I’m quoted by Amanda Erickson in today’s Chicago Tribune:
Posts Tagged ‘autos’
Flax v. DaimlerChrysler seat back appeal
A very belated update to our earlier posts of 2004 and 2005. As we stated in November 2004:
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. And now the rest of the story:
Update: Rose Marie Munoz v. Ford
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.
May 28 roundup
- More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today “On Deadline” via ABA Journal]
- Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
- New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
- Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
- City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
- Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
- Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
- Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
- Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
- Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
- Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]
In re Volkswagen en banc argument
There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:
Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (“Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.
The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).
In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.
En banc briefs in 07-40058, In re Volkswagen AG:
- Petitioners (Volkswagen)
- Respondents (plaintiffs)
- Product Liability Advisory Council, amicus on behalf of petitioners
- American Intellectual Property Law Association, amicus on behalf of petitioners
- Railroads, amicus on behalf of petitioners
- Law professors, amicus on behalf of respondents
- Trial lawyers, amicus on behalf of respondents
Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing
The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.
In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.
Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.
“Why we won’t be getting VW’s Lane Assist”
The automotive innovation (“gently guides the car back in lane if it senses it drifting”) has promising enough safety implications that German insurance companies offer premium discounts of up to 20 percent when it is purchased as part of a package with adaptive cruise control and park assist. No prizes for guessing why Volkswagen isn’t offering it to U.S. buyers of the Passat. “What other cool stuff have auto manufacturers dreamed up, but left on the drawing board because they fear our sharks in expensive suits?” (Edward Loh, Motor Trend, Apr. 17).
Jury not asked to blame driver, does so anyway
“A Washington state woman who sued Ford Motor over her injuries in an SUV rollover accident isn’t exactly thrilled that a jury cleared the automaker — and awarded her $6 million in damages against her sister, who was the driver of the vehicle. … The federal jury in Spokane, Wash., found Marla Bear 100 percent at fault for losing control of the SUV, in which her younger sister was a passenger. According to trial testimony, the car swerved when she looked over her shoulder to see if Crystal had her seat belt attached.” Ford’s own attorney, whether for tactical reasons of sympathy or otherwise, had advised the jury against blaming the sister. (Matthew Heller, OnPoint News, Mar. 20) (via The Briefcase).
How trial lawyers made American pedestrians less safe
In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials’ Green Book, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book’s recommendations, they are more likely to be held negligent if a speeding driver is injured on a street designed for relatively slow traffic.
Changes in the Green Book may ameliorate such design considerations in the future.
Buell-Wilson v. Ford redux
In February of last year, I wrote at length about an appalling jury verdict (June 2004) and disingenuous appellate decision in an SUV rollover case:
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).
The US Supreme Court remanded to consider in light of Philip Morris v. Williams. For whatever reason, the California Court of Appeals decision to be even more disingenuous and say “We don’t care about Williams” reaffirming the $82.6 million got much more attention. Bruce Nye has the best analysis of the “thumb in your eye” decision; Lisa Perrochet also analyzes the verdict. John Rohan is critical. Press coverage: Recorder/Law.com; San Diego Union-Tribune; Reuters; AP/SJ Mercury News. Ford will appeal.
Global positioning systems liability
I’m pretty sure I know which intersection in Bedford Hills, N.Y. is being referred to in this account; it’s a badly confusing intersection, for sure, but I don’t think I’d blame the GPS if I took a wrong turn onto the train tracks. (Peter C. Neger, “The Legal Landscape of GPS Devices”, New York Law Journal, Mar. 5)(via Elefant).