• New York attorney suspended from practice after attempting as guardian to extract $853,000 payday from estate of Alzheimer’s victim [ABA Journal, Emani Taylor]
• Bought a BB gun to fend off squirrels, now his 20-year-old son faces three years for bare possession [MyCentralJersey.com via Zincavage]
• U.K.: “Sports clubs face being put out of business following a landmark court ruling forcing them to be liable for deliberate injuries caused by their player to an opponent.” [Telegraph]
• Prosecutors in Norwich, Ct. still haven’t dropped their case against teacher Julie Amero in malware-popup smut case. Why not? [TalkLeft, earlier]
• Dealership protection laws, deplored earlier in this space, work to make a GM bankruptcy both likelier and messier [The Deal]
• Strange new respect for talk show host Joe Scarborough in quarters where conservatives are ordinarily disliked? Some of us saw that coming [NYMag]
• Following Rhode Island rout of lawsuit against lead-paint makers, Columbus, Ohio drops its similar case [PoL, Akron Beacon Journal editorial]
• In latest furor over free speech and religious sensitivity in Europe, Dutch authorities have arrested cartoonist “suspected of sketching offensive drawings of Muslims and other minorities” [WSJ; "Gregorius Nekschot"]

• Beck and Herrmann fisk a NEJM anti-preemption editorial. [Beck/Herrmann; NEJM]
• Lessons of the Grasso case. [Hodak]
• You think BigLaw has it bad? Plaintiffs’ attorney who invented the benefit-of-the-bargain theory for pharmaceutical class actions where no one has suffered any cognizable injury, has made his firm tens of millions, but still hasn’t made partner. “Zigler said he never meets most of the people he represents in these high-profile cases.” [St.L. Post-Dispatch; related analysis from Beck/Herrmann]
• Speaking of harmless lawsuits, “an atrocity in Arkansas,” as Arkansas Supreme Court ignores basic principles of due process and civil procedure to certify an extortionate pre-CAFA class action from MIller County. [Hmm, that's Beck/Herrmann again; General Motors v. Bryant; related from Greve]
• Speedo competitor: unfair competition to say your innovative swimsuit has an advantage just because 38 out of the last 42 world records (as of June 30) were broken in the suit. [Am Law Daily]
• Background on bogus shower curtain scare story (earlier). [NYT; related AEI event]
• EMTALA-orama: don’t discuss payment in the emergency room if you don’t want to get sued. [ER Stories]

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.

According to the New York Daily News’ columnists Rush & Molloy (Jun. 13): “Barbra Streisand’s emergence from ‘retirement’ has set off a buzz among longtime Streisand fans, who say they paid exorbitant amounts of money for her last ‘retirement’ tour and may file a class-action suit against the legend for tricking them into thinking they were seeing her for the final time.”

For those who find this idea utterly far-fetched, it should be noted that quite a number of years ago an unsuccessful class-action suit was pursued against General Motors following its reintroduction of convertible Cadillac models; a few years earlier, some enthusiasts had purchased some other convertible Caddies following press buzz about how they were going to be the last convertibles built in America.

By reader acclaim: “An FBI agent who pleaded guilty to drunken driving has sued the maker of his pickup because it caught fire after he passed out behind the wheel. Robert Clymer, who was involved in a high-profile investigation of the Crazy Horse Too strip club, had a blood-alcohol content of 0.306 percent, nearly four times the current legal limit, and was unconscious when Las Vegas firefighters pulled him from his burning truck on Jan. 29, 2005.” The lawsuit, against General Motors and dealership Bill Heard Chevrolet, says Clymer “somehow lost consciousness” — possibly the empty bottle of Captain Morgan Rum found on the passenger seat had something to do with that? — and that while he lay there with the engine running the 2004 Chevy Silverado “somehow” began to give off smoke from some sort of combustion, which may or may not be code for “theory to be filled in later”.

At sentencing in November — he drew a suspended 30-day jail term and 48 hours community service — “Clymer’s lawyer said his client wanted to take responsibility for his actions.” (Brian Haynes, Las Vegas Review-Journal, Apr. 14).

