Update: Sudden acceleration: litigation springs eternal

by Ted Frank on December 20, 2006

In 1995, 70-year old Marlene Fett pressed the wrong pedal on her Lincoln Town Car, and smashed into a carousel in front of an Arkansas Wal-Mart, killing one boy and severely injuring his brother. The Chapman family settled with Fett, and blamed Wal-Mart and Ford, Wal-Mart on a theory that it should have anticipated the possibility of a car hitting a merry-go-round at 30 mph, and Ford on that old plaintiffs’ lawyer claim of “sudden acceleration,” a “defect” that somehow is six times more likely to strike elderly drivers. The case made the front page of USA Today in 2004 (resulting in an Apr. 19, 2004 Overlawyered story), though the newspaper kindly noted the lack of science behind the claim:

Little Rock attorney Sandy McMath, who is representing the Chapmans, says the Town Car’s cruise control put Fett on a “rocket ship to Mars” after she pulled out of her parking place. He petitioned NHTSA to investigate what he says is a defect in Ford and Lincoln models’ cruise control that causes the accelerator to stick.

In a lengthy 1999 [sic] report denying McMath’s petition, NHTSA investigator Bob Young wrote that even if such an occurrence took place and didn’t leave evidence of a mechanical malfunction, the situation should be reproducible through in-vehicle and laboratory tests. None of NHTSA’s testing could do so.

The Wal-Mart theory was similarly bogus, and refuted when an expert demonstrated that the plaintiffs’ proposed safety measure wouldn’t have stopped the speeding car. (For Illinois’ take on premises liability for auto accidents: Jun. 23.) An Arkansas jury also rejected the claims, and, after years of litigation, now the Arkansas Supreme Court has affirmed that decision in a not-especially-interesting Dec. 14 opinion, Chapman v. Ford Motor Co. Wal-Mart and Ford are still out the hundreds of thousands of dollars they spent defending themselves in the lottery litigation, not to mention the cost of bad publicity from sudden acceleration claims and quacks like the Center for Auto Safety trumpeting a non-existent problem. Arkansas acquits itself better than a South Carolina federal court did in a story we covered Aug. 7.

{ 10 comments }

1 Justinian Lane 12.19.06 at 10:08 pm

This story reminds me of the South Park episode in which senior citizens revolted because the government tried to take their drivers’ licenses away.

If the claim that “sudden acceleration” is six times more likely to strike elderly drivers is true… well, what else needs to be said?

2 Amsterdamsky 12.20.06 at 1:09 pm

The South Park episode is called Grey Dawn. Too funny. I had a Datsun where the gas pedal cable literally froze in the down position on a very, very cold winder day. I did what any licensed driver would do and hit the brake immediately and stalled the car safely.

3 nevins 12.20.06 at 6:00 pm

Somehow the car knows when an elderly driver is in the front seat, because the rate of these reports increases 6 fold as compared with drivers under 50. Further, whenever a manufacturer has added an interlock requiring the driver’s foot to be on the brake to shift into gear, the rate of sudden acceleration would drop. Again confirming it ain’t the car, but the driver.

4 LAN3 12.20.06 at 6:41 pm

It would probably be worth Ford’s time, in future sudden-acceleration cases, to drive another nail in the coffin of the car’s-fault theory, by breaking down what cars the Sudden-acceleration claimants are driving; are they old or new cars, are they equipped with cruise control or the brake-to-shift-into-gear system above.

After all, hypothetically it’s possible that there are car-models that’re driven almost exclusively by senior citizens, because of some demographic concentration, but I don’t think it’s likely. Demonstrating to the contrary could help deter awards.

[I worked on an appeal of a sudden acceleration case where the jury bought the expert report of an unemployed motorcycle salesman who couldn't duplicate the alleged electromagnetic interference in five years of driving the car in question around gigantic electrical towers. When auto makers lose these cases, it's not because they're losing the scientific debate, it's because judges are allowing junk science in and excluding relevant evidence, and juries are letting sympathy override reason. -- TF]

5 cowpill 12.21.06 at 3:04 pm

Sudden accelration due to a cruise control failure is completely bogus. First off in all ford vehicles, the cruise control is turned off and the memory erased when the ignition is turned off. Furthermore, any input into the cruise control cannot be accomplished until 1. the cruise control is phyically turned on 2. there is no input from the brake light switch, 3. a speed of in excess of 30 miles an hour is acheived and verified by the vehicle computer. This is in the service manuals and in the programing code and can be replicated in any modern computer controlled vehicle. It reminds me when I was a kid and my great grand mother would sit at the light with one foot on the brake and one on the gas, smoking the tires off, then rocketing through the light like it was normal.

6 It's the car's fault! 12.21.06 at 5:32 pm

Here’s my favorite “sudden acceleration” story, one involving the self-proclaimed toughest sheriff in America and a Ford Crown Victoria. And, yep, he was fairly old at 72 when it happened.

“Sheriff faults car for his accident” (2005)
http://www.azcentral.com/news/columns/articles/0530ruelas30.html

7 J.T. Wenting 12.24.06 at 3:53 am

and that’s why there should be a looser pays all clause in which the claimant in litigation suits pays the full legal cost for the defendant if they don’t win.

