Ten years ago at Overlawyered is a post from Overlawyered - Chronicling the high cost of our legal system

Sued if you do, sued if you don’t dept.: laminated vs. tempered glass is a post from Overlawyered - Chronicling the high cost of our legal system

January 5 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Furor over Ford Explorer class action settlement is a post from Overlawyered - Chronicling the high cost of our legal system

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.

More: The Recorder. And Ted in comments flags our coverage of the case two years ago.

“Few plaintiffs in Ford case use coupons as lawyers reap millions” is a post from Overlawyered - Chronicling the high cost of our legal system

Didn’t want “sibling relationship to completely disintegrate over this tragedy” is a post from Overlawyered - Chronicling the high cost of our legal system

As we stated in January 2006,

Rose Marie Munoz wasn’t wearing her seatbelt in 2002 when the spare tire on the 1992 Mazda Navajo (a rebadged Ford Explorer) failed and driver Derek Saenz rolled over the SUV; the other three occupants of the vehicle were uninjured. Munoz was ejected and temporarily paralyzed, has lost use of her right hand, and now walks with a limp. A Nueces County, Texas jury held Ford 75% (and Mazda another 10%) responsible for $29 million in damages, on the grounds that Ford should have done more to warn consumers about the dangers of ten-year-old tires—even though the tires in question were the notorious Bridgestone/Firestone tires that had actually been recalled in 2000, but had been left on the SUV. Jurors said they were influenced by the fact that Ford has since added a warning in their owners’ manual about replacing tires more than six years old. Firestone settled the case, allowing the plaintiffs to focus blame on Ford at trial. Ford blames the accident on driver error, and will appeal. (Sean M. Wood, “Ford hit with big judgment in Nueces”, San Antonio Express-News, Jan. 28; Karen Lundegaard, “Texas Jury Slaps Ford With $29 Million Verdict”, Wall Street Journal, Jan. 27; AP, Jan. 27; plaintiffs’ lawyer press release).

Alas, I could find no record of an appeal, which suggests that Ford was pressured into settling. (I’m happy to be corrected by our Texas readers if I’ve searched the databases wrong.) But I learned something else about the case that we hadn’t previously commented on. I found the accident report (page 30-31 of this PDF). The accident occurred in Atascosa County, just south of Bexar County, the home of San Antonio, where the driver and the plaintiff were from. But the lawsuit was brought in Neuces County in Corpus Christi–117 miles away from the accident, and further from San Antonio. Add forum shopping to the many sins of this litigation.

Update: Rose Marie Munoz v. Ford is a post from Overlawyered - Chronicling the high cost of our legal system

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.

Pearsonesque $2 billion consumer-fraud lawsuit against Ford is a post from Overlawyered - Chronicling the high cost of our legal system

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.

SUV suits follow-up is a post from Overlawyered - Chronicling the high cost of our legal system

“That’s not a cute story. Not even close. It’s a story of an ethical violation, a lie to the government, and a confidentiality breach.”

SUV wars: any means to an end? is a post from Overlawyered - Chronicling the high cost of our legal system