(Post updated on Jan. 30 to reflect confirmation that Munoz was a passenger.)
Here’s a case that could almost serve as a “spot-the-issues” model question for a law-school exam on the need for litigation reform. Rose Marie Munoz wasn’t wearing her seatbelt in 2002 when the spare tire on the 1992 Mazda Navajo (a rebadged Ford Explorer) failed and driver Derek Saenz rolled over the SUV; the other three occupants of the vehicle were uninjured. Munoz was ejected and temporarily paralyzed, has lost use of her right hand, and now walks with a limp. A Nueces County, Texas jury held Ford 75% (and Mazda another 10%) responsible for $29 million in damages, on the grounds that Ford should have done more to warn consumers about the dangers of ten-year-old tires—even though the tires in question were the notorious Bridgestone/Firestone tires that had actually been recalled in 2000, but had been left on the SUV. Jurors said they were influenced by the fact that Ford has since added a warning in their owners’ manual about replacing tires more than six years old. Firestone settled the case, allowing the plaintiffs to focus blame on Ford at trial. Ford blames the accident on driver error, and will appeal. (Sean M. Wood, “Ford hit with big judgment in Nueces”, San Antonio Express-News, Jan. 28; Karen Lundegaard, “Texas Jury Slaps Ford With $29 Million Verdict”, Wall Street Journal, Jan. 27; AP, Jan. 27; plaintiffs’ lawyer press release).
Sample model answer to the spot-the-issues question after the jump. No press story mentions all of these factors, and many went unmentioned entirely.
(Update, Feb. 16: Plaintiffs’ attorney Roger Brough has an extensive discussion in the comments, to which I respond in detail. With one minor detail after the jump, I stand by my description of the case. It’s hard to follow the back-and-forth in the comments, but there is a post that combines his comments and my responses in direct point-counterpoint.)
1. Failure to wear seatbelt cause of the injuries, but not allowed to be considered as negligence, much less as an absolute bar to recovery. The jury didn’t even learn that the seatbelt wasn’t worn.
2 & 3. Apparently the jury believed that a second recall notice would’ve gotten the car-owner to replace her tires when the first one didn’t, once again demonstrating the absolute omission of “causation” as a concept in modern tort litigation, as well as the intellectual bankruptcy of the “failure to warn” cause of action.
4. Who says that the tort system doesn’t punish safety innovation? Ford’s new safety manual was used against it.
5. Needless to say, the $29 million award is absurd.
6. Plaintiffs allowed to propound multiple theories of causation as necessary to extract double recovery from multiple defendants without consequence at trial, when jury never hears that the plaintiffs used to claim that the third-party settling defendant was responsible.
7. 20/20 hindsight: plaintiff makes bogus cost-benefit claim that a “$142 fix” would’ve prevented the accident without mentioning the fact that implementing all conceivable “$142 fixes” add up to a vehicle at least twice as expensive.
8. Locally-elected judge deciding case between local plaintiff and out-of-state defendant in judicial hellhole.
9. Any others? Discuss in the comments.
(Update, Feb. 16: Texas law permits non-settling defendants to reduce their judgment by the payment by settling defendants, so the mention of “double” recovery in ¶ 6 above was incorrect. I stand by my description of the case in the other particulars.)
8 Comments
The jury wasn’t told that Munoz wasn’t wearing a seat belt? I can’t imagine that Ford’s defense team would have neglected to bring that up. I can only assume that the court did not allow the fact to be introduced into evidence. On what basis could the court have decided such?
The jury was not told that Munoz didn’t wear a seatbelt because evidence of seatbelt use/non-use is inadmissible in TX.
Something the defense bar has been baffled over for yrs, but has never been legislatively corrected, even though virtually every other fact relating to a traffic accident is admissible (e.g., BAC, exceeding speed limit, improper direction on a one-way road, etc.)
Also not mentioned was the fact that the owner actually did receive the recall notice and did bring the vehicle to a Firestone dealer to have the tires replaced. According to the owner the Firestone dealer refused to replace the spare tire under the recall..
