As we have seen in earlier coverage, automakers will get sued over some kinds of accident if they decide to use laminated glass, and sued over others if they decide to use nonlaminated glass. Now Ted at Point of Law has details of another case, this one against Ford, in which the South Carolina Supreme Court held that NHTSA regulations resolved the issue at hand and should not be second-guessed by tort litigation. Unfortunately, as Ted notes, the trial bar and its allies in the Obama administration are doing their best to weaken the preemption defense, which would open up maximum scope for sued-if-you-do, sued-if-you-don’t litigation of this sort.
- Other motorist in fatal crash should have been detained after earlier traffic stop, says widow in suit against Kane County, Ill. sheriff’s office [Chicago Tribune]
- Now with flashing graphic: recap of Demi Moore skinny-thigh Photoshop nastygram flap [Xeni Jardin, BoingBoing, Kennerly]
- Blawg Review #245 is hosted by Charon QC;
- Expensive, unproven, and soon on your insurance bill? State lawmakers mull mandate for autism therapy coverage [KY3.com, Springfield, Missouri]
- “NBC airs segment on Ford settlement: Lawyers get $25 million, plaintiffs get a coupon” [NJLRA]
- “Drawing on emotion”: high-profile patent plaintiff’s lawyer Niro writes book on how to win trials [Legal Blog Watch]
- “Virginia Tech faces lawsuit over student’s suicide” [AP/WaPo]
- Maryland lawmaker’s Howard-Dean-style candor: “you take care of your base… It’s labor and trial lawyers that get Democrats in office” [Wood, ShopFloor]
The settlement discussed in this space July 17 — in which lawyers nabbed more than $25 million in fees and expenses, while fewer than 100 consumers redeemed Ford coupons worth $37,500 — was covered by the Associated Press last week, which stirred outrage in many quarters [Krauss/PoL, Greenfield, Cal Biz Lit]. As Cal Civil Justice notes, the settlement was purportedly on behalf of owners who suffered no rollover or other mishap. Instead, it sought damages for losses in the vehicle’s resale value due to adverse publicity, a nicely circular theory, since the adverse publicity was in good measure propelled by various allies of the plaintiff’s bar. Interestingly, several groups that had opposed the settlement dropped their objections after it was rejiggered to require Ford to provide a $950,000 donation to what are described as nonprofit auto-safety groups (which ones?). Plaintiff’s firm Lieff Cabraser, in a letter to AP, cited that and changes in Ford advertising as reasons why the settlement provided more benefit to the customer class than can be measured by the coupons alone.
Fewer than 100 consumers out of a million covered in a class-action lawsuit settled in Sacramento Superior Court have redeemed coupons to buy a new Ford, but that hasn’t stopped their lawyers from cashing in on a sweet payday.
So far, the dollar value remitted to plaintiffs in the Ford Explorer rollover class-action lawsuit has added up to about $37,500. Meanwhile, squadrons of lawyers from 13 firms from Sacramento to Woodbridge, N.J., have raked in more than $25 million in attorneys’ fees and expenses.
So Crystal Bear of Rice, Wash., who’d won $6 million from her sister in a crash lawsuit, settled for the $200,000 insurance policy limits instead. Co-defendant Ford Motor Company had also been targeted in the case, which arose from a Bronco rollover, but it got off with a defense verdict. (Matthew Heller, On Point News).
We were curious what happened to the case of Rose Marie Munoz v. Ford, the $29 million verdict against an auto manufacturer when a 10-year-old recalled Firestone tire failed and a passenger who wasn’t wearing a seatbelt was ejected. Our original post had provoked a response from the plaintiffs’ lawyer, Roger S. Braugh, Jr.
The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the “fraud” that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)
Oh, sorry, it’s not Roy Pearson, it’s Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, “SUV rollovers put Ford’s future in judge’s hands”, Sacramento Bee, May 24; official class notice from Sacramento County Court]
But because ATLA and Kia Franklin have condemned Roy Pearson’s lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus “consumer fraud” legal theory that Pearson used. Of course, there’s a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.
Some follow-up observations about the Ford Bronco $31 million verdict post.
1. South Carolina is one of the few states that has the pure form of the doctrine of “joint and several liability”, under which any deep-pocket defendant is 100% liable even if they’re only found 1% at fault. Thirty-seven states have enacted some limits on this, but South Carolina has not. Such a legal system creates incentives to find the deepest pocket and attach a shred of fault to them so that they are held entirely responsible for the consequences of others.
2. I’ve read several plaintiffs’ briefs arguing for upholding similar verdicts, as well as submissions made to NHTSA arguing that certain vehicles are “too prone” to roll over. They essentially come down to requests to ban SUVs: every SUV faces accusations of being “too prone to roll over.”
