State laws providing a kind of tenure protection for no-longer-needed car dealers are among the reasons it can be extremely expensive to close down a failing marque. General Motors, which closed Oldsmobile eight years ago, “spent more than five years battling dealer lawsuits” despite having set aside almost $1 billion to handle the transition, and Ford may face similar challenges if it tries to shutter its ailing Mercury line. (Martin Zimmerman, “Mercury may be coming to the end of the road”, Los Angeles Times, May 10). Earlier: Oct. 5, 2006. For more see this 2001 speech by FTC commissioner Thomas Leary, and this article by Missouri lawyer Gene Brockland on the federal Auto Dealers’ Day in Court Act, which is exceeded in stringency by some of its counterpart laws at the state level.

“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).

Updates galore:

• Bogus Michael Boyle v. Ford verdict tossed by appellate court. [Law.com]
• More on the Patent Troll Tracker lawsuit. [Law.com]
• Federal district court rejects challenge to Michigan Proposition 2 ban on racial set-asides after far too much litigation over the voter initiative. [Open Market Blog]
• Criminal charges reinstated against Empire State Building parachutist. [Turkewitz]
• In the other Mississippi judicial bribery scandal (Oct. 12, Sep. 8, etc.), two judges report to federal prison. [Law.com/AP]
• Hawaii tort reform bill dead after all. [Torts Prof]

In February of last year, I wrote at length about an appalling jury verdict (June 2004) and disingenuous appellate decision in an SUV rollover case:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million).

The US Supreme Court remanded to consider in light of Philip Morris v. Williams. For whatever reason, the California Court of Appeals decision to be even more disingenuous and say “We don’t care about Williams” reaffirming the $82.6 million got much more attention. Bruce Nye has the best analysis of the “thumb in your eye” decision; Lisa Perrochet also analyzes the verdict. John Rohan is critical. Press coverage: Recorder/Law.com; San Diego Union-Tribune; Reuters; AP/SJ Mercury News. Ford will appeal.

Ruben Zamora lost control of his Ford Explorer after a tread-tire separation, causing a rollover; because he was not wearing his seatbelt, he was ejected from the vehicle and suffered brain injuries. (His four passengers suffered only minor injuries.) This is, a LaSalle County, Texas state court jury decided, 65% the fault of Ford, putting them on the hook for $6.5 million in damages. Ford denies responsibility and will appeal. (Margaret Cronin Fisk, “Ford Loses $6.5 Million Verdict in Explorer Rollover”, Bloomberg, Feb. 4; “Auto news headlines,” Detroit Free Press, Feb. 5; Nick Sullivan, “Brain-Injured Man Awarded $6.5M in Texas Rollover Case”, Andrews Publications, Feb. 11). Until a 2003 tort reform, Ford would not even have been allowed to introduce evidence that Zamora was not wearing his seat belt.

Initial reports had it that the car company’s lawyers were objecting to fans’ putting out a calendar adorned with pictures they’d taken themselves of their beloved Mustangs. Later, the company said it was fine with the fans’ publishing the photos and calendars so long as they didn’t use the Ford logo. (AdRants, Jan. 14; Culture Garage, Jan. 11).

Three cases of catastrophic injury to children, three defendants asked to pay:

• Freak accident in school parking lot “foreseeable”. According to a Los Angeles jury, it was reasonably foreseeable that an ailing parent driving a disability-converted van with hand-controlled accelerator and brakes would lose control of her vehicle and jump the curb at full speed, killing first-grader Jordan Sandels in the company of her father at Encino’s Lanai Road Elementary School in 2005. Aside from the many and baffling supposed lessons of the resulting $10 million verdict for school grounds planners (always build lots big enough that parents won’t have to park off-site?), a highlight was the jury’s finding that the parent behind the wheel was only 20 percent to blame and shouldn’t have to pay anything [LA Times via Handel on the Law]
• Destroy evidence, then win $41 million from second defendant. Joseph Provenza, 13, was catastrophically burned in 2001 when he “jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire” [Bowman & Brooke summary] The plaintiff’s father, himself a plaintiff in the suit, later admitted that he willfully removed and discarded a bypass wire from the motorcycle before Yamaha’s investigators could see it because he thought the evidence of modification might interfere with his son’s lawsuit, and either he or members of the legal team removed or modified other relevant equipment on the vehicle. A judge dismissed the claims against Yamaha, citing willful and pervasive spoliation of evidence as well as lack of candor in discovery responses on the issue. The family then proceeded to trial against a Wisconsin clothing manufacturer which it argued should have made its garments flame-retardant because they were promoted for use with motorcycles, although federal law did not and does not require flame retardance in such garments. The jury awarded $41 million; a defense lawyer says the jurors were never allowed to learn about the hot-wire modification, though it was the cause of the accident, or the subsequent spoliation. [Las Vegas Review-Journal, Janesville (Wis.) Gazette; Carcione law firm (also of Romo v. Ford Motor fame)]. More: BrooklynWolf.
• Schools sometimes responsible for injuries after school hours.The South Main Street Elementary School in Pleasantville, N.J. had long preannounced a 1:30 p.m. early dismissal on a certain day in 2001. Third-grader Joseph Jerkins was allowed to leave, in accord with school policy for youngsters whose families had not requested that they be released only into adult custody. Two hours and twenty minutes later, while playing with a friend, Joseph ran into the street and was struck by a car and horribly injured. The family said it had not been adequately informed of the early dismissal. A trial court dismissed the suit, but the New Jersey Supreme Court, announcing a new duty of care for school districts, ruled that the family could sue on the grounds that the school’s policies should have restrained the boy from leaving. The district settled for $6 million. [AP/Philly.com; NJ Principals and Supervisors Association]