In 1991 portions of Texas’s Rio Grande Valley saw an upsurge in babies born with neural-tube defects. Litigation resulted:

Residents and lawyers had blamed pollution, and General Motors and other U.S.-owned factories paid $17 million without admitting wrongdoing to settle a lawsuit accusing their border factories of poisoning the air.

The claimed linkage of cause and effect between the factory pollution and the birth defects was, to say the least, much controverted at the time, and is looking even less impressive in hindsight:

no chemical links to the disease were ever proven, and Texas health officials began suspecting fumonisin, a toxin in corn mold. Experts had noted a high concentration in the corn harvest just before the outbreak. Some Texas horses died from brain disease caused by the toxin.

Now, a study in the February issue of the journal Environmental Health Perspectives adds impetus to the corn-mold theory:

The study found that pregnant women who ate 300 to 400 tortillas a month during the first trimester had more than twice the risk of giving birth to babies with the defects than did women who ate fewer than 100 tortillas.

Blood samples indicated that the higher the level of fumonisin, the greater the risk of neural tube defects.

Tortillas are an inexpensive dietary staple along the Texas-Mexico border, and studies suggest that the average young Mexican-American woman along the border eats 110 a month.

(”Study: Bad corn caused birth defects”, AP/Seattle Post-Intelligencer, Feb. 8). See also Dallas Morning News, Mar. 4, 2001; AP, Jan. 2001; Nicole Foy, “Border birth defects are tied to poverty”, San Antonio Express-News, Apr. 9, 2004.

Among its other implications, the episode may suggest the safety gains to be had in the shift from a pre-modern food regime based on local farm and home production to the sort of industrially based food regime more familiar to most Americans. Even aside from the issue of folic acid fortification, a big-city tortilla factory run by a large company would probably have had a better likelihood of screening out moldy batches of corn.

Elderly driver Constance Peters sped in reverse out of her driveway in her Oldsmobile Cutlass and severely injured herself. Plaintiffs’ attorneys blamed General Motors, alleging sudden acceleration (Apr. 19, 2004, Jun. 6, 2000) through a defective cruise control (that magically ceased running the engine when the driver was knocked unconscious). More sophisticated plaintiffs’ attorneys have long since recognized that defective cruise control theories are so much nonsense (there is no reason for a “defect” to be six times more likely to affect elderly drivers) and try to sue for failure to warn of pedal misapplication or failure to recall and install shift-interlock safety protection in older cars, but some cases proceed on the older theory; this one resulted in an $80 million verdict. The plaintiffs went too far, however, and shoveled into evidence 139 cases of previous “sudden acceleration” that they attempted to use to show that the cruise control was defectively accelerating out of control—even though the cars in those incidents did not have cruise control! The Missouri Court of Appeals reversed and granted a new trial, though plaintiffs will get to present their bogus case again. (Randall Peters v. General Motors Corp. (Mo. App. W.D. Jan. 17, 2006); Tresa Baldas, “Acceleration Case Draws $80M Jury Verdict”, National law Journal, Jan. 7, 2003).

Ohio workers who got their jobs through a welfare program are suing the state for improper compensation. Example: As part of his welfare benefits, Bruce Smith stripped floors in Youngstown when his knee snapped as he bent to pick up a bucket of water. His attorneys argue he should have received worker’s compensation based on his pre-welfare salary, not on his food stamp allowance, according to a state supreme court decision. The state says the ruling “applied to death benefits, not regular workers comp claims.”

The welfare program is a tiny part of overall claims. The workers compensation bureau has paid about $6 million for 3,200 successful welfare worker claims to date, compared to about $2 billion last year alone in regular claims, Hicks said.

The Equal Justice Foundation says the number of potential claims is much higher. In court filings accompanying the lawsuit, foundation attorneys say the figure is over 5,000, citing workers’ compensation bureau e-mails.

Smith, 59, went on welfare after he was laid off from his job making bumpers for a General Motors parts supplier. He was injured in April 2003 on a job he received in Mahoning County as a condition of getting $139 in food stamps weekly.

Associated Press, “Lawsuit Alleges Workers Hurt On Welfare Jobs Cheated,” Jan 4.

