“Every time we go to hire an attorney to defend a lawsuit, as soon as we say ‘Ford Explorer,’ they charge us more money,” explains a company spokeswoman. Today’s Explorer is based on a design entirely different from the model that attracted rollover litigation in the 1990s, which doesn’t seem to matter. [Edward Niedermeyer, Truth About Cars]
And in timely news, a specious $18M sudden acceleration verdict (see our August 2006 coverage) was unanimously reversed by the South Carolina Supreme Court after they threw out junk-science testimony theorizing that electromagnetic interference with the cruise control caused the sudden acceleration. Passengers in the crash that wore their seatbelts were uninjured, but the unbelted driver was paralyzed. The plaintiff has the option of a new trial. (Sonya Watson v. Ford Motor Company, h/t L Nettles comment).
The settlement discussed in this space July 17 — in which lawyers nabbed more than $25 million in fees and expenses, while fewer than 100 consumers redeemed Ford coupons worth $37,500 — was covered by the Associated Press last week, which stirred outrage in many quarters [Krauss/PoL, Greenfield, Cal Biz Lit]. As Cal Civil Justice notes, the settlement was purportedly on behalf of owners who suffered no rollover or other mishap. Instead, it sought damages for losses in the vehicle’s resale value due to adverse publicity, a nicely circular theory, since the adverse publicity was in good measure propelled by various allies of the plaintiff’s bar. Interestingly, several groups that had opposed the settlement dropped their objections after it was rejiggered to require Ford to provide a $950,000 donation to what are described as nonprofit auto-safety groups (which ones?). Plaintiff’s firm Lieff Cabraser, in a letter to AP, cited that and changes in Ford advertising as reasons why the settlement provided more benefit to the customer class than can be measured by the coupons alone.
Fewer than 100 consumers out of a million covered in a class-action lawsuit settled in Sacramento Superior Court have redeemed coupons to buy a new Ford, but that hasn’t stopped their lawyers from cashing in on a sweet payday.
So far, the dollar value remitted to plaintiffs in the Ford Explorer rollover class-action lawsuit has added up to about $37,500. Meanwhile, squadrons of lawyers from 13 firms from Sacramento to Woodbridge, N.J., have raked in more than $25 million in attorneys’ fees and expenses.
Ruben Zamora lost control of his Ford Explorer after a tread-tire separation, causing a rollover; because he was not wearing his seatbelt, he was ejected from the vehicle and suffered brain injuries. (His four passengers suffered only minor injuries.) This is, a LaSalle County, Texas state court jury decided, 65% the fault of Ford, putting them on the hook for $6.5 million in damages. Ford denies responsibility and will appeal. (Margaret Cronin Fisk, “Ford Loses $6.5 Million Verdict in Explorer Rollover”, Bloomberg, Feb. 4; “Auto news headlines,” Detroit Free Press, Feb. 5; Nick Sullivan, “Brain-Injured Man Awarded $6.5M in Texas Rollover Case”, Andrews Publications, Feb. 11). Until a 2003 tort reform, Ford would not even have been allowed to introduce evidence that Zamora was not wearing his seat belt.
- Remember that ludicrous case where the Florida driver fell asleep, crashed his Ford Explorer, his passenger was killed, and a jury blamed Ford to the tune of $61 million? (See also Sep. 10.) A Florida court got around to reversing it, though only to grant a new trial under a variety of erroneous evidentiary rulings that prejudiced Ford, rather than because the suit was too silly to ever conceivably win in a just society. The remand goes back to the same judge that let the suit go forward and committed multiple reversible errors in favor of the plaintiff. [Ford Motor v. Hall-Edwards (Fla. App. Nov. 7, 2007); Krauss @ Point of Law; Daily Business Review; Bloomberg/Boston Globe]
- Not really a man-bites-dog story, but Geoffrey Fieger (Aug. 25 and rather often otherwise) speaks. [ABA Journal]
- Uh-oh: Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
- The real NatWest Three deal. [Kirkendall; July 2006 in Overlawyered]
- Homeowners fined $347,000 for trimming trees without a permit—after the Glendale Fire Department sent them a notice telling them to trim their trees for being a fire hazard. (h/t Slim) [Consumerist]
- Disclaimers at children’s birthday parties (h/t BC) [Publishers Weekly]
- British Christmas parades handcuffed by litigation fears. (h/t F.R.) [Telegraph]
- Underlawyered in Saudi Arabia: A “19-year-old Saudi gang-rape victim was recently sentenced to 200 lashes and six months in jail for being in a car with an unrelated male when the attack occurred. Last week, her lawyer was disbarred for objecting too vociferously.” [Weekly Standard]
- Don’t forget to vote for us at the ABA Journal Blawg 100.
- Tab Turner’s Pearsonesque $2 billion lawsuit over Ford Explorer SUVs proceeds in California state court in Sacramento. [Sacramento Bee; earlier, June 18]
- West Va. judge holds hearing over YouTube videos disclosing plaintiff depositions. [AP/Insurance Journal; earlier, August 4]
- On Point has the complaint from Leroy Greer’s suit against 1-800-Flowers for failing to do enough to keep his wife ignorant of his flower purchases for his mistress.
- Movable Type appears to have swallowed several comments from earlier this month (including at least one comment from me). Apologies to everyone affected.