Would deter the vast majority of cases like this by making the lottery a lot more dangerous to enter.

Doing away with juries in cases like this would also help a lot, as juries tend to look at them with personal benefit in mind and if they strike down a case they’ll have that much less chance of winning when they’re the ones sueing.

8 sandy mcmath 12.24.06 at 1:50 pm

Four years before these children were hurt Wal Mart’s architect determined there was a hazard AT THIS PARTICULAR STORE entryway of vehicles from its 500-car parking lot striking customers. He redesigned the storefront to include a line of steel and concrete stobs (bollards) to reduce this hazard. Yet Wal Mart then placed the little toddler’s merry-go-round just outside this protective barrier. The issue at trial was whether the bollards would have stopped or slowed the car, giving the parents time to shove the kids out of the way–as others did who saw it coming. A store surveillance videotape might have resolved the question, but it was destroyed by Wal-Mart’s store manager who claimed he didn’t view it. Regarding Ford, all of the witnesses who testified that their own cars had suddenly accelerated in the same manner as Mrs. Fett’s vehicle were young to middle aged. They inluded a Virginia State Trooper, an Ohio deparment store executive, a Dallas homemaker, a Secret Service agent, and a former courtesy chauffeur for Mrs. Henry Ford IV. It is simply not true that most such events occur to elderly drivers. Within the Lincoln Town Car and Crown Victoria lines this may be true, but Ford markets those models to seniors. This case was presided over by three trial judges, none of whom at any stage of the proceeding, which lasted 9 years, ever found that there was insufficient evidence of the defendants’ negligence to go to the jury. The Supreme Court twice heard the matter and at no time did any justice so opine. There was, in other words, ample evidence to bring the case against the corporate defendants and for Judge Cole to submit it to the jury. Other juries in other venues could have reached a different decision and that decision would likewise have been, in all likelihood, upheld. The 7th Amendment guarantees all persons, including all corporations, the right to trial by jury. We respect their decision. Thank you for permitting me to respond. Sincerely, Sandy McMath, Arkansas Bar No. 66049, 711 West 3d Street, Little Rock, AR 72201, 501-396-5414, sandymcmath@aol.com

9 Ted Frank 12.24.06 at 11:11 pm

Note McMath’s sleight of hand: he argues that “It is simply not true that most such events occur to elderly drivers.” But the claim is that elderly drivers are six times more likely than drivers under fifty to have sudden acceleration incidents, in other words that elderly drivers are disproportionately likely to have the “defect” occur to them, not that this small portion of the driving population are the majority of cases. This is precisely true, and true across all models, as NHTSA found when it studied the issue. (Short drivers are also more likely to be subject to the “defect,” though we at Overlawyered don’t know how tall Ms. Fett was.)

McMath was incapable of replicating the sudden acceleration or explaining the mechanism by which brakes cause a car to speed up when they’re pressed harder; the theory was junk science and never should have been permitted to go to a jury no matter how many witnesses McMath could find who also hit the wrong pedal and refused to acknowledge their error.

McMath’s comment about Wal-Mart is a nice example of how divorced modern legal deep-pocket thinking is from basic concepts of causation and justice. As for the substance of the comments, the Arkansas Supreme Court’s opinion (and explanation of the utter lack of qualifications of McMath’s expert to opine on the subject) is sufficient rebuttal.

McMath is correct that no Arkansas justice points out the utter lack of merit to his case against Ford in either of the two opinions. Of course, Ford was not a party to the first appeal before the Arkansas Supreme Court (where Chapman’s appeal was dismissed for lack of jurisdiction), and Ford was the appellee on the second appeal, and had no reason to raise the issue. But McMath is perhaps correct that “Other juries in other venues could have reached a different decision and that decision would likewise have been, in all likelihood, upheld.” This is precisely what we at Overlawyered are complaining about, and is just further evidence of the need for liability reform: McMath had positive expectation for bringing a bogus case, and just was unlucky that he wasn’t able to fool the jurors this particular time.

10 William Nuesslein 12.25.06 at 10:39 am

The engineering analyses of cowpill should have carried the day. It is likely that Sandy McMath actually sees the testimonials of sudden acceleration as equal to straight forward Science. Layatrill is the clasic example of the conflict between testimonials and sound science.

I had a girlfriend who graduated second in her class in College and actually founded some kind of logic club. I pointed out to her that there were 26 experiments that had null findings for vitamin C preventing cold. The 27th that did have a possitive outcome could not be replicated. Yet she continued to belive in vitamin C – and also sudden acceleration events. She could not distinguish between being mistaken and lying. The dentist who drove his car into his pool was a seemed to be an honest fellow.

When I suggested that the 16% grade of the hill was insufficient to causes a lawn mover to roll over three times, the plantiff atorney countered by saying the grade was 11%. (Good Grief.) Somebody else said that weelies would provide anough torque. The torque for a weelie is provided by the rider lifting up the front of the morotcycle.

Happy Holidays to all!

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