His affluent parents bear the other 70 percent of the fault, a Cincinnati jury decided, as they awarded $10 million to victim Casey Hilmer and her family. Ben White was just 11 days short of his 18th birthday when he savagely stabbed the girl in an unprovoked assault; he was later sentenced to 10 years for attempted murder. You’d think for White’s parents to be more than twice as much at fault in the outrage as he was — 70 percent compared with 30 percent — they must be quite the monstrous couple. Curiously, though, the jury foreman said of Lance and Diane White afterward that they had “no intent” to harm and that he didn’t think they showed “ill will” or “conscious disregard for somebody”: “I’m not saying they’re bad parents”. The plaintiff’s lawyer was Stanley Chesley, who will be familiar to many of our readers. (Sharon Coolidge, “Parents must pay $7M”, Cincinnati Enquirer, Aug. 20; Tony Cook and Jeanne Houck, “Stabbed girl wins $10M judgment”, Cincinnati Post, Aug. 20).
Drunk driver William Timberlake, speeding at 60 mph, rear-ended the Ford Escort in which 46-year-old James Mikolajczyk was stopped at an intersection. Only 3% of fatalities occur in rear-end collisions, so Ford, like most car companies, designs its seat-backs to meet federal safety standards and provide additional protection in other types of collisions–with the unfortunate and unavoidable trade-off that the seat will not perform as well in a rear-end collision. Mikolajczyk’s ten-year-old daughter survived, but Mikolajczyk’s seat collapsed, his head hit the rear of the passenger compartment, and he never regained consciousness before dying three days later. A Cook County jury deliberated all of three hours before finding Ford 40% responsible. And because Ford was found more than 25% responsible, it is on the hook for the entire $27 million award, including $25 million in non-economic damages. Timberlake is in prison. Only the specialty legal press raised the issue of joint and several liability; the mainstream press didn’t even mention the 40/60 split in comparative fault. (Bill Myers, “$27 million verdict in fatal accident”, Chicago Daily Law Bulletin, Mar. 16 (via ICJL); Steve Patterson, “Ford, Mazda ordered to pay $27 million in death”, Chicago Sun-Times, Mar. 17; Chris Hack, “Carmakers to pay in SE Side crash”, Daily Southtown News, Mar. 17; Rafael Romo, “Jury Awards Millions In Fatal Crash Caused By Deffective [sic] Seat”, WBBM-2, Mar. 17; Mikolajczyk v. Ford Motor Co., No. 00 L 3342 (Cook County, Ill.)). More seat-back litigation coverage on this site: Dec. 21; Nov. 24.
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.
DaimlerChrysler statement on the suit after the jump; it’s almost scandalous what the press accounts (Feb. 26)left out, but not as scandalous as the verdict. The unbelted Vickie Mohr was killed from blunt force trauma to the back of the head–caused when she was hit by the 245-pound unbelted passenger in the backseat. (The jury found that passenger, Carolyn Jones, responsible for only a small percentage.) Brett McAfee, the 17-year-old driver who killed the two plaintiffs when he fell asleep at the wheel going 45 mph, but was found slightly less than half-responsible by the civil jury, pleaded no contest to vehicular homicide criminal charges. (via Dodgeforum, which has an impressive array of photos of the totalled Durango Caravan).
I’ve got an op-ed in today’s New York Times criticizing the new Gotham law, signed by Mayor Bloomberg last month, which presumes to impose liability for street crime on gun manufacturers and dealers unless they adopt a strict “code of conduct” for their sales nationwide, not just in New York City. I note that it will add impetus to the drive in Congress for a law pre-empting abusive gun lawsuits. The new law “insults the right to democratic self-governance of the 273 million Americans who don’t live in New York City. …The mayor and City Council of New York seem to think they can make laws that bind the rest of the country. That’s an arrogant stance — and when the rest of the country is heard from, it’s apt to be a losing stance as well.” The piece is part of the Times’s new geographically zoned Sunday op-ed program and ran in city but not suburban editions of the paper. (Walter Olson, “The wrong target”, New York Times, Feb. 6). For the other side, here’s the press release and bill description from the measure’s sponsor, Councilman David Yassky, the city council’s press release (PDF), and the bill text. (bumped Sun. evening 2/6) Update Feb. 20: Yassky responds.
We previously reported (Jan. 21) on Daniel Lanzaro’s drunk driving accident litigation; the little girl he paralyzed won a $105 million verdict against Aramark over beer sales at Giants Stadium because Lanzaro did some of his drinking there that day, in part by bribing a beer vendor to ignore Aramark’s two-beer-per-purchase rules. (Before the game, Lanzaro purchased a six-pack of Heineken; he did some drinking at two strip-clubs after the game, as well.) The New Jersey Law Journal has more on the case:
- The NFL defendants settled for $700,000, despite prevailing on a summary judgment motion;
- Judge Richard Donohue excluded evidence that Antonia Verni’s father might have prevented the injuries to his daughter had he put the two-year-old in a car seat rather than an adult seat-belt;
- Verni also sued Toyota; Verni’s Corolla didn’t fare well when Lanzaro’s pickup slammed into it head-on, and Toyota paid $190,000 to get out of the case;
- There’s collateral litigation to be had among plaintiffs’ family members and sets of lawyers over who gets the money. And, of course, there will be an appeal.