• Remember that ludicrous case where the Florida driver fell asleep, crashed his Ford Explorer, his passenger was killed, and a jury blamed Ford to the tune of $61 million? (See also Sep. 10.) A Florida court got around to reversing it, though only to grant a new trial under a variety of erroneous evidentiary rulings that prejudiced Ford, rather than because the suit was too silly to ever conceivably win in a just society. The remand goes back to the same judge that let the suit go forward and committed multiple reversible errors in favor of the plaintiff. [Ford Motor v. Hall-Edwards (Fla. App. Nov. 7, 2007); Krauss @ Point of Law; Daily Business Review; Bloomberg/Boston Globe]
• Not really a man-bites-dog story, but Geoffrey Fieger (Aug. 25 and rather often otherwise) speaks. [ABA Journal]
• Uh-oh: Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
• The real NatWest Three deal. [Kirkendall; July 2006 in Overlawyered]
• Homeowners fined $347,000 for trimming trees without a permit—after the Glendale Fire Department sent them a notice telling them to trim their trees for being a fire hazard. (h/t Slim) [Consumerist]
• Disclaimers at children’s birthday parties (h/t BC) [Publishers Weekly]
• British Christmas parades handcuffed by litigation fears. (h/t F.R.) [Telegraph]
• Underlawyered in Saudi Arabia: A “19-year-old Saudi gang-rape victim was recently sentenced to 200 lashes and six months in jail for being in a car with an unrelated male when the attack occurred. Last week, her lawyer was disbarred for objecting too vociferously.” [Weekly Standard]
• Don’t forget to vote for us at the ABA Journal Blawg 100.

• Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
• Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
• US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
• Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
• KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
• McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]

The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:

I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning - - Somebody, somewhere…

While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (”Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (”Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (”Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).

My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.

I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.

Plaintiffs’ attorney Sandy McMath responds in the comments to our discussion of the Chapman v. Ford Motor Co. case. Note particularly the bait-and-switch that assumes Overlawyered readers are innumerate.

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.

Betty Potter, who weighed 230 pounds, was driving her Ford Escort in the rain on bald tires, lost control of her car, and collided backwards into a tree at 30 mph. Her seatback collapsed in the impact, rendering her paraplegic when her head hit the back seat. She was allowed to argue to a jury that the design was “defective” even though her lawyers could not identify an alternative design that would have prevented the harm; Ford was held 70% liable for $10 million in damages. The Tennessee Court of Appeals affirmed the state trial court verdict. Of course, it’s impossible to design seatbacks to handle all conceivable combinations of collision direction and driver sizes; as the plaintiffs’ expert admitted, using a rigid seatback instead of a yielding seatback to withstand this sort of collision makes other types of injuries much more likely, and low-speed collisions where the yielding seatback has benefits are far more likely than high-speed collisions. The jury (and Tennessee court) is essentially punishing Ford for failing to have perfect foresight in matching its cars with the accidents the cars’ drivers will have. (Potter v. Ford Motor Co.; concurring opinion; via Products Liability Prof. Blog).

In other rigid v. yielding seatback lawsuit news, the Illinois Court of Appeals released on the web the Mikolajczyk v. Ford Motor Co. opinion for the case we discussed Dec. 1, 2006 and March 21, 2005. The same issues apply in that case, except there, the accident was caused by a drunk driver plowing into the back of a stopped car at over 60 mph.

Recent developments on past stories:

* Remember Shannon Peterson, the Denver condo owner who got sued by a neighbor who complained that she was taking baths too early? (Feb. 27). The case is still dragging on the better part of a year later, a judge having refused so far to throw it out. David Giacalone has the details (Nov. 30).