Another example of how personal injury attorneys and the “Center for Auto Safety” actually care very little about auto safety: In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives, a number that will almost certainly be reduced, but the entire verdict is inappropriate. “It is unfairly punishing DaimlerChrysler for a reasonable engineering decision that resulted in a product that met all federal standards,” DaimlerChrysler spokesman Jason Vines said. (Rob Johnson, “Jury awards $105.5 M in baby’s death”, The Tennesseean, Nov. 24; Matt Gouras, AP, Nov. 24; “DaimlerChrysler Is Told to Pay $98 Mln in Van Crash”, Bloomberg, Nov. 23; Sheila Burke, “Chrysler being sued over baby’s van death”, The Tennesseean, Nov. 4). More coverage: Dec. 21.

Continue Reading »

After less than a day of deliberations, jurors rejected a lawsuit claiming that General Motors was responsible for the death of former Kansas City Chiefs linebacker Derrick Thomas, who was speeding on ice without a seat belt at the time of his fatal crash four years ago (see Nov. 28, 2000). The ruling was a setback to attorney Michael Piuze (Jun. 19, 2001, Sept. 24, 2001, Oct. 4-6, 2002), who argued the case for the plaintiffs. (”GM Wins In Derrick Thomas Wrongful Death Trial”, KansasCityChannel.com, Aug. 17).

The family, as we noted in our earlier item on the case, had also sued local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident. The ambulance company settled, as did a Chevrolet dealership. “There was no dispute that the Suburban’s roof was far stronger than federal standards, but the family contended that those standards were insufficient and needed to be changed. … Almost whispering to the jury, [Piuze] asked them for from $75 million to more than $100 million in damages, saying he did not want to put an upper limit on it.” We’ll bet he didn’t (Joe Lambe, San Jose Mercury News, Aug. 17).

Speaking of crashing into a crowd of bystanders: “Eleven lawsuits were filed Tuesday on behalf of two people who were killed and nine who were injured when a car plowed through a crowded farmers market last summer.” Named as defendants in the suit by Brian J. Panish, Timothy J. Wheeler and Geoffrey S. Wells are the City of Santa Monica; “the company that oversees the market, a farmers association, Los Angeles County’s agricultural commissioner and the state of California”; and General Motors. Oh, yes, and the actual driver, 88-year-old George Russell Weller; almost forgot him. (”Lawsuits filed in Santa Monica farmers market car crash that killed 10″, AP/San Francisco Chronicle, Jul. 13; “Greene Broillet Files 11 Lawsuits Against the City of Santa Monica for Wrongful Deaths and Personal Injuries Arising out of the July 2003 Santa Monica Farmers’ Market Tragedy”, press release, Jul. 13). In all, ten people were killed and 63 injured in the accident last July. (& see Sept. 15).

Fifteen years after the National Highway Traffic Safety Administration concluded that the explanation for supposed “sudden acceleration” in cars was that the drivers were mistakenly pressing the accelerator rather than the brake, trial lawyers continue to sue automakers, and now NHTSA has agreed to open an investigation into claims of unintended acceleration in Toyota and Lexus models. While an earlier wave of suits tended to blame cruise control malfunctions, the new favorite culprit is electronic throttle control systems. In lawsuits over the accidents, the car’s brakes, which can ordinarily bring a car to a stop even when its throttle is fully open, will typically be said to have mysteriously failed as the same time as the acceleration defect was manifesting itself, although nothing will be found physically wrong with the brakes afterward.

“For more than a decade, decisions usually favored car companies and blamed drivers in unintended acceleration cases, but some recent trials and court decisions reversed that. Ford Motor and General Motors each recently lost a high-profile case. … A Missouri jury last year ordered GM to pay Constance Peters and her husband $80 million for the crash of her 1993 Oldsmobile Cutlass, which accelerated 120 feet in reverse and into a tree while she was backing up. They blamed faulty cruise control. GM is appealing.” And: “The U.S. Circuit Court of Appeals in New York in 2002 reinstated a $1.1 million judgment against Ford in the crash of a 1991 Ford Aerostar. Jurors had found that the crash was caused partly by a ‘negligently designed’ cruise control system.” (Jayne O’Donnell and David Kiley, “Technology puts unintended acceleration back in spotlight”, USA Today/Detroit News, Apr. 13)(via Reason Hit and Run). For more on the issue, see Jun. 6, 2000.