I am one of the lawyers who represented Mrs. Munoz, and would be pleased to answer any questions you may have regarding the case. If you are to be critical of a jury verdict such as this, you might want to have all the true facts before crying foul. Here they are, and if you want proof, please let me know.
(1) Ms. Munoz was a rear seat passenger, not required by law to wear a seatbelt, and the case predated 2003 changes in Texas law, which now makes seatbelt use admissible in such cases.
(2) Ford/Mazda did not allege that Ms. Munoz was negligent or did anything wrong that caused her injury. In a court of law, you have to file pleadings asserting who was at fault, and failing that, you can’t just make it up as you go along. The belt use issue was not even pled by Ford.
(3) Too late in the case, Ford hired an “expert” who it had paid literally tens of millions of dollars to over the past two decades to say that if Ms. Munoz would have had her seatbelt on, her injury would not have occurred. This same expert has given no less that 10 contradictory opinions, under oath, in the past two years alone where belted occupants receive fatal or paralyzing injuries in a Ford vehicle rollover. In those cases, his testimony has been that stuff like this just happens, regardless of belt use, in dynamic rollovers.
(4) The jury was in fact informed that Ms. Munoz was ejected from the vehicle, and Ford’s lawyers hammered that issue throughout trial.
(5) Ford’s position that it took publicly after the verdict that the accident was caused by “driver error” is a farse. Ford’s own experts, corporate representatives, and lawyers at trial all admitted and TOLD THE JURY NOT TO BLAME THE DRIVER.
(6) Referring to Ms. Munoz’s injury as “limp” is insulting, ignorant, or worse yet, absolutely false and misleading. Ford, Mazda and Firestone all agreed that she had a greivious injury. For example, Ford’s own experts put her in a wheelchair by age 50. She was incontinent of bowel and bladder. She was a quadriplegic, for heaven’s sake. That she remains capable for a number of years between now and age 50 to walk by dragging her right side is a testament to her efforts at rehab and unwillingness to quit. Your attempts to diminish her injuries are completely at odds with even Ford and Mazda, not to mention the truth.
(7) Yes, Firestone settled and Ford could have too, before trial. Instead, Ford chose to take a risk of loss, offering $0 to this young woman, who had over $2,500,0000 in medical expenses alone. We can’t make a defendant do the right thing. We demanded a very reasonable amount in settlement and had $0 offered. By getting a sizeable verdict, maybe Ford and Mazda will do the right thing now. Of course, because we were forced to trial, we had to spend over $300,000 to prepare and try the case to verdict, so the process is exceedingly costly and not ideal for any party.
(8) The case was not decided “against Ford and Mazda” solely on the basis of the tire aging theory. The case was decided on a number of factors, many of which you fail to mention: (a) hundreds of internal Ford documents showing that engineers at Ford had warned management of the problems with the Ford Explorer and why it was going out of control from tire failure events, but management decided to conceal this fact from the American public and let hundreds die instead of fixing the problem; (b) the jury was shown evidence that Ford actually heavily participated in the design of this recalled tire (Firestone made the same tires for GM and Toyota, which were not recalled)-only the Ford specification was recalled; (c) the tire had a manufacturing and design defect that Ford failed to inspect for/notice when mounting the tire at the assembly plant—Ford admitted these defects; and (d) Ford has known for years about the hazards of tire aging but provides the consumer with no information about that hazard, not even how to tell the age of a tire.
(9) Your claim that we settled with Firestone and then got to somehow only blame Ford and hid the fact that we blamed Firestone is absurd, false, and just plain stupid. We did blame Firestone, and so did Ford and Mazda, and the law allows that, especially against a settling defendant such as Firestone. That is why the jury charge asked the jury to find defects in the tire. That is why the jury charge asked the jury to apportion fault between Ford, Firestone, Mazda, and the driver. Do the truth and facts matter in your perfect political ideology that all lawsuits are bad and if won, were cheated, wrong, misguided, etc.?