SUVs are designed to have high clearance to traverse rugged terrain. This raises the center of gravity and affects the handling: it’s a known tradeoff of the laws of physics. There are a wide variety of tests of varying degrees of scientific merit one can use to suggest a vehicle is “too prone” to roll over, and plaintiffs have the benefit of cherry-picking which tests to apply to which vehicles. You’ll find lots of lawyers complaining that the Bronco II allegedly responded poorly in “J-turn tests”, where the steering wheel is turned 330 degrees in one third of a second and held there for another 4.67 seconds. Ford designed the Explorer to pass the J-turn test to take away this claim, and the trial lawyers started using different methodologies to claim that the Explorer was too prone to roll over.
Empirically, however, the Bronco doesn’t roll over more than several other SUVs on the market, which is why NHTSA, in both the Bush I and Clinton administrations, refused to recall the Bronco when the plaintiffs’ bar asked it to. When I say Ford was held liable for producing an SUV, I’m not spinning: it was because it was held liable for producing an SUV.
Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can’t change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.
Perhaps we as a society would be better off taking the nanny-state step of banning SUVs, forbidding people from wildnerness driving because too many drivers don’t know how to drive SUVs in highway conditions, but that’s a decision that not only would end the American auto industry, but should be made other than by a 12-person jury of laypeople. This vehicle rolled over because the driver drove off the road.
3. The ultimate cost is borne not by Ford, but by the rest of us: lawsuits like this add $500 to the price of every American car. You and I can’t go to the car manufacturer and get a cheaper car by promising not to be as stupid a driver as this one was. So careful drivers are subsidizing careless ones.
4. It’s unlikely that the $500 applies equally to expensive and cheap cars, but not in the manner you think: (1) the less expensive car is more likely to be driven longer and more often and with more carpooling passengers; (2) less likely to have expensive top-of-the-line safety features that haven’t yet become standard and thus more likely to be sued over the lack of those features; and (3) more likely to be sold in such a volume that trial lawyers have put together a cheap package targeting the vehicle for lawsuit in the hopes of achieving economies of scale by targeting a lot of potential plaintiffs. (There will never be a mass tort for a Rolls Royce, for example—not enough of them are sold.) Note that the plaintiffs’ bar puts profits before people: they look at the costs and benefits of bringing suit, and target the most profitable vehicles to sue over, rather than the most dangerous ones, which is why the Ford Pinto is notorious and the VW Beetle (whose designers were so inconsiderate to write their memos in German instead of cheap-to-analyze English), which killed people at a much higher rate, is remembered with fond nostalgia.
So average liability is, if anything, higher for cheap cars than expensive cars; the $500 figure (which comes directly from the president of Chrysler) is probably higher for cheap cars and lower for expensive cars, and perhaps close to zero for the Rolls.
Reviewing Adam Penenberg’s newly published book Tragic Indifference: One Man’s Battle with the Auto Industry Over the Dangers of SUVs, which recounts the Firestone tire/Ford Explorer imbroglio mostly from the standpoint of plaintiff’s attorney Tab Turner, FindLaw reviewer Matt Herrington (Oct. 10) writes that the book “provides an interesting view of the interrelationships between the plaintiffs’ bar, the expert and consumer advocacy industries, and corporate America” but is “painfully, almost comically, one sided”: “anyone who helps the plaintiffs is a hero” while “anyone who raises any obstacle to their quest for justice must be evil”. The result? “Even bad behavior, if it helps the plaintiffs, is depicted as heroism. For example, Penenberg describes how two experts who make their livings as critics of the auto industry obtained a purportedly ‘suppressed’ National Highway Traffic Safety Administration study of uncertain provenance; they believe the study contradicted NHTSA’s public statements. But they got the study ‘through the mail’ — it was not an official document, it had no provenance — it was not, and here is the key point, admissible evidence. This technicality is resolved through trickery that is at least unethical, and likely illegal too. Penenberg reports that one of the experts ‘stashed the analysis in one of the [NHTSA] dockets concerning rollovers and then went off for lunch. When he returned, [he] informed a clerk he needed a certified copy of the report, and described where to find it. A couple hours later [he] got it back complete with NHTSA’s official seal and tied with a blue ribbon.’
“That’s not a cute story. Not even close. It’s a story of an ethical violation, a lie to the government, and a confidentiality breach.”
Archived entries before July 2003 can be found here, where the following brief essay originally appeared:
The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.
To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).
Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.
The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (“Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.
In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.
Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (“‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (“Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (“It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).
On the Ford Pinto case, the best resource is
unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ‘smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”
In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.
In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.