The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the “fraud” that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)
Oh, sorry, it’s not Roy Pearson, it’s Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, “SUV rollovers put Ford’s future in judge’s hands”, Sacramento Bee, May 24; official class notice from Sacramento County Court]
But because ATLA and Kia Franklin have condemned Roy Pearson’s lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus “consumer fraud” legal theory that Pearson used. Of course, there’s a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.
Some follow-up observations about the Ford Bronco $31 million verdict post.
1. South Carolina is one of the few states that has the pure form of the doctrine of “joint and several liability”, under which any deep-pocket defendant is 100% liable even if they’re only found 1% at fault. Thirty-seven states have enacted some limits on this, but South Carolina has not. Such a legal system creates incentives to find the deepest pocket and attach a shred of fault to them so that they are held entirely responsible for the consequences of others.
2. I’ve read several plaintiffs’ briefs arguing for upholding similar verdicts, as well as submissions made to NHTSA arguing that certain vehicles are “too prone” to roll over. They essentially come down to requests to ban SUVs: every SUV faces accusations of being “too prone to roll over.”
SUVs are designed to have high clearance to traverse rugged terrain. This raises the center of gravity and affects the handling: it’s a known tradeoff of the laws of physics. There are a wide variety of tests of varying degrees of scientific merit one can use to suggest a vehicle is “too prone” to roll over, and plaintiffs have the benefit of cherry-picking which tests to apply to which vehicles. You’ll find lots of lawyers complaining that the Bronco II allegedly responded poorly in “J-turn tests”, where the steering wheel is turned 330 degrees in one third of a second and held there for another 4.67 seconds. Ford designed the Explorer to pass the J-turn test to take away this claim, and the trial lawyers started using different methodologies to claim that the Explorer was too prone to roll over.
Empirically, however, the Bronco doesn’t roll over more than several other SUVs on the market, which is why NHTSA, in both the Bush I and Clinton administrations, refused to recall the Bronco when the plaintiffs’ bar asked it to. When I say Ford was held liable for producing an SUV, I’m not spinning: it was because it was held liable for producing an SUV.
Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can’t change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.
Perhaps we as a society would be better off taking the nanny-state step of banning SUVs, forbidding people from wildnerness driving because too many drivers don’t know how to drive SUVs in highway conditions, but that’s a decision that not only would end the American auto industry, but should be made other than by a 12-person jury of laypeople. This vehicle rolled over because the driver drove off the road.
3. The ultimate cost is borne not by Ford, but by the rest of us: lawsuits like this add $500 to the price of every American car. You and I can’t go to the car manufacturer and get a cheaper car by promising not to be as stupid a driver as this one was. So careful drivers are subsidizing careless ones.
4. It’s unlikely that the $500 applies equally to expensive and cheap cars, but not in the manner you think: (1) the less expensive car is more likely to be driven longer and more often and with more carpooling passengers; (2) less likely to have expensive top-of-the-line safety features that haven’t yet become standard and thus more likely to be sued over the lack of those features; and (3) more likely to be sold in such a volume that trial lawyers have put together a cheap package targeting the vehicle for lawsuit in the hopes of achieving economies of scale by targeting a lot of potential plaintiffs. (There will never be a mass tort for a Rolls Royce, for example—not enough of them are sold.) Note that the plaintiffs’ bar puts profits before people: they look at the costs and benefits of bringing suit, and target the most profitable vehicles to sue over, rather than the most dangerous ones, which is why the Ford Pinto is notorious and the VW Beetle (whose designers were so inconsiderate to write their memos in German instead of cheap-to-analyze English), which killed people at a much higher rate, is remembered with fond nostalgia.
So average liability is, if anything, higher for cheap cars than expensive cars; the $500 figure (which comes directly from the president of Chrysler) is probably higher for cheap cars and lower for expensive cars, and perhaps close to zero for the Rolls.
In 1997, Melahn Parker fell asleep while driving a 1996 Ford Explorer at highway speeds; the SUV crashed, killing 17-year-old passenger Lance Crossman Hall, who was ejected because he was reclining in the front seat, thus preventing his seat-belt from restraining him. Parker was charged with careless driving, but a Miami jury viewed the accident as Ford’s fault, and awarded $61 million in damages yesterday, $60 million in pain and suffering. The plaintiff, Joan Hall-Edwards’s, Hall’s mother, has thus won a marvelous windfall in that her son was killed by a careless driver instead of by a means where she would have no deep pocket to seek lottery-style damages.
Ford will appeal. “This tragic accident occurred when the driver of the vehicle fell asleep at the wheel while traveling at highway speeds. Real-world experience and testing show that the Explorer is a safe vehicle, consistently performing as well as or better than other vehicles in its class,” Ford spokeswoman Karen Shaughnessy said.
Hall-Edwards’s attorney was Bruce Kaster, who complained that Ford blamed defective Firestone tires for what he called Explorer handling problems. This is a curious complaint, because Kaster calls himself “the nation’s foremost authority on tires and their defects,” has brought several lawsuits against Firestone, and has reserved the domain name “tirefailures.com” for his law firm. On his site, Kasten complains that Ford models don’t have the same features as the more expensive Volvo models made by Ford’s subsidiary. Is it really to be considered a “defect” if an inexpensive car has fewer safety features than a more expensive car? Are consumers not permitted to make the decision for themselves how safe a car to purchase?
No doubt there will be further details than what the AP has provided so far, and we’ll update as more becomes known. (Jennifer Kay, “Ford Ordered to Pay $61M in SUV Accident “, AP, Nov. 16).