(10) Ford’s owner’s manuals were not used against Ford somehow improperly. Ford lied to the jury, and we are allowed to prove it, just like Ford would be allowed to prove the jury if we lie in trial. Ford and its experts stated UNDER OATH that tire aging was not a safety issue that can cause tire failures, or even be remotely hazardous to a user. According to Ford and its experts, you can use a tire that is 25 years old without any problems. But if you look at Ford’s 2005 tire safety section on the Ford website and certain 2006 owner’s manuals, Ford warns that tire aging is in fact a safety hazard and to not use tires that are more than 6 years old. The system would certainly be broken if we were not allowed to prove that someone is lying under oath in a court of law.
(11) As to the recall notice issue, this vehicle was purchased used by Derek Saenz and his father. Saenz graduated with high honors and was a good, smart kid. They were not sent a recall notice, but heard about the recall and took the vehicle in during the recall just to be safe. Two tires were replaced, but the tire store missed the spare tire and thought it was not recalled. This was typical of the early, confused days of the recall. Many spare tires were not replaced or even checked due to tire shortages as well. Moreover, Mazda claimed it did send a recall notice to the Saenz, but the recall notice was wrong-it did not recall the spare tire. So, if the Mazda recall actually got to the Saenz, it would have advised them to keep the bad tire. There was no allegation of a need for a second recall letter.
(12) Your allegation that Plaintiff was allowed “double recoveries” is absolutely false. Under Texas law, as well as all other states I am aware of, double recovery is not allowed. For example, the defendants are given a credit against the judgment for the amount Firestone paid, and also typically only have to pay their assigned percentage of the reduced judgment. So it is the defendants who typically pay even less than their assigned share of the judgment due to the double dipping of settlement credit and apportionment of fault. For example, even if the entire judgment were upheld on appeal, Ms. Munoz would never receive the entire judgment since Mazda will always pay merely 10% of the judgment left after reducing it by what Firestone already paid.
These facts may not fit with your politics or beliefs about lawsuits, but they are true and you can verify them. If you are wondering how the facts could have become so distorted, ask yourself who is spending millions of dollars a year to create a perception of some lawsuit crisis, broken system, and runaway juries. Use your brain—there is always more to the story.
I hope you have moral fortitude to post this.
Sincerely,
Roger S. Braugh, Jr.
Brough’s complaint about “spending millions of dollars” on tort reform is ironic; he is allegedly a member of Mikal Watts’s “Millionaire Lawyers Club” that allegedly handpicks judges and influences elections on the 148th District Court in Nueces County, where this case was tried. But given that a runaway plaintiffs’ bar is costing the American economy hundreds of billions of dollars a year, it’s unsurprising that some of the victims of that problem seek to fix it. But the plaintiffs’ bar outspends reformers by a 3-1 ratio.
Point by point to the underlying case:
1) Whether Munoz is required by law to wear a seatbelt is irrelevant to her negligence in failing to wear one. It is unjust to judge the design of the safety of a vehicle and its components when the safety gear of the vehicle is left unused.
2) The law does not allow Ford to allege Munoz was negligent for her failure to wear a seatbelt. To blame Ford for being subject to an unjust law is adding insult to injury.
3) That other injuries have occurred while wearing a seatbelt is hardly evidence that an expert opinion that the failure to wear a seatbelt here is “contradictory” or “wrong.” Especially in a case where none of the other passengers are injured. The proximate cause of Munoz’s injuries was her failure to wear a seatbelt.
4) The jury instructions did not permit the jury to consider Munoz’s fault for wearing a seatbelt. Ford may have attempted jury nullification, but one can hardly blame the jury for following the court’s instructions with a bad law.
5) I welcome Ford attorneys to write me and defend themselves here. All I know is what the press reports, and Mr. Brough’s other statements have sufficient inaccuracies that I’m more inclined to trust Ford’s press release than his characterization.
6) Interested readers can google for television footage of Munoz walking out of court after her verdict, which I did before writing about the case when press coverage differed as to the extent of Munoz’s injuries. “Limp” is certainly more accurate and less misleading than Mr. Brough’s use of the term “quadriplegic” without the additional qualifying adjective “incomplete.” Most lay readers think of a Christopher Reeve when they think of a quadriplegic, and that’s not Ms. Munoz’s fate. If my mistake was so egregious here, it’s curious that Brough buried it as his sixth point.
