Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Ford Motor’

New at Point of Law

There are all sorts of new posts over at our sister website Point Of Law. Attorney Leah Lorber, who’s appeared on this site in the past, has just joined for a week’s worth of guestblogging contributions, including posts on a Mississippi Supreme Court case undoing the joinder of 264 asbestos cases and a Kentucky punitive award against Ford Motor (in a “park-to-reverse” transmission case). On medical malpractice, Ted Frank examines the benefits of the damage limits approved by Texas voters, Jim Copland discusses my WSJ op-ed on the Kerry campaign’s ideas for reform, and I link to an informative paper by Richard Anderson of the Doctor’s Company. Law professors Lester Brickman and Richard Painter, both experts on the ethics of contingency fees, have now completed their featured discussion of the issue.

Plus lots more, including posts by me on the ABA’s plans to push reform of jury trials; how contingency-fee litigation by the state of California is straining U.S. relations with France; Eliot Spitzer, the comparison-shopper’s friend; two posts (here and here) comparing the American way of litigation with that prevailing in other democracies; how liability law affects the way certain products smell; and who you can’t trust to explain the new overtime regulations.

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Sudden acceleration: litigation springs eternal

Fifteen years after the National Highway Traffic Safety Administration concluded that the explanation for supposed “sudden acceleration” in cars was that the drivers were mistakenly pressing the accelerator rather than the brake, trial lawyers continue to sue automakers, and now NHTSA has agreed to open an investigation into claims of unintended acceleration in Toyota and Lexus models. While an earlier wave of suits tended to blame cruise control malfunctions, the new favorite culprit is electronic throttle control systems. In lawsuits over the accidents, the car’s brakes, which can ordinarily bring a car to a stop even when its throttle is fully open, will typically be said to have mysteriously failed as the same time as the acceleration defect was manifesting itself, although nothing will be found physically wrong with the brakes afterward.

“For more than a decade, decisions usually favored car companies and blamed drivers in unintended acceleration cases, but some recent trials and court decisions reversed that. Ford Motor and General Motors each recently lost a high-profile case. … A Missouri jury last year ordered GM to pay Constance Peters and her husband $80 million for the crash of her 1993 Oldsmobile Cutlass, which accelerated 120 feet in reverse and into a tree while she was backing up. They blamed faulty cruise control. GM is appealing.” And: “The U.S. Circuit Court of Appeals in New York in 2002 reinstated a $1.1 million judgment against Ford in the crash of a 1991 Ford Aerostar. Jurors had found that the crash was caused partly by a ‘negligently designed’ cruise control system.” (Jayne O’Donnell and David Kiley, “Technology puts unintended acceleration back in spotlight”, USA Today/Detroit News, Apr. 13)(via Reason Hit and Run). For more on the issue, see Jun. 6, 2000.

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Update: Ford settles Romo case

Bringing to an apparent close a legal saga often chronicled in this space (see Nov. 26 and links from there, Nov. 27), the Ford Motor Co. has agreed to pay $23.7 million plus $10.8 million in interest for a total of $34.5 million to settle the Romo family’s lawsuit concerning a fatal rollover of a 1978 Ford Bronco. The original jury verdict of $290 million in 1999 came after a trial noteworthy both for demagogic argumentation and bizarre jury deliberations, and was slashed by an appeals court in November. (Susan Herendeen, “Ford agrees to $34.5M judgment”, Modesto Bee, Feb. 4).

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Juries not rolling over for Explorer suits

To judge from some of the press coverage, you’d think the Ford Explorer was the most sinister passenger vehicle in human history. And yet “Ford Motor Co. successfully has defended the popular sport utility vehicle in 10 consecutive jury trials.” On the other hand, the automaker has paid millions of dollars to settle Explorer cases: perhaps 1,500 of them, according to an estimate proffered by one California plaintiff’s lawyer. Ford won’t give out numbers. (“Explorer verdicts go Ford’s way”, Detroit News, Jan. 26)(see also Jan. 8).

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Updates

More developments in previously covered controversies:

* Where credit is due dept.: lawyers for Patrick Hayashi, whose squabble over ownership of a souvenir Barry Bonds home run baseball grew so costly as to eat up the ball’s auction value, agreed to roll back their fees so that their client would emerge from the case with something of value other than the experience (Gwen Knapp, “Finally, in Bonds ball case, someone shows some class”, San Francisco Chronicle, Dec. 30)(see Jul. 1).

* National talk show host Joe Scarborough, criticized here among other places for naming a company as “Rat of the Week” without disclosing that his partners at Pensacola’s Levin Papantonio were actively suing it (see Sept. 15), says he’s now stopped receiving a stipend from the law firm, though name partner Fred Levin says Scarborough remains associated with the firm and may even do a commercial for it (Amber Bollman, “Scarborough: No pay from law firm”, Pensacola News Journal, Dec. 30; Howard Kurtz, “Bad News Bearers: Up To No Good?” Washington Post, Dec. 29)(low in piece) (via Lori Patel, Law.com).

