In 2001, six people were in a 1995 Ford Aerostar driving from LA to Las Vegas when a twice-patched tire blew out. The van lost control, and flipped, killing one passenger, and paralyzing plaintiff Fidelia Pillado. This was, she said, Ford’s fault, but a jury didn’t buy her theory that her seatbelt failed without any physical evidence of damage to the seatbelt, or that the suspension was broken before the tire blew out. A roof defect claim also went nowhere. She had sought $18 million in compensatory and punitive damages. (Chuck Mueller, “Jury clears Ford in crash”, San Bernandino Sun, Jan. 13).
Posts Tagged ‘autos’
Rollover Economics II
Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.
I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn’t explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to “set the record straight,” Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.
To take a non-obvious one, Lane’s description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by “backfired”): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford’s objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane’s other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.
But let’s give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can’t bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.
“Rollover Economics: Arbitrary and Capricious Product Liability Regimes”
My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:
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.
Cost-benefit analysis? What’s that?
AEI research assistant Phil Wallach writes:
On today’s Washington Post op-ed page, Peter J. Woolley advances the following argument:
Cars, trucks, and getting where you need to go faster than walking:
Costs: Catastrophic! An “annual tragedy”! 44,000 deaths each year!
Benefits: Uh…“Radical solutions in the form of regulation, [taxpayer-funded] investment and enforcement”:
Benefits: Great! Should be a “cause celebre”! We can save these people!
Costs: Uh…Nothing like clear-headed, even-handed thinking to find the “story of the year.”
Of course, the way to eliminate 90%+ of fatalities is the reductio ad absurdum position to have a 10 mph speed limit. Woolley specializes in Japanese politics, so it’s not clear why he gets prime Washington Post space to argue thoughtlessly for a multi-billion-dollar reallocation of the American economy.
Chapman v. Ford Motor Co.: McMath speaks
Plaintiffs’ attorney Sandy McMath responds in the comments to our discussion of the Chapman v. Ford Motor Co. case. Note particularly the bait-and-switch that assumes Overlawyered readers are innumerate.
“Blaming cars in California”
Steve Chapman on attorney general Lockyer’s suit against automakers for facilitating carbon emissions:
So serious is the harm from this conduct that Lockyer wants automakers to … keep doing it. The usual remedy for a public nuisance–say, someone in a residential neighborhood holding raucous parties every night till dawn, or letting vicious dogs run loose–is to stop it. But the state doesn’t propose that they quit selling their products to Californians or switch to zero-emission cars. Instead, it asks the manufacturers to turn over large sums of money while continuing to commit their terrible wrongs.
That should be a clue to something Lockyer passes over: While cars may have drawbacks, they also have benefits, and most people would not be willing to give up those benefits or pay a lot more to enjoy them. That combination of virtues and vices makes autos well-suited to regulations reflecting a democratic consensus, and a poor candidate for control by the courts.
Read the whole thing (Chicago Tribune, Dec. 21).
Update: Sudden acceleration: litigation springs eternal
In 1995, 70-year old Marlene Fett pressed the wrong pedal on her Lincoln Town Car, and smashed into a carousel in front of an Arkansas Wal-Mart, killing one boy and severely injuring his brother. The Chapman family settled with Fett, and blamed Wal-Mart and Ford, Wal-Mart on a theory that it should have anticipated the possibility of a car hitting a merry-go-round at 30 mph, and Ford on that old plaintiffs’ lawyer claim of “sudden acceleration,” a “defect” that somehow is six times more likely to strike elderly drivers. The case made the front page of USA Today in 2004 (resulting in an Apr. 19, 2004 Overlawyered story), though the newspaper kindly noted the lack of science behind the claim:
Little Rock attorney Sandy McMath, who is representing the Chapmans, says the Town Car’s cruise control put Fett on a “rocket ship to Mars” after she pulled out of her parking place. He petitioned NHTSA to investigate what he says is a defect in Ford and Lincoln models’ cruise control that causes the accelerator to stick.
In a lengthy 1999 [sic] report denying McMath’s petition, NHTSA investigator Bob Young wrote that even if such an occurrence took place and didn’t leave evidence of a mechanical malfunction, the situation should be reproducible through in-vehicle and laboratory tests. None of NHTSA’s testing could do so.
The Wal-Mart theory was similarly bogus, and refuted when an expert demonstrated that the plaintiffs’ proposed safety measure wouldn’t have stopped the speeding car. (For Illinois’ take on premises liability for auto accidents: Jun. 23.) An Arkansas jury also rejected the claims, and, after years of litigation, now the Arkansas Supreme Court has affirmed that decision in a not-especially-interesting Dec. 14 opinion, Chapman v. Ford Motor Co. Wal-Mart and Ford are still out the hundreds of thousands of dollars they spent defending themselves in the lottery litigation, not to mention the cost of bad publicity from sudden acceleration claims and quacks like the Center for Auto Safety trumpeting a non-existent problem. Arkansas acquits itself better than a South Carolina federal court did in a story we covered Aug. 7.
Bountiful bankruptcies: Collins & Aikman
More than $100 million in professional fees has been billed so far in the auto-parts maker’s insolvency. (Lattman, Dec. 14).
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.