Chronicling the high cost of our legal system
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“Every time we go to hire an attorney to defend a lawsuit, as soon as we say ‘Ford Explorer,’ they charge us more money,” explains a company spokeswoman. Today’s Explorer is based on a design entirely different from the model that attracted rollover litigation in the 1990s, which doesn’t seem to matter. [Edward Niedermeyer, Truth About Cars]
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Soaring prices have lately rocked the used-car market, which — I argue in a new post at Cato at Liberty — should cast even more doubt on the wisdom of some of the federal government’s recent interventions in the auto business.
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James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.
P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.
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That’s something Congress should remember, notes the Economist, before it passes more laws named after victims, such as the Cameron Gulbransen Kids Transportation Safety Act of 2008, under which the Department of Transportation is in the process of mandating rear cameras on cars so as to reduce back-over accidents in family driveways.
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Kevin at Lowering the Bar spots a promising new theory in a defense expert’s testimony, though it’s not clear the lawyers actually wound up making use of it. [Vail Daily, same at Denver Post]
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Product liability edition:
A lawyer sued on behalf of two girls named Zoe Renault, but a French judge ruled the claim out of bounds absent proof that “the car name would cause the girls “certain, direct and current harm.” [USA Today]
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In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn’t bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham’s lawyers) decided that this was only 45% Hale’s fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages.
On Monday, the South Carolina Supreme Court reversed because of prejudicial closing arguments that relied heavily on inadmissible evidence. More importantly for lawyers practicing in South Carolina, the Court adopted “the risk-utility test with its requirement of showing a feasible alternative design.”
How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs’ table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the “defense.” More from Comer; no press coverage that I’ve seen yet. (cross-posted from Point of Law)
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When drivers say faulty driving instructions caused their accident, should someone else have to pay? [Tom Vanderbilt, Slate] Earlier on the Google Maps pedestrian suit here.
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Coyote looks at a tax collection ploy in Arizona — as well as cash-for-clunkers — and suspects not.
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At first lawyer J. Kendall Few, trying a case against Kia Motors alleging seat belt failure, denied tampering with the seat belt in an exhibit car so as to produce an effect prejudicial to the automaker’s case. “Later he admitted he had moved the seat belt, but said he thought he had returned it to its original position. ‘I’m 70 years old, and I’d been through a fairly hard day. I went down there, and I don’t remember everything as good as I did when I was 25 or 30,’ Few said.” A federal judge said it was a “close call” but declined to levy sanctions, finding “there was no conclusive evidence that Few had acted in bad faith or committed intentional misconduct”. [ABA Journal]
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In 1992, Diana Maychick drove her mother’s Oldsmobile back to Washington Place in Greenwich Village, and got out. Her mother, the 74-year-old Stella Maychick, slid over from the passenger seat to the driver’s seat, readying herself to return to Yonkers. Maycheck, a shorter-than-average woman, suddenly took off in the car, which sped up, ran two stop signs, and tore through Washington Square Park, killing five and maiming several others.
Diana Maychick is now Diana Foote, a restaurant reviewer for a Palm Beach newspaper, and recently recounted the accident, claiming the recent Toyota troubles exonerated her mother.
Which I found fascinating, because I worked on that litigation—and the evidence that Maychick hit the gas instead of the brake was so strong that the plaintiffs’ lawyers abandoned the standard specious “mysterious gremlins caused the car to accelerate” theory and replaced it with a “General Motors knew that drivers were hitting the wrong pedal but didn’t do enough to warn them” theory. I took issue with Foote’s column in a letter to the newspaper.
As for the lawsuit itself, the judge excused everyone in the voir dire who expressed the remotest skepticism about plaintiffs’ theory, and GM settled shortly after the start of trial. One certainly marvels at the chutzpah of the theory of the case, given trial lawyers’ role in trying to persuade the public that driver error couldn’t possibly be to blame.
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Individual liberty, free markets, and peace: the world's premier libertarian think tank. Publishes Cato at Liberty, where I blog on contemporary policy issues.
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