It’s worth noting the Jim Butler firm’s description of the case:

The evidence showed the impact was minor. Though Stockell was speeding at the time, the minivan was also moving forward and the change in velocity (Delta V) was only 17 to 20 mph.

To repeat: the plaintiffs’ attorney said that a Delta-V of 17-20 mph is “minor.” I suppose in the astronomical sense that a Delta-V of 17-20 mph wouldn’t escape earth orbit, but it seems fairly major for someone in a heavy minivan. For those of you at home who want to experience what a “minor” Delta-V collision of “only” 17-20 mph feels like, drive into a reinforced brick wall at 17-20 mph with your airbag turned off, but be sure to wear your seat-belt to reduce the chance that you go through your windshield. Another way you can have a Delta-V of 20 mph is if you are dropped about 12-15 feet onto a concrete surface. I sure hope that the trial judge didn’t let Butler lie about physics to the jury like that, but I fear I know the answer.

Flax v. Chrysler, one more thought is a post from Overlawyered - Chronicling the high cost of our legal system

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.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.

However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.

Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler is a post from Overlawyered - Chronicling the high cost of our legal system

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.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. And now the rest of the story:

We were incomplete in the accident description. Flax’s grandfather, driving the minivan, noticed Stockell coming up fast behind him–and moved into the left lane of oncoming traffic, which was unfortunately where Stockell also had moved when he slammed into the rear of the minivan. That’s still mostly or entirely Stockell’s fault for going so fast in a residential neighborhood, but, remember: slow-moving traffic, always go to the right.

The remaining $27+ million of the decision was appealed to the Tennessee Court of Appeals. As Beck and Herrmann note, the evidentiary rulings are appalling–anecdotal evidence of other accidents was introduced, real-world empirical statistical evidence showing the vehicle was safe was excluded, the fact that the expert had been caught lying about his testing did not merit a new trial, the evidence of a “safer alternative” is non-existent but held sufficient–resulting in an affirmance of the liability verdict. But, at least, the court reversed the punitive damages on the grounds that regulatory compliance showed good-faith efforts towards safety, citing Tennessee Code Ann. §29-28-104. The court also threw out an emotional distress claim on grounds of lack of evidence, though the affirmed $3.7 million noneconomic damages award should be some solace for that loss. Flax v. DaimlerChrysler, No. M2005-01768-COA-R3-CV, 2006 WL 3813655 (Tenn. App. Dec. 27, 2006); Jenner & Block report. There is no record of further litigation. If I read McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), correctly, Tennessee does not have joint and several liability, so, per the jury verdict, Chrysler is only 50% liable for the $5 million in economic and non-economic damages, with reckless driver Louis Stockell on the hook for the other $2.5 million. The decision received no mainstream press coverage.

Flax v. DaimlerChrysler seat back appeal is a post from Overlawyered - Chronicling the high cost of our legal system

Somehow, we have not previously covered James Butler on Overlawyered. We shall correct that oversight.

A magazine recently did a puff piece on Butler that only mentioned in a sidebar that his most famous verdict, $105 million in Moseley v. General Motors, as seen on Court TV, was overturned on appeal. (David Whitford, “Is James Butler Out to Get You?”, Fortune Small Business, June 2003; Walter Olson, “The Most Dangerous Vehicle On the Road”, Wall Street Journal, Feb. 9, 1993 (more on Moseley)). A 1997 piece in the National Law Journal recognized a successful defense against a Butler-brought rollover case featuring Butler’s standard tactics of personal attacks. (“Successful Strategies from 10 of the nation’s top litigators”, Sep. 22, 1997).

The first chapter of Max Boot’s Out of Order tells the tale of another Butler trial, Hardy v. General Motors. (An amusing personal side note: David Horowitz wrote an angry letter to Amazon complaining about the left-wing bias exhibited by the little-known reviewer Amazon used for Boot’s book.)

In the 1996 case of Hardy, a drunk driver who wasn’t wearing his seat-belt flipped his Blazer and paralyzed himself when he was thrown from the vehicle. Though GM analysis showed the door didn’t even open, the theory of liability was a defective door latch. Butler and the other plaintiff’s lawyers peremptorily excluded all the white members of the panel, and an all-black jury awarded the black plaintiff $150 million. As one juror put it to Boot, “I don’t feel like all the GM door latches are bad. I ain’t got nothin’ against GM ’cause I use GM motor products myself… He got paralyzed. I figured we should give him something.” The firm of Butler’s co-counsel, Jere Beasley (Apr. 15 and links therein) represented the judge’s wife, but the judge refused to recuse himself. Welcome to Hayneville, Alabama. The case eventually settled for an undisclosed sum.

Full disclosure: I represented General Motors in a variety of cases, including work on the civil contempt case against James Butler (In re General Motors Corp.), which resulted in a $190,541 fine on Butler, made so high, according to the Court, by Butler’s “Stalingrad defense” tactics. (The opinion is useful for nostalgia reasons, too: remember when one could retain a premier law firm partner for only $220 to $425/hour?) I was not one of the lawyers Butler accused of perjury.

Jim Butler wins $105M verdict in Chrysler seat litigation is a post from Overlawyered - Chronicling the high cost of our legal system