As previously reported, the judge also excluded evidence of Lanzaro’s two previous drunk-driving arrests. (Henry Gottlieb, “In Wake of Record $105M Verdict, Fee Fights and Coverage Contests Emerge”, Feb. 2; Wayne Coffey, “Wasted Innocence”, NY Daily News, Jan. 30; Kibret Markos, “Expert backs beer vendor”, The Record, Jan. 12). As famous sportswriter/treacle-author Mitch Albom notes, “Either your stadium goes dry, or people will leave drunk.”
A correction: we previously reported that the entire $135 million verdict was awarded against Aramark; in fact, $30 million of the verdict is damages against the drunk driver, Daniel Lanzaro, who had already settled for the limits of his insurance coverage. Aramark’s share is $30 million compensatory, $75 million punitive, and about $6-7 million in interest, with the interest continuing to accumulate. After he settled with the plaintiffs, Lanzaro changed his story to be more favorable to the Vernis’ case. (Ana M. Alaya, “Lawyer for Giants Stadium beer vendor loses bid for mistrial”, Newark Star-Ledger, Jan. 13).
An additional thought: A big argument for plaintiffs at trial was the claim that Aramark, which serves to the two million or so fans who attend football games at Giants stadium each year, had been averaging about seven complaints a year for selling beer to drunks, but only took disciplinary action a fraction of the time. The press hasn’t covered Aramark’s response to this assertion, but one wonders if fear of employment litigation stayed its hand. Earlier damned-if-you, damned-if-you-don’t files include Aug. 30.
Another point: A reader writes to note that Aramark was probably selling watered-down beer, which would be further evidence that post-game drinking was responsible for Lanzaro’s .266 blood-alcohol level, though, again, it shouldn’t matter: Aramark didn’t make the guy drive drunk.
Servers at Giants Stadium in northern New Jersey sold beer to a highly intoxicated patron, so a jury has ordered Aramark, the beer concessionaire, to pay $30 million in compensatory and $75 million in punitive damages to pay for the later acts of the drunkard, who after leaving the game drove off into a catastrophic accident. (Ana M. Alaya, “Jury adds $75 million penalty for beer seller”, Newark Star-Ledger, Jan. 20; David Voreacos, “Aramark loses big in lawsuit”, Bloomberg/Philadelphia Inquirer, Jan. 20). The plaintiff’s lawyer in the case (see Oct. 10, 2003) had asked for damages against the National Football League and the Giants as well, but according to KipEsquire (Jan. 20) those claims were dismissed, or else the award might have been really big. Correction: the jury’s compensatory verdict was split $30 million against Aramark and $30 million against the drunk driver; we originally reported that the entire award was against Aramark, but have fixed the references above.
More: New Jersey Law Journal, Jan. 21, reports that the NFL and Giants paid an undisclosed settlement to be let out of the case, though they also prevailed on a summary judgment motion; and it turns out that Daniel Lanzaro of Cresskill, N.J., the drunk driver, drank at a club with friends after leaving the stadium but before getting into the crash. Yet more: AP adds that “The NFL forbids beer sales after the third quarter, and the Giants close beer concessions at the start of the third quarter. The stadium also mandates that fans can buy only two beers at a time, but the Vernis’ lawyers contend that Lanzaro sidestepped that rule by giving the vendor a $10 tip and was allowed to buy six beers.” And according to the New York Post, “Giants Stadium officials intend to aggressively monitor tailgating and drinking” (emphasis added) in the aftermath of the verdict. Update: Feb. 2.
74-year-old Irving Rosenberg forgot that movies at the Tamarac discount movie theater were $3 on Friday nights rather than $2. Behind him in line, Yvonne Schuss impatiently kibitzed, words were exchanged, and Yvonne’s 68-year-old (and legally blind) husband Seymour interceded. In the resulting one-punch brawl, Mr. Rosenberg was knocked to the ground, lapsed into a coma, and died sixteen days later. (Mr. Schuss’s manslaughter trial ended in a mistrial this month.)
Naturally, the party to sue is the West Broward County theater, for failing to provide adequate security in the event of a retiree riot–Mr. Rosenberg’s lawyer, Michael Sobel, feels the omission is so egregious that he is seeking punitive damages. Mr. Sobel also blames the theater for failing to open the box office for 7 pm movies until 6:30, which he believes led to the frayed tempers. (Jon Burstein, “Tamarac movie theater sued for not hiring security to control unruly retirees”, South Florida Sun-Sentinel, Feb. 23; “Mistrial declared in senior’s ticket-line manslaughter trial”, CourtTV, Feb. 7).
Archived entries before July 2003 can be found here, where the following brief essay originally appeared:
The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.
To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).
Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.
The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (“Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.
In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.
Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (“‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (“Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (“It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).
On the Ford Pinto case, the best resource is
unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ‘smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”
In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.
In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.