We frequently hear from plaintiffs’ attorneys that we don’t have the courage to print their side of the story; somehow, we always do. The latest challenge to our “moral fortitude” comes from Roger S. Braugh, who objects to our post on the Rose Marie Munoz case, where a woman who didn’t wear a seatbelt received a $29 million verdict in a failure-to-warn case where a recall notice had been issued. We’ve posted the full comment and my full response at the original post; a lengthy partial point-by-point rebuttal is after the jump here. In addition, Brough has offered to answer questions about the case; I’ve posted a preliminary list.
Brough’s complaint about those “spending millions of dollars” on tort reform is ironic; he is allegedly a member of what a community paper calls Mikal Watts’s “Millionaire Lawyers Club” that allegedly handpicks judges and influences elections on the 148th District Court in Corpus Christi. 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 criticisms, with Brough’s comments in italics, and mine in roman text:
(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.
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) 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.
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) 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.
That other injuries have occurred while wearing a seatbelt is hardly evidence that an expert opinion regarding 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 was in fact informed that Ms. Munoz was ejected from the vehicle, and Ford’s lawyers hammered that issue throughout trial.
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) 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.
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) 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.
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) 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.
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) 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.
Here, Mr. Brough simply repeats an argument I refute 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) 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.?
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. If Brough wishes to provide us with the settlement correspondence sent to Firestone and the transcript of the closing argument, we’ll be happy to compare the two figures.
(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.
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, not least because of what the jurors told the press. 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) 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.
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?
Brough offered to answer any questions I have about the case. I have several. Perhaps readers can think of others, and maybe he’ll respond in the comments.
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?