About auto litigation (1999)

by Walter Olson on June 14, 2003

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.

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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.

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