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But federal agencies and industry groups say lawsuits are out of control. More punitive damage verdicts of more than $100 million have been issued in the past 10 years than in the rest of U.S. history, said Ted Frank, a fellow at the conservative American Enterprise Institute.

He added that liability-happy lawyers have put companies and designers in a “damned if you do, damned if you don’t” situation. For example, he says, adding more weight to a car’s roof can protect riders in a rollover, but it also makes the car more likely to tip in the first place.

An earlier version of the story on-line goes on to quote me about the hindsight bias juries exhibit when judging design decisions.

I wasn’t, but would have liked to have been, quoted disputing the claim made in the story that preemption is unique to the current Bush administration. Not so: the Bush I and Clinton administrations also recognized the importance of preemption. We’re just seeing the issue much more these days because trial lawyers have engaged in a campaign of unprecedented scope to hold manufacturers liable for meeting federal standards.

NB how I am incorrectly identified as an “industry group”, and that I am identified as belonging to a “conservative” think-tank, though no one else gets a political descriptor. Indeed, Public Citizen is identified as a neutral “consumer advocate” rather than as a leftist group funded by trial lawyers–even though it opposes and I am the one who supports a policy that promotes consumer safety and lower prices.

Update, July 1: I got the paper to print a correction: “An article in the main news section Sunday incorrectly suggested that the American Enterprise Institute is an industry group. AEI is a Washington-based think tank.”

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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.

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Update: Jury awards $246 million in punitive damages. Ford protests that it wasn’t allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, “Jury Adds Punitive Award in Ford Case”, LA Times, Jun. 4).

Update: Judge reduces damages to $150 million; Ford has appealed. (Michelle Morgante, AP, Aug. 19; Nora Lockwood Tooher, “Explorer Rollover Yields $368.6 Million Verdict”, Lawyers Weekly USA, Dec. 30).

As with all my posts, I speak for myself and not my firm or any of my firm’s clients (which include Ford).

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