Rollover Economics II

by Ted Frank on January 10, 2007

Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.

I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn’t explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to “set the record straight,” Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.

To take a non-obvious one, Lane’s description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by “backfired”): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford’s objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane’s other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.

But let’s give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can’t bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.


1 Justinian Lane 01.10.07 at 7:05 pm

Glad you liked the graphics. The font isn’t Futura – it’s TW Cen MT, but they are very similar. I went with a san serif as I think it’s a little cleaner than a serif, and I envision this being printed on glossy. Any opinion on the quote boxes?

Not sure what you mean about the inaccuracy of the court’s description of the case: Both you and the court acknowledge she swerved to avoid a piece of metal, rolled over, and suffered serious injuries. That’s what I wrote.

My main criticism of your criticism of California’s evidentiary rules is that you completely ignored the fact the court found the evidence in question to be unreliable and misleading. It’s unreliability is a separate reason for the court to refuse its admission. Your paper doesn’t refute the court’s assertion that the evidence was unreliable and misleading – only that industry standards & custom evidence should be permitted to be introduced. I’m not sure I agree with that. Here’s why: You cite a bunch of statistics regarding the safety record of cars that competed with the Pinto. Isn’t it possible that they were all defective deathtraps?

By backfired, I mean Ford tried to introduce improper evidence, and it wasn’t admitted, thus undermining their legal strategy.

I’m glad that Ford got to introduce the evidence in Indiana. However, since criminal cases have a higher burden of proof, not too many conclusions can be drawn.

As for failing to address your arguments head-on? I would call quoting portions of your paper and then refuting them point by point “addressing them head on.”

You’re right, I did forget to link to your paper. I thank you for the courtesy of linking to my post, and I will edit my post to link to yours.

2 Ted 01.10.07 at 7:50 pm

1) That you pretend not to know what I meant about “the inaccuracy of the court’s description” is a wonderful illustration of my regular criticism of your debating style. It’s in the original paper (e.g., pp. 4-5), and the court’s disingenuous characterization of standard datasets as “misleading” is yet another example of the appellate court’s dishonesty. Worse, in an appalling double-standard, the court signed off on plaintiffs’ theory of the defect that was actually misleading. In short: the court admitted misleading evidence that helped plaintiffs, and rejected accurate evidence that demonstrated that the plaintiffs’ evidence was misleading; to add insult to injury, the court lied and called that evidence misleading. Your only justification for the court’s mischaracterizations is the tautological citation to the court’s decision.

2) You write: “By backfired, I mean Ford tried to introduce improper evidence, and it wasn’t admitted.” First, that’s not what “backfired” means. Second, the evidence isn’t “improper” for reasons I describe in the paper and that you ignore in your response. The majority of states admit this evidence; are they doing so improperly? If so, you give no reasoning for that conclusion, other than to cite to the California precedent that I criticized.

Such bootstrapped arguments and non sequiturs and mischaracterizations of my argument are not addressing my arguments head on.

3 Justinian Lane 01.10.07 at 9:04 pm

1: Ted, I’m sorry, but the argument you make in support of admitting Ford’s evidence is based upon your belief that California should allow empirical evidence into product liability suits. You offer no evidence to rebut, and don’t even acknowledge that the court’s assertion that the evidence was misleading and unreliable.

2: Neither Grimshaw nor Buell-Wilson was tried in a jurisdiction that allows such this sort of empirical evidence to be introduced. Perhaps backfired isn’t the best word, but Ford’s attempt to base their defense at least in part upon the admission of such evidence was foolish.

3: You ask, “The majority of states admit this evidence; are they doing so improperly?” Not if that’s the law of the state. It’s not the law in California, so the court was following the law by refusing to admit it. Would you prefer the court to ignore the law to get a result you agree with?

4 Ted 01.10.07 at 9:19 pm

Justinian’s latest comment repeats his earlier errors.

His first comment mischaracterizes my analysis and ignores my rebuttal. Rather than play Argument Clinic in response to this troll, I refer people to the Outlook, pp. 3-4. Justinian’s argument is solely to repeat the court’s “reasoning,” but the court’s reasoning was a complete non sequitur: every factor it includes as evidence of it being “misleading” is actually evidence of the data’s probity. That the court’s claim that the FARS data was misleading is disingenuous is demonstrated, inter alia, by the fact that they permitted the plaintiffs to introduce data about Bronco II rollovers despite the fact that that data suffered from the same “flaws” as the FARS data, and had the additional flaw that it didn’t even refer to the vehicle being accused as defective except by analogy. Plaintiffs were permitted to introduce their data, including anecdotal data; Ford was not permitted to put that data in a larger context.

His second and third comments attempt to rebut my normative argument by making a positive argument. Aside from the fact that Lane mischaracterizes the law, even if he was correct, his argument is especially silly when the law in question was created by the court decisions I’m arguing are wrong. The California legislature never passed a statute holding such evidence inadmissible; that was done by court fiat. It wasn’t improper to admit comparative evidence until the court said it was. Justinian’s argument in support of the court’s decision continues to be “because they said so.” That’s not an argument against a proposed policy change made by the other two branches of government to fix the problems created by the court’s decision, and Lane provides absolutely no reason why that policy change should not be made other than his reflexive defense of a plaintiff’s verdict.

5 Todd Rogers 01.10.07 at 9:36 pm

You and this Justinian go back & forth like a tennis match. It appears that from where I sit – the lay-person-wish I had gone to law school but was talked out of it by my lawyer friends – that you two don’t see eye to eye, and I’m not surprised. But why all the fuss? Pluralism is a great thing, but it seems like you should put your sword away. The guy seems to be a hack; at least inasmuch as his opinions are pretty far out there and too often so far out that even the eccentrics may not take Mr. Lane seriously. So, why all the free marketing for Bizarro?

6 William Nuesslein 01.11.07 at 10:39 am

I enjoy the tennis match.

The award to Ms. Wison should be reduced another $6,000,000, the value of a human life, because the seat belts and the strenght of the car frame saved her life.

7 Bjorn Borg 01.11.07 at 11:00 am

A “tennis match” generally implies a volley. I see a lot of aces, double-faults, and unforced errors.

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