A letter from the La Vega Independent School District warned DaMarcus Blackwell that his son was involved in “inappropriate physical behavior interpreted as sexual contact and/or sexual harassment” after the boy hugged a teacher’s aide and “rubbed his face in the chest of (the) female employee”. The boy was four years old at the time. (Emily Ingram, “Hug lands 4-year-old in suspension”, Waco Tribune-Herald, Dec. 10; Volokh, Dec. 12).
December 14 roundup
- Ford wins an Explorer rollover lawsuit brought by family of unseatbelted accident victim, but press coverage is skimpy. [Detroit News]
- Milberg Weiss’s claims for $12 million in fees viewed skeptically, cut in half. [Lattman; WSJ]
- Dog food prank plaintiff Tennie Pierce is “the O.J. of the Fire Department.” Contrary to what one may think, this is apparently meant as a compliment, suggesting a racial divide that can’t be entirely attributable to whites. [LA Times]
- SDNY Clinton appointee Judge Scheindlin thinks she’s smarter than Judge Easterbrook, throws pension law into mess again. See POL Nov. 12 and Aug. 8 for background. [Business Insurance; Cooper v. IBM]
- Nifong gets around to releasing DNA results that appear to exonerate indicted Duke lacrosse players. Earlier: Oct. 12, etc. [AP/ABC News]
- Judge won’t censor Borat DVD, but frat-boy lawsuit goes forward. [Reuters]
- Criminal speeds away from DC police, hits innocent motorist, DC taxpayers liable for $1M. [WaPo]
- Similarly: negligent driver veers across three lanes of highway traffic into oncoming vehicle, killing 18-year old; taxpayers liable for $2M because SUV was able to smash through the median. [AP/King County Journal]
- Today’s Ninth Circuit Follies edition: lawless reopening of final sentences. [Kerr @ Volokh; Bashman; Carrington v. US; Lat]
- Robert Ramsey files two more lawsuits claiming simultaneous asbestosis and silicosis in Madison County against several dozen defendants. [Madison County Record]
- UK: 100-pound fine for misfiling trash. [Market Center Blog via Overcriminalized]
- Inhofe’s take on global warming. [Senate]
- Trial lawyer puts money where his mouth is. Check back in ten years to see whether it’s lawyers or insurers who are really at fault for medmal insurance crisis. [Point of Law]
- I blame the fact I joined Friendster for this. [PrawfsBlawg]
Seattle airport Christmas tree suit
Discussed at Althouse (Dec. 13).
UK: “Cathedral puts out the flames of Christingle”
“For the first time in more than 250 years, children will not be allowed to carry candles at a cathedral service in case their hair catches fire. There is no record of a child going up in flames since the Christingle service began at Chelmsford Cathedral in 1747. However, children this year will carry fluorescent glow sticks rather than the traditional candles set in oranges.” (David Sapsted, Telegraph, Dec. 12).
Potter v. Ford Motor
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.
More on the $500/car figure
Jim Copland writes that the $500 per car figure comes from Murray Mackay’s article, “Liability, Safety, and Innovation in the Automotive Industry” in The Liability Maze (p.199):
“In researching this paper, I persistently asked manufacturers what the cost and consequences of the rise in liability have been. In simple financial terms the answers have varied by a factor of ten, ranging from $50 to $500 per car sold.” The variance may suggest that the $500 figure is on the high side; but Mackay indicates that the costs seem to be much higher for domestic manufacturers than for importers, which may be why Chrysler sticks to the higher number. Steve Hantler, DaimlerChrysler’s assistant general counsel, tells me that the $500 estimate, being 15 years out of date, is itself probably low; he suggests that today’s liability cost is closer to $1000 per car.
Justinian Lane was kind enough to email me a link to the full Chrysler CEO Tom LaSorda speech at the Chicago Economic Club. Read the whole thing.
Judicial Hellholes 2006
The annual ATRA report is out; here’s the press release and executive summary; the PDF of the full report doesn’t appear to be on line yet.
SUV suits follow-up
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.
Atkins diet suit dismissed
U.S. District Judge Denny Chin of Manhattan has dismissed (ruling, PDF) a lawsuit against the Atkins diet people by Jody Gorran, who says after subsisting on pastrami and cheesecake while on the high-fat, low-carb diet he saw his cholesterol spike and underwent an angioplasty. Judge Chin said the hazards of those foodstuffs were well known and that dietary advice, even when accompanied by a commercial motivation, is protected by the First Amendment. (Larry Neumeister, “NY judge finds 1st Amendment protects Atkins diet against lawsuit”, AP/Staten Island Advance, Dec. 11) (via Lattman).
Judges reject Shinnecock, Paugussett land claims
In two separate cases, federal judges have rejected high-profile but long-shot claims by Indian tribes asserting ownership of land tracts in the Northeast. U.S. District Court Judge Thomas C. Platt said the Shinnecock tribe of Long Island, New York (see Jun. 13, Jun. 19 and Jun. 27, 2005), had forfeited its potential claim on 3,600 acres of high-value land in the Hamptons by waiting more than 140 years to assert possession. (John Moreno Gonzales, “Ruling aside, tribe plans to build casino”, Newsday, Dec. 5; “Judge cites passage of time in Shinnecock land claim”, Indianz.com, Dec. 6; ruling in PDF format courtesy Indianz.com). And in New Haven, U.S. District Court Judge Janet Bond Arterton brought homeowners’ ordeal nearer an end Nov. 29 by ruling against the federally unrecognized group that calls itself the Golden Hill Paugussetts, which has been asserting land claims in various Connecticut towns for 14 years. (Gale Courey Toensing, “Golden Hill Paugussetts will appeal rejected land claims”, Indian Country Today, Dec. 11).