“Reasonable people do not believe that Ford or General Motors should be sued when a drunken driver speeds into and kills a pedestrian. They understand that the manufacturer should not be faulted merely because its product is used improperly and illegally. It is obviously the driver who needs to be punished.” The Senate is about to take up a bill, supported by a majority in both Houses, which would protect gun manufacturers from being sued over criminal misuse of their products. Lawmakers who sympathize with the gun-control-through-litigation campaign will try to attach spoiler amendments in hopes of derailing the bill; they shouldn’t be allowed to succeed. (”Gun legislation” (editorial), Hill News, Feb. 25). For our past commentaries on the topic, see Oct. 9 and Apr. 4-6, 2003 and our gun litigation page generally.

The Alabama Supreme Court reversed an $82 million verdict against General Motors–not because it was ludicrous to hold GM responsible (much less responsible for $60 million in punitive damages) because a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph, but because the trial judge had refused to strike five jurors who were related to an attorney at the law firm for the plaintiff. The case will be retried. (Philip Rawls, AP, Dec. 12; “Brain injury in crash costs General Motors”, OnWheels, May 20, 2002) (via Bashman).

From Lowell, Mass. comes word that a jury has rejected a suit asking that Joseph Albert be awarded millions of dollars for drinking himself into a coma. Attorney Peter J. Nicosia of Tyngsboro asked $11 million in a “dramshop liability” suit against Gus & Paul’s Tavern for serving an undetermined number of beers over two hours to Albert, who was found by police later that night with a blood-alcohol level at a startling .48. Complicating Nicosia’s case was a deposition from a boon companion of Albert’s saying that the plaintiff had been drinking from a bottle of Jack Daniel’s whiskey after leaving the tavern. “I played that off to be basically an untrue story and basically a red herring,” said attorney Nicosia of the Jack Daniels. “The bottle was never found; no one ever saw him drink it.” The jury evidently wasn’t persuaded. (Jeanne Greeley, “Tragic Dram-Shop Case Just Had Too Many Holes”, Massachusetts Lawyers Weekly, Jun. 30). In another of last year’s big defense wins in the Bay State, a jury decided it wasn’t General Motors’ fault that a mother had left her Chevy Astro van running with the keys in the ignition and occupied by her infant with her 4-year-old sister; the pre-schooler climbed into the front and shifted the transmission, causing the van to roll into a pond. (Kelly Winget, “Tot rolls van into pond”, Lawrence Eagle-Tribune, Jul. 18, 2000).

General Motors has settled on undisclosed terms the suit in which a Los Angeles jury awarded $4.9 billion, later knocked down to a mere $1.2 billion, to six people injured when their Chevy Malibu was rear-ended by a drunk driver; the plaintiff’s lawyers had charged the Malibu with defective design, although federal statistics show it to have a safety record well above average (see Dec. 16, 1999 and links from there). And contrary to reports (including ours) that trial lawyers were managing to kill off car-lease reform in Rhode Island, major automakers said they would remain in the Ocean State leasing market after Gov. Don Carcieri on Jul. 7 signed legislation which for one year caps at $300,000 the liability of car lessors for accidents that their lessees get into (see Jul. 14). The change leaves New York as the only state with unlimited vicarious liability for lessors. (”Business: National Briefs”, Detroit News, Jul. 25).

Leasing liability: “‘Silver’s wreck’“, Jun. 9, 2003; “Auto-lease liability: deeper into crisis“, May 21; “‘Automakers may stop leasing vehicles in N.Y.’“, Mar. 12-14, 2003; “R.I.: No more cheap car leases?“, Aug. 26, 2002. 

Romo v. Ford Motor Co.: “Update“, Jun. 2, 2003; “‘California Court Upholds $290 Million Injury Jury Award Against Ford’“, Oct. 24, 2002; “You read it here first“, Aug. 27, 2002; “Tainted by ‘60 Minutes’“, Sept. 17-19, 1999; “The dream verdict” (California Bronco award), Aug. 24, 1999. 

“Steering the evidence” (DaimlerChrysler gets sanctions against lawyers for evidence and witness tampering), May 23, 2000 (& updates Jun. 26, 2000, Mar. 17, 2003). 

“‘The Lawyers Are Lurking Over S.U.V.’s’“, Jan. 9, 2003.