7) Why should Ford settle when they are not responsible for the accident? The idea that a civil defendant has only itself to blame when it insists on defending itself against improper accusations instead of settling for the plaintiffs’ demands and is then faced with a large verdict is a strange one that the plaintiffs’ bar pushes. We’ve seen it before in the McDonald’s coffee case. No one ever says that the allegedly-innocent death row prisoner should have plea bargained his way into a life sentence.
8) Here, Mr. Brough simply repeats the argument I refute above without any attempt to address what I said. Internal debates are not evidence of a cover-up, as we’ve discussed on this website on multiple occasions; if internal debates are used with 20/20 hindsight to punish defendants, then what is being deterred are internal debates, and we’re all much less safer as a result. I stand by my point.
9) Brough is being disingenuous if he is claiming that his trial strategy was precisely the same as it would have been if Firestone had refused to settle and had remained in the case as a genuine co-defendant. He may have “blamed” Firestone at trial for tactical reasons, but surely asked the jury to apportion a tiny percentage of fault to them–and I’m quite confident that that percentage was a smaller percentage than Brough threatened Firestone with during settlement discussions.
10) If the manuals were used as proper impeachment of directly contradictory testimony, that would be one thing, but I suspect that isn’t what happened. Regardless, Ford is in a no-win situation: if Ford believes after internal debate that it’s safe to use a spare tire for the lifetime of the vehicle, but plaintiffs persist in bringing litigation over the issue, Ford can either stand by its safety manual (and face punitive damages for recalcitrance because the internal debate is used against it), or change the safety manual in a surplus of caution and then have the manual used against it at trials. Either way, consumers are worse off.
11) Again, Brough is disingenuous. The main allegation was a “failure to warn.” Mazda did warn, and the complaint is that Mazda did not warn enough, and should have warned more. Warnings include additional recall notices. And why is it Ford’s fault that the tire store failed to replace a recalled tire, or that Mazda failed to adhere to Ford’s recall requests?
12) Mr. Brough is correct that there will be no double recovery in this case; I have retracted that minor mistake. But the fact remains that the settlement permitted Munoz to switch her theory of fault without penalty.
Brough has offered to answer questions. I have several, that I have posed to him:
1. Who was the judge on the case?
2. How much money did your law firm contribute to that judge’s election campaign?
3. How much money did the Watts Law Firm contribute to that judge’s election campaign?
4. If your theory of the case is that auto manufacturers fail to warn consumers of tire deterioration, and that all tires deteriorate, what relevance is it that Ford contributed to the design of the tire?
5. Why doesn’t the tire store’s failure to replace a recalled tire break the chain of causation? Are you claiming that Ford told the tire store not to replace the tire?
6. Were any of the other belted passengers in Saenz’s car injured? If not, how does an expert’s testimony that some belted passengers may be injured in a different rollover “contradict” his testimony that a belted passenger would not have been injured in this rollover and that Munoz’s injuries came from her ejection and failure to wear her belt?
7. Re #2 in your comments: is it your position that Ford should plead defenses that are explicitly barred by Texas state law? Or is it your position that there is a way to plead contributory negligence for failure to wear a seatbelt that complies with pre-2003 Texas law?
8. What percentage fault did the plaintiffs’ closing argument ask the jury to attribute to Firestone? What percentage fault did the plaintiffs threaten to attribute to Firestone if they failed to settle?
9. Were there any Texas citizen co-defendants? If so, who, and when (if ever) were they dismissed from the case? Did Ford attempt removal to federal court on grounds of fraudulent joinder? If so, did your firm seek remand?
10. Did any settlement communications with Ford or Firestone mention the propensity of Nueces County juries to award large verdicts?
11. Did any settlement communications with Ford or Firestone mention the propensity of local judges to favor plaintiffs’ firms that supported their election campaign?
12. What was the amount of the settlement demand made of Ford?
13. Did the plaintiffs make any motions to exclude evidence that were granted? If so, for what?
14. Did Ford make any motions to exclude evidence that were denied that resulted in the evidence being introduced into trial? If so, for what?
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