As readers of Overlawyered know, the Tennessee Supreme Court reinstated $13.3 million of punitive damages over a good-faith dispute over a van’s seat back design (in an accident caused by a drunk driver), giving no credit to the fact that the design in question was safer than federal safety standards, or to 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. As I described the case back then:

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.

(h/t Cutting)

SCOTUS refuses to review Flax punitive damages is a post from Overlawyered - Chronicling the high cost of our legal system

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

• More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and — quite a jump here — concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they’re not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board’s concerted recent effort to get tough on doctors — too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do — submit to stricter oversight in exchange for liability reform — and now that very submission was being cited as if it proved that standards of care were slipping.
• Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]
• The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there’s no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.
• Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, “a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful.” (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side’s fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at “advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs”. In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel’s Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)

Stories that shouldn’t get away, part I is a post from Overlawyered - Chronicling the high cost of our legal system

In other rigid v. yielding seatback lawsuit news, the Illinois Court of Appeals released on the web the Mikolajczyk v. Ford Motor Co. opinion for the case we discussed Dec. 1, 2006 and March 21, 2005. The same issues apply in that case, except there, the accident was caused by a drunk driver plowing into the back of a stopped car at over 60 mph.

Potter v. Ford Motor is a post from Overlawyered - Chronicling the high cost of our legal system

* Remember Shannon Peterson, the Denver condo owner who got sued by a neighbor who complained that she was taking baths too early? (Feb. 27). The case is still dragging on the better part of a year later, a judge having refused so far to throw it out. David Giacalone has the details (Nov. 30).

* Glamourpuss lawsuit-chaser Erin Brockovich, fresh from the humiliating dismissal (Nov. 18) of suits she fronted against California hospitals alleging Medicare overbilling, has been rebuffed in another high-profile case. This time a judge has dismissed twelve lawsuits brought by her law firm of Masry & Vititoe alleging that exposure to oil rigs at Beverly Hills High School caused cancer among students there (Martha Groves and Jessica Garrison, “School oil-rig lawsuits dismissed”, Los Angeles Times, Nov. 23) (via Nordberg who got it from Legal Reader). For more on the case, see Jul. 15 and Nov. 19, 2003, and Mar. 16, 2004. The New Republic has marked the occasion by reprinting its revealing 2003 article on the affair by Eric Umansky. P.S. More from Umansky, who has his own blog, here.

* Reader E.B. writes in to say:

Remember the group of parents (Oct. 23) who threatened litigation over their daughters’ playing time on the girl’s basketball team? The ones who demanded a six-person panel to oversee the selection of the players?

None of the parents’ daughters made the team. And they’re not happy about it. See C.W. Nevius, “Castro Valley hoops coach can’t win”, San Francisco Chronicle, Nov. 30.

* A court has dismissed the action (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, 2006) by fair housing activists against Craigslist over user ads that expressed improper preferences or mentioned forbidden categories in soliciting tenants, apartment-sharers and so forth. (Anne Broache, “Craigslist wins housing ad dispute”, CNet, Nov. 17). However, blawger David Fish says the court’s reasoning was highly unfavorable to many other Internet companies generally, and may expose them to future liabilities (Nov. 15). Craigslist now has an elaborate page warning users that it is unlawful for them to post preferences, etc. in most situations not involving shared living space. Update: David Fish’s name corrected, apologies for earlier error.

* 3 pm update to the updates from Ted: “An Illinois intermediate appellate court overturned the $27 million verdict in Mikolajczyk v. Ford (which we reported on last year), ordering the lower court to replace the arbitrary jury verdict with a lower arbitrary number. Why the jury’s damage award is considered the product of passion and prejudice, but the same jury’s liability award is kosher, remains unclear. (Steve Patterson, “Court says $27 million crash award too much”, Chicago Sun-Times, Nov. 23).”

