Posts Tagged ‘product liability’

Goodyear v. Kirby

19-year-old Sidney Odom happily went along when 20-year-old Travis Kirby and 18-year-old Riley Strickland asked “Who wants to go to the Beacon?”—a bar in Terry, Mississippi. A long night of drinking and driving came to an end at about 3 am when Kirby’s Camaro hit a tree at about 90 mph. As none of the three were wearing seatbelts, all were ejected from the vehicle. Kirby, whose blood-alcohol level was three times the legal limit at 0.25%, died at the scene; the other two were injured.

Since we’re talking about the case, you can guess that the three blamed everyone except the underage drunk drivers: in this case, the car seller, the tire installer, and the tire manufacturer, Goodyear Tires. The car seller settled for about half a million dollars; a Copiah County jury found the other defendants liable for an additional $2.1 million. Goodyear appealed, complaining about various prejudicial statements made by the plaintiffs’ attorneys, such as introducing evidence from other lawsuits about other types of tires, but the Mississippi state appellate court affirmed. (Holbrook Mohr, “Miss. court agrees tire, not alcohol caused crash”, AP/Washington Post, Apr. 22; Goodyear Tire & Rubber Co. v. Kirby (Miss. App. 2009)).

Wrong hair color ruined her social life

A judge has dismissed a lawsuit filed by a Stratford, Connecticut woman against the cosmetics firm L’Oreal, saying she hadn’t proven her contention that the company had put dark brown dye in a box labeled as blonde. “I can never go back to my natural blonde hair,” complained Charlotte Feeney, who said that she ended up going on medications for depression as well as wearing hats. “I feel fake about that. Also blondes do get more attention than brunettes, of course, emotionally, I miss that.” (Daniel Tepfer, “Woman sues over wrong hair color”, Connecticut Post, Oct. 7)(via ABA Journal).

Mirapex jackpot justice – literally

Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).

“Is Big Caffeine the Next Target?”

Tim Sandefur asks this only half-facetiously as he reviews mass torts. Of course, as a must-read comment letter to FASB (via the indispensable Beck/Herrmann) submitted by six pharmaceutical companies notes, “A mass tort occurs when the plaintiffs’ bar decides to invest in it.”

Meter maid’s miracle recovery no bar to $1.6 million award

When meter maid Mercy Zamora’s cart crashed, she was injured — with such serious and permanent injuries, testified her husband, that she could no longer engage in strenuous or demanding physical activities. Then a defense lawyer introduced a photo showing Zamora with arms thrown over her head in triumph after completing a 10-kilometer race. If you think that spelled an ignominious end to the case, you must be a new reader here: the jury nonetheless “awarded about $1.6 million against Cushman Inc., maker of the cart Zamora was driving, and employer city of San Francisco, which had already settled out.” (Scott Graham, CalLaw “Legal Pad”, Jul. 22; CJAC, Jul. 24).

Flax v. Chrysler, one more thought

As Michael Krauss notes, an AP story today rehashes the details of last week’s Flax v. Chrysler case, though it falsely treats Paul Sheridan as a credible witness and doesn’t acknowledge most of Chrysler’s arguments.

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.

Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler

Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:

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.

Rolando Montez’s fatal phone call: JCW Electronics, Inc. v. Garza

On November 14, 1999, high-school dropout Rolando Domingo Montez, celebrating his 19th birthday, was arrested for public intoxication and trespass after the owner of the boat on which he and his friends were sitting complained. Police placed him in Cell No. 1 of the Port Isabel City Jail. The next morning, Montez was permitted to make some collect calls from his jail cell to seek bail money from his mother, Pearl Iris Garza. Mom, complaining that Montez was in jail again, refused. But she generously came to pick up Montez on the 16th when he was released on his own recognizance. Unfortunately, while Garza was waiting in the lobby, and while police were responding to a call for assistance regarding a suspicious vehicle, Montez hung himself with the 19-inch phone cord from the phone he had used to make the calls.

Read On…

Suit: it’s the manufacturer’s fault that I backed a lawn mower over my son

The manual for the L120 John Deere mower reads:


· Do not mow when children or others are around.

· Do not mow in reverse.

· Look down and behind before and while backing.

· Never carry children even with blades off.

Read On…