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Run-Away Jurists

A Series Of Verdicts Against Ford Motor Company
Have Raised Serious Questions As To Whether
A Corporation Can Receive A Fair Trial.

Part 2 of 2

By Perry Hicks

"It is decidedly unchristian to win at any cost."

Kenneth Starr

     Sky-high product liability jury awards are sometimes attributed to greedy or ridiculous plaintiffs but more often than not the blame falls on lawyers. Hadensville, Virginia attorney, Watkins Ellerson bristles at this notion that lawyers should be blamed for Lawyering.

     Ellerson: “This prevalent hostility toward plaintiff's lawyers is unconscionable.  First, it is easy to hate lawyers.  Most people do, especially rich lawyers, until one gets in some real trouble. Then they go looking for the meanest junkyard dog they can find.  It is still bigotry, though:  A well-to-do-lawyer means a successful one; possibly one who knows what he or she is doing.

     “And juries of ordinary folks must be agreeing if they are handing out these supposedly insane verdicts.  The fault may well be with the juries or the judges, but when is it ever proper for a lawyer to decide what is "best for society" and sell out the client?  That is what some people are suggesting, and it is patently stupid.

     Ellerson’s comments bring to mind two trials where I was a character witness. In both cases it was obvious, judging by the minimal defense they mounted, that neither defense counsel