Updates is a post from Overlawyered - Chronicling the high cost of our legal system

Lawyers Weekly USA has more details about the trial, including the fact that the jury wasn’t allowed to hear that, with 7.1 million vehicles on the road, there were only three deaths from collapsing seatbacks. Moreover, the judge permitted plaintiffs to argue liability based on a post-sale duty to warn of (allegedly) improved technology, unprecedented in Tennessee and most other states: thus, according to plaintiffs, when Chrysler merged with Mercedes, Chrysler had a legal duty to inform every single one of its car owners of any safety features on Mercedes vehicles that weren’t on Chrysler vehicles (and, one would imagine, vice versa). How this would have prevented a pick-up truck from slamming into the rear of a minivan at twice the speed limit, one wonders, but too many judges have stopped requiring causation to be an element of a tort. (Reni Gertner, “Parents Of Baby Killed In Seatback Collapse Win $105.5M”, Lawyers Weekly USA, Jan. 2005).

Update: Joshua Flax v. Chrysler seat back case is a post from Overlawyered - Chronicling the high cost of our legal system

Bruce Pfaff, Mikolajczyk’s attorney, previously won a similar seat-back case from an Indiana accident where a cocaine-and-PCP-impaired driver, Kevin Gaczkowski, rear-ended and paralyzed the plaintiff, Lydia Carillo. Ford was found 30% liable (in part because the jury wasn’t told of Gaczkowski’s condition), and paid 100% of the $14.5 million verdict. Carillo v. Ford (Ill. App. 2001). In Carillo, a jury was told to decide whether a vehicle was unreasonably dangerous, but Ford wasn’t allowed to show the jury statistics on how the seatbacks performed in rear-impact collisions (even as the plaintff introduced anecdotal testimony from other paraplegics), or introduce testimony showing that the plaintiffs’ preferred seat-design would have also caused injury. It’s ludicrous enough to have a jury second-guess design decisions as part of a particular case without being forced to be consistent with other juries second-guessing how those same design decisions are operating in other circumstances. But it’s truly absurd to have a jury do this without access to the data of the costs and benefits, thus making the trial purely a game-show over the persuasiveness of hired experts.

Mikolajczyk v. Ford and Mazda: $27 million in Escort seat litigation is a post from Overlawyered - Chronicling the high cost of our legal system

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).

Coincidentally, a pre-verdict November 2004 press release from the Insurance Institute for Highway Safety, otherwise critical of the auto industry, notes that a seat “has to be designed so it doesn’t rotate backward in a rear impact because this would move the head restraint away from the head. At the same time, a vehicle seat cannot be too stiff. It has to ‘give’ so an occupant will sink into it, moving the head closer to the restraint.”

Interestingly, the star witness in the Flax case is a former Chrysler middle manager, Paul Sheridan, who, though an MBA rather than an engineer, has made a career testifying that Chrysler’s air bags, seat belts, liftgate latches, doors, brake-shift interlocks, fuel systems, and now seatbacks are not safe. Chrysler fired and sued Sheridan for leaking documents, and Sheridan countersued Chrysler under whistleblower laws, but his case in Michigan state court was dismissed. (Chrysler Corp. v. Sheridan (Mich. App. 2003); Bill Vlasic, “Safety Firebrand Refuses to Relent”, Detroit News, July 13, 2003, part 2, and part 3). In an earlier federal seatback case, Sheridan’s “anecdotal, tangential, and equivocal” testimony was excluded on the grounds that he was “wholly unqualified” to testify on seatback design. Gardner v. Chrysler Corp. (10th Cir. 1996). As if to demonstrate the elaborate choreography plaintiffs use in these cases, another Flax witness, Ken Saczalski, also testified in Gardner, where a jury found for Chrysler in an accident where an unseat-belted plaintiff tried to blame her injuries on an allegedly defective seatback. Saczalski argues that seatbacks should be 17 times stronger than the minimum federal safety standard, as opposed to the 2-3 times stronger they generally are today.

Update: Joshua Flax/Chrysler verdict is a post from Overlawyered - Chronicling the high cost of our legal system