Tires: “Blaming murder on flat tire“, Jun. 4-5, 2003; “Hey, no fair talking about the pot” (rollover), Apr. 12-14, 2002; “‘Plaintiff’s lawyers going on defense’” (Reaud represents Bridgestone Firestone), Oct. 9, 2001; “‘Lawyers put profit before lives’“, June 28; “Trial lawyers knew of tire failures, didn’t inform safety regulators“, June 25 (& letter to the editor, July 6); “Big numbers” (Continental General Tire, Cooper Tire), April 16, 2001; “Product liability criminalized?“, Oct. 20-22, 2000; “Hasty tire judgments“, Oct. 16-17; “Who caught the tire problem?“, Sept. 15-17; “‘Feeding frenzy over Firestone’“, Sept. 11, 2000.

“Ford didn’t push pedal extenders, suit says“, Feb. 27-28, 2002 (& letter to the editor, Apr. 11). 

“‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’” (VW), Feb. 25-26, 2002. 

“Chrysler dodges a $250 million dart“, Dec. 7-9, 2001; “Miami jury to Ford: pay $15 million after beltless crash“, Sept. 24, 2001. 

“Disclaimer rage?” (GPS software), Oct. 15, 2001. 

“When trial lawyers help redesign cars” (Thornburgh on GM trucks), Aug. 6, 2001. 

Airbags: “‘Airbag chemical on trial’“, Aug. 14, 2000; “Deflated“, May 16, 2000; and see Oct. 20-22, 2000 (Henry Payne cartoon). 

“Drive 60K miles, collect $273K“, Jan. 9, 2001; “Tales from the tow zone” (verdict against Chrysler), Oct. 31, 2000. 

“Highway responsibility” (GM sued in Derrick Thomas speeding-on-ice crash), Nov. 28, 2000. 

“Product liability criminalized?“, Oct. 20-22, 2000. 

“Target Detroit” (mass litigation; S.U.V.’s; class action firm countersues DaimlerChrysler and exec personally), Jul. 19-20, 2000; “Turning the tables” (DaimlerChrysler sues class action lawyers), Nov. 12, 1999. 

“Nader on the Corvair“, July 13, 2000; “Nader, controversial at last“, June 13, 2000; “Deflated“, May 16, 2000. 

“Sudden deceleration” (NHTSA rejects petition for sudden-acceleration probe), Jun. 6, 2000. 

“‘Saints, sinners and the Isuzu Trooper’“, April 14-16, 2000; “Verdict on Consumer Reports: false, but not damaging” (Isuzu v. Consumers Union), Apr. 10, 2000. 

“$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues Honda over seat belt), Mar. 28, 2000. 

“‘Motorists speed more, but fewer die’“, Feb. 19-21, 2000. 

“GM verdict roundup” (Anderson v. General Motors fallout continues), Dec. 16, 1999; “L.A. judge cuts award against GM to $1.2 billion“, Aug. 27, 1999; “In L.A., redesigning the Chevy” ($5 billion Malibu gas tank verdict), Jul. 10, 1999 (& see update Aug. 3, 2003, case settled on undisclosed terms). 

“Toshiba and Ford, in the same boat“, Dec. 2, 1999. 

“‘Wretched excesses of liability lawsuits’” (David Boldt, Philadelphia Inquirer), Nov. 29, 1999. 

“Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999. 

“Zone of blame” (policeman shot in his cruiser, automaker sued), Oct. 27, 1999. 

“Rhode Island A.G.: let’s do latex gloves next” (speed governors on cars), Oct. 26, 1999. 

“The art of blame” (Ford sued after child left in parked van in sun dies of overheating), Oct. 20, 1999. 

“Demolition derby for consumer budgets” (class action against State Farm over generic crash parts), Oct. 8, 1999.

“Yes, it is personal” (automotive engineers take design-defect suits as personal accusations), Oct. 7, 1999.

“Too many games at GM?” (Atlanta ruling on Ivey memo controversy), September 10, 1999.

“Do as we say (II): gun-suit hypocrisy in Detroit” (gun- and automakers both sued after criminal misuse of their products), Aug. 30, 1999.
——————————————————————————–

[additional essay on auto design liability here]

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.