* Glamourpuss lawsuit-chaser Erin Brockovich, fresh from the humiliating dismissal (Nov. 18) of suits she fronted against California hospitals alleging Medicare overbilling, has been rebuffed in another high-profile case. This time a judge has dismissed twelve lawsuits brought by her law firm of Masry & Vititoe alleging that exposure to oil rigs at Beverly Hills High School caused cancer among students there (Martha Groves and Jessica Garrison, “School oil-rig lawsuits dismissed”, Los Angeles Times, Nov. 23) (via Nordberg who got it from Legal Reader). For more on the case, see Jul. 15 and Nov. 19, 2003, and Mar. 16, 2004. The New Republic has marked the occasion by reprinting its revealing 2003 article on the affair by Eric Umansky. P.S. More from Umansky, who has his own blog, here.

* Reader E.B. writes in to say:

Remember the group of parents (Oct. 23) who threatened litigation over their daughters’ playing time on the girl’s basketball team? The ones who demanded a six-person panel to oversee the selection of the players?

None of the parents’ daughters made the team. And they’re not happy about it. See C.W. Nevius, “Castro Valley hoops coach can’t win”, San Francisco Chronicle, Nov. 30.

* A court has dismissed the action (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, 2006) by fair housing activists against Craigslist over user ads that expressed improper preferences or mentioned forbidden categories in soliciting tenants, apartment-sharers and so forth. (Anne Broache, “Craigslist wins housing ad dispute”, CNet, Nov. 17). However, blawger David Fish says the court’s reasoning was highly unfavorable to many other Internet companies generally, and may expose them to future liabilities (Nov. 15). Craigslist now has an elaborate page warning users that it is unlawful for them to post preferences, etc. in most situations not involving shared living space. Update: David Fish’s name corrected, apologies for earlier error.

* 3 pm update to the updates from Ted: “An Illinois intermediate appellate court overturned the $27 million verdict in Mikolajczyk v. Ford (which we reported on last year), ordering the lower court to replace the arbitrary jury verdict with a lower arbitrary number. Why the jury’s damage award is considered the product of passion and prejudice, but the same jury’s liability award is kosher, remains unclear. (Steve Patterson, “Court says $27 million crash award too much”, Chicago Sun-Times, Nov. 23).”

For decades, plaintiffs’ attorneys and labor unions have worked together to elect judges favorable to their interests, and for decades, these elected judges have systematically moved American law in a direction unrecognizable and ridiculed in the rest of the world to create a tort system that takes up a share of the economy more than twice as large as any other Western nation. In response, the business community started supporting judges who had track records of actually following the law; the electorate tended to support these judicial candidates over the plaintiffs’ bar’s candidates. Because these judges aren’t in the pockets of the plaintiffs’ bar, they don’t reflexively vote for the meritless positions taken by the litigation lobby—and now the New York Times and the press suddenly finds it interesting that judges face elections where they fund-raise, and that campaign funds are more likely to be donated to candidates who are sympathetic to the funder’s view of the law. (Adam Liptak and Janet Roberts, “Campaign Cash Mirrors a High Court’s Rulings”, New York Times, Oct. 1).

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Class action lawyers were suing Ford Motor claiming to represent Illinois municipalities that regretted buying the popular police model. Then Ford announced that it would decline to sell the car to towns that were suing over it. Now, according to the Illinois Civil Justice League, close to 1,000 municipalities have elected to opt out of the action — one sign among several that it was ill-conceived from the start. More here, here and here (cross-posted from Point of Law).

Michael Boyle pleaded guilty to a charge of unsafe driving after he plowed into the back of a truck at 60 mph without braking and with his lights off. Unfortunately for Boyle, the under-ride rear impact guard of the truck, installed by Garden State Engine and Equipment, sheared off in the high-speed collision, and his car submarined under the truck, almost decapitating him, and leaving him with brain damage and facial insensation, though he’s able to work in his family business. This was, the New Jersey jury decided, 70% the fault of Ford Motor, which dared to sell an incomplete cab and chassis that complied with all federal regulations, and which could be modified in many different ways, not all of which require identical under-ride guards to comply with applicable regulations. $26.2 million in damages were assessed. Ford was not allowed to introduce Boyle’s guilty plea at trial. (John Petrick, “Faulting Ford and parts maker, jury awards crash victim $26.2M”, North Jersey, Mar. 22) (via Steenson, who made no mention of the contributory negligence in his summary). Unjust $26 million awards are apparently sufficiently “dog-bites-man” that the local press coverage is the only press coverage so far.