 at the St. Francis Hotel in San Francisco, the Manhattan Institute and the Pacific Research Institute are sponsoring an event (details) to call attention to the new report. Panelists include Jim Copland, Steven Hantler of DaimlerChrysler, and John Sullivan of the Civil Justice Association of California; there follows a keynote luncheon speech by author/TV host Catherine Crier, introduced by PRI’s Sally Pipes. P.S. The study has now been posted on the web, and is here. And Jim has an op-ed in the San Francisco Examiner (Apr. 13).

(cross-posted at Point of Law)

American Justice Partnership

This new organization, among other functions, serves as a clearinghouse for the latest information about litigation reform efforts around the country; its site has updates on the recent progress of such legislation in Missouri, South Carolina, Florida and elsewhere. The AJP also recently produced an audio feature (downloadable/streamable) in which three of us (myself, Steven B. Hantler of the DaimlerChrysler Corp., and Fox News commentator Judge Andrew Napolitano) discuss the topic, specifically from the standpoint of: what can a business person do to make a difference? If you’re interested in the ongoing battle over litigation reform, you’ll want to spend some time checking out the whole site.

Fieger Update: Gilbert v. Ferry

You may recall the $21 million verdict thrown out by the Michigan Supreme Court last year (Jul. 24) because of misconduct by Geoffrey Fieger at trial. (Gilbert v. DaimlerChrysler (Mich. 2004); parties’ briefs; Brian Dickerson, “Judges use Fieger tactics to rebuke him”, Detroit Free Press, Jul. 26; yclipse blog). Fieger had had a buddy “expert” social worker testify that the alleged harassment caused Gilbert’s pancreatitis, and told the jury that Gilbert was like a “Holocaust victim.”

After losing, Fieger responded by filing ethics complaints against the four justices who ruled against him, and, when that didn’t work, filed a civil rights lawsuit in federal court against the justices. This tactic, far more often seen performed by unstable pro se litigants than by prominent trial attorneys, was, as could have been expected, rejected by the trial court and then by the federal court of appeals. (Gilbert v. Ferry (6th Cir. Mar. 10, 2005), affirming 298 F. Supp. 2d 606 (E.D. Mich. 2004)) (via yclipse).

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…

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)).

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…

Jim Butler wins $105M verdict in Chrysler seat litigation

Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.

Read On…

Criticizing copyright

“Copyright is a trial lawyer’s dream — a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. …Recently, David Boies, famous for his representation of Al Gore, signed a rich contingent-fee deal to pursue a claim that Linux open-source software violates his client’s copyright. Last month, he launched test cases against DaimlerChrysler and AutoZone. If he prevails, businesses all across the country could find themselves paying big damages simply for having purchased Linux servers. It’s asbestos litigation for the Internet age.” (Stewart Baker, “Exclusionary Rules” (review of Lawrence Lessig’s Free Culture), Wall Street Journal, Mar. 26, reprinted at Steptoe & Johnson site)(more on technology and IP law). P.S.: David G. Post of Temple reviews Lessig’s book in the November Reason, and is in turn reviewed (before the fact) by Frank Gilbert at Slinkard Review.

Update: Mich. high court throws out Chrysler harassment award

It won’t come as much surprise to readers of our May 31, 2001 item (“Fieger’s firecrackers frequently fizzle”) that the Michigan Supreme Court has thrown out controversial attorney Geoffrey Fieger’s $20 million jury win on behalf of Linda Gilbert, a female millwright harassed by co-workers at a Chrysler assembly plant in Detroit. “The jury verdict is so excessive and so clearly the product of passion and prejudice that there can be no justification for the trial court’s denial of defendant’s motion for a new trial,” wrote Justice Robert Young Jr. in the majority opinion. Three dissenting justices on the seven-member court thought that reducing the award would be adequate remedy for the problems with the trial. (David Eggert, “Michigan Supreme Court Overturns $21 Million Verdict Against DaimlerChrysler”, AP/, Jul. 23). More: Dawson Bell, “Harassment verdict is overturned”, Detroit Free Press, Jul. 23; Ernie the Attorney.