* After nearly three weeks of testimony and an hour and a half of deliberations, a jury has rejected a lawsuit against Ford Motor Company over the death of New Jersey state trooper Scott Gonzalez (see Oct. 27, 1999). Gonzalez was killed in a shootout with a mental patient, and lawyers for his widow had alleged that he might have survived had his Ford Crown Victoria been designed so that a crumpled fender did not block his door from opening; they also sued the killer’s parents (who were released from the suit shortly before the recent trial) and Hechler & Koch, the maker of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; the latter suit resulted in a settlement providing less than $50,000 to Maureen Gonzalez. (Jenna Portnoy, “Jury rules Ford not liable in trooper’s shooting death”, Easton, Pa. Express-Times, Dec. 19)

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Romo roundup

The LA Times article on the California court of appeals decision in Romo v. Ford Motor Co. (see Nov. 26 and links therein) shows how far the media has tilted in coverage of tort reform: there are lots of unchallenged complaints from the plaintiffs’ attorneys and their interest groups that a $29 million total award won’t be enough to deter wrongful behavior and will allow companies “to avoid liability and responsibility.” This is mathematically nonsensical: if 1 in 10,000 Ford Broncos were subject to such an award over the course of their lifetime, it would wipe out Ford’s profits and then some. And if fewer autos than that cause damage, then perhaps Ford’s behavior isn’t so “reprehensible”, notwithstanding the characterization of the appeals court? (Indeed, three of the twelve jurors refused to join the Romo verdict.) No one is quoted questioning whether $29 million is too much to award against an auto company for a 1978 Ford Bronco that had 200,000 miles on it at the time of the accident and which exceeded federal safety standards put in place years after the 1993 accident. (Lisa Girion and Myron Levin, “Appellate Court Cuts Huge Crash Case Award”, LA Times, Nov. 26). The good news is that the California Court of Appeal recognized that the size of the corporation is not grounds on which to award punitive damages: though the court does not say so, to base punitive damages on such a metric effectively punishes corporations for being big than for a particular course of conduct. (Washington Legal Foundation amicus brief before U.S. Supreme Court).

Relatively uncommented on: the same day the same California Court of Appeal reversed a $10 million punitive damages award against Ford in Johnson v. Ford, where a couple bought a used car and had to replace the transmission twice. The couple will still walk away with over $170,000 from Ford and the dealer for their trouble. Anyone think that a $170,000 hit on the sale of a used Taurus isn’t enough to deter selling used cars with problems? Update Feb. 15: case settles.

Disclosure: I represent Ford Motor Co. in other litigation.

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Appeals court slashes Romo punitives

“A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people.” The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, “Court reduces $290 million verdict against Ford to $23.7 million”, AP/San Francisco Chronicle, Nov. 25). “As we read State Farm ? the legitimate state goal that punitive damages may seek to achieve is the ‘condemnation of such conduct’ as has resulted in ‘outrage and humiliation’ to the plaintiffs before the court,” Justice Steven Vartabedian wrote for [a unanimous panel of California’s 5th District Court of Appeal]. “It is not a permissible goal to punish a defendant for everything it may have done wrong.” (Mike McKee, “Punitive Damages Take Big Hit”, The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff’s arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.

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Back at the old test-rigging game

Ten years after litigation consultants helped NBC News stage fake “tests” which supposedly proved a GM truck vulnerable to fuel-tank puncture (see “It Didn’t Start With Dateline NBC“, our 1993 effort), you have to wonder whether much has changed. “Ford Motor Co. says Dallas rigged a crash test that purported to show that the Crown Victoria is vulnerable to deadly fuel tank explosions even when equipped with safety gear. Ford said its inspection of the car used in the test showed that items in the trunk had been welded together, including a crowbar that was aimed at the back wall of the fuel tank.” The test was paid for by personal injury lawyers representing the city of Dallas in a lawsuit over the death last year of police officer Patrick Metzler, who died when his Crown Victoria was rear-ended by a drunk driver at high speed. (“Dallas rigged Crown Victoria crash test, automaker alleges”, AP/Fort Worth Star-Telegram, Sept. 18.) In the 75-mph test, the vehicle’s trunk was filled with “items that the city said were commonly found in a police officer’s trunk”, which turned out to include a crowbar welded to a vehicle jack — just the sort of contraption an officer might lug around to traffic stops, no? Ford, which discovered such details only later on when it was allowed to inspect the test vehicle during litigation, “criticized the city for not disclosing the artificial conditions when reporting its testing results.” Reinforcing the sense of deja vu, Center for Auto Safety head and trial lawyer chum Clarence Ditlow publicly defended the use of the peculiar trunk contents as legitimate, the same way he defended NBC’s use of hidden rockets back then. (“Ford Questions Dallas Crash Tests”, AP/Primedia, Sept. 18; “City calls Crown Victoria tests ‘valid'”, Dallas Business Journal, Sept. 18). “Mark Arndt, the president of the company that oversaw the testing, is himself an expert witness for the City of Dallas in its lawsuit against Ford. Arndt makes his living as a hired gun testifying against carmakers.” (Mike Scott, “City’s crash test spawns controversy”, reprinted at Houston Citizens Against Lawsuit Abuse site). For trial lawyers’ side on the Crown Victoria controversy, see Ditlow’s Center for Auto Safety; Dallas City Hall; and Crown Victoria Safety Alert. For Ford’s side, see CVPI.com.

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Firestone II

The National Law Journal also has coverage of a “groundbreaking” Judge Easterbrook decision out of the federal appellate court in Chicago, In re Bridgestone/Firestone Inc. Tires Products Liability Litigation, holding that a federal decision against the creation of a nationwide class precludes state courts from deciding to the contrary. (John Beisner of my law firm, O’Melveny & Myers, represented Ford Motor Company and argued for the defense.) The decision is important because it limits the ability of class action plaintiffs’ attorneys to judge-shop; if a federal court denied the certification of a nationwide class, the same attorneys could go from state to state seeking a state court that would in a game of “heads I win, tails don’t count.” (Gary Young, “7th Circuit Limits State Court Certification of Class Actions,” National Law Journal, July 8.)

Many thanks to Walter Olson for giving me the keys to the website for the week. I greatly enjoyed the experience.

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