May 18 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

October 25 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

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.

We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.

However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.

Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler is a post from Overlawyered - Chronicling the high cost of our legal system

July 6 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.

Elizabeth Thornburg, Justinian Lane, and then Richard Neely himself all claimed that Neely was being “ironic” or “sarcastic.” Of course, as numerous other quotes from the book (not to mention Neely’s contemporaneous observations) show, no one who has actually read the book could possibly believe that Neely was being ironic.

So this is perhaps entirely redundant, but it is worth providing some cumulative evidence from a check of the public record. For example, Neely claims he was being “ironic” to “sell books” and didn’t really mean it. Then what’s his excuse when he explicitly used the same reasoning in an opinion he wrote as a West Virginia Supreme Court Justice as a rationale for unjustly treating a corporate defendant?

Indeed, in some world other than the one in which we live, where this Court were called upon to make national policy, we might very well take a meat ax to some current product liability rules. Therefore, we do not claim that our adoption of rules liberal to plaintiffs comports, necessarily, with some Platonic ideal of perfect justice. Rather, for a tiny state incapable of controlling the direction of national law in terms of appropriate trade-offs among employment, research, development, and compensation for the injured users of products, the adoption of rules liberal to plaintiffs is simple self-defense. [Blankenship v. General Motors Corp., 406 S.E.2d 781, 786 (W.Va. 1991).]

If Neely was being “ironic” here, someone should give General Motors back its money.

It’s also worth noting that Justice Neely said the exact same thing in testimony before Congress on September 12, 1991 (139 Cong. Rec. S2090-02):

If you ask the average state judge whether she would like to redistribute some wealth from, say, Colt firearms to a local resident who was severely injured in a shooting accident, the judge will probably answer “yes.” But if you ask the same judge to make a choice between high local employment in Colt’s plants on the one hand, and redistribution of Colt’s money on the other, she is likely to favor high employment over simple wealth redistribution. The problem is that except for the U.S. Supreme Court, no American judge can affect these trade-offs.

If, for example, as a West Virginia judge I insist that West Virginia have conservative product liability law, all I will do is reduce my friends’ and neighbors’ claims on the existing pool of product liability insurance paid for by consumers through “premiums” incorporated into the price of everything we buy. This is the explicit rationale of Blankenship versus General Motors, 406 S.E.2d 781 (W.Va. 1991). …

Thus, as a state judge I have admitted in a unanimous opinion written for the highest court of one of the fifty states that we, as a state court, cannot be rational in the crafting of product liability rules. [emphasis added]

If Neely was being “ironic” here, he forgot to tell Congress.

Of course, anyone who has read the book already knows that Neely was not being ironic. The only people who could suggest otherwise are either ignorant (because they have not read the book, as in the case of Justinian, who, as is his wont, made wild-eyed allegations without getting his facts straight) or, if they have read the book… well, judge for yourself why someone would falsely suggest that a straight statement was ironic. The question remains how a SMU law professor would make such a patently false claim in a law review article, or how such a claim survived fact-checking.

Separately: note that Neely’s argument remains unrebutted (even by the present-day plaintiffs’ lawyer Neely), and explains as well as anything else why federal preemption is absolutely necessary (and entirely consistent with Hamiltonian/Madisonian federalism) in the litigation over interstate commerce.

Richard Neely’s lack of irony (III) is a post from Overlawyered - Chronicling the high cost of our legal system

This was, said the lawsuit of Pearl Iris Garza, Montez’s mother, the fault of Port Isabel taxpayers. (Montez’s estranged girlfriend, Belinda Leigh Camacho, the unwed mother of his child, also sued.) An Overlawyered reader can expect that. What surprised even me was that the plaintiffs also sued the manufacturer of the phone. (Isn’t it nice that through five years of blogging on the subject, the plaintiffs’ bar still has the capacity to cause outrage? Or maybe I’d be a happier person if I were more cynical.)

Port Isabel is in the south part of South Texas, so you won’t be terribly surprised that a jury found that Montez was only 60% responsible for his death, with the city 25% responsible and JCW Electronics 15% responsible. (Or maybe you’ll be pleasantly surprised that the jury ascribed that much responsibility to Montez.)

Fortunately for Port Isabel taxpayers, the Texas legislature modified its joint and several liability and comparative fault rules to bar any recovery to plaintiffs who are more than 50% responsible for their mishap. Tex. Civ. Prac. & Rem. Code § 33.002(a)(1). Nevertheless, lower courts (including the notorious Corpus Christi appellate court, see 176 S.W.3d 618) bought Montez’s trial lawyers’ argument that JCW was still on the hook because Chapter 33 only applied to torts, and they were ostensibly suing under “implied warranty.” Final judgment was issued against JCW of $140,000 to Garza and $376,200 to Montez’s son. (Camacho got nothing.)

But the Texas Supreme Court sensibly noted (citing decades of precedent) that such lawsuit allegations sound in tort, correctly applied the law, and threw out the case. (JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. Jun. 27, 2008) (via Steenson); Jail Suicide/Mental Health Update, Winter 2003 (pdf)).

Note cases like this when you see leftist Texas groups count up “business victories” in the Texas Supreme Court and falsely argue that the Court is in the pockets of business interests when the real problem is lower courts making bogus rulings to favor the trial lawyers. And note that had the jury found Montez 49% responsible instead of 60% responsible, JCW and taxpayers would still be on the hook.

Rolando Montez’s fatal phone call: JCW Electronics, Inc. v. Garza is a post from Overlawyered - Chronicling the high cost of our legal system

9:43: AP/Boston Globe reports a dramatic rejection of public-nuisance theory, holding the case should’ve been dismissed years ago. Good news that. The Rhode Island Supreme Court decision was unanimous.

5:00: Here is the opinion itself. James Beck has the most comprehensive analysis of the opinion so far; Walter gives thorough background at Point of Law as well as a roundup of other links. The defendants and NAM have released statements; Motley Rice claims they were doing it for the children, which doesn’t explain their self-serving settlement with DuPont or why they asked for a highly inefficient remediation remedy that would have maximized their attorneys’ fees.

Also: Jonathan Turley (who I just learned has a year-old blog with over a thousand posts), who, to his credit, has opposed such lawsuits; OpenMarket; Jane Genova; Publius. Attorney General Patrick Lynch is unhappy about the legal setback to his campaign contributors constituents.

Existing abatement efforts already required of landlords under Rhode Island law mean that lead paint exposure is at an all-time low in the state–evidence that was excluded at trial.

And more: ShopFloor; NFIB.

Breaking: Rhode Island lead paint decision overturned is a post from Overlawyered - Chronicling the high cost of our legal system

June 21 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Now the Manhattan Institute’s Trial Lawyers Inc. series, under the able direction of Jim Copland, has published a new installment taking a look at the state’s tense legal politics. Trial lawyers are expected to work hard this year to knock off reformist Supreme Court Justice Clifford Taylor at the polls, and are also engaged in an all-out push to repeal the state’s one-of-a-kind law directing its courts in liability cases not to second-guess Food and Drug Administration determinations on pharmaceutical approval and marketing. To get up to speed on these issues and more, start here. (cross-posted from Point of Law).

“Trial Lawyers Inc.: Michigan on trial” is a post from Overlawyered - Chronicling the high cost of our legal system

* Okay, there you go, AP, I didn’t quote even the five words from your story. But you also notice I gave the Star-Ledger first billing.

New Jersey high court: palimony without cohabitation OK is a post from Overlawyered - Chronicling the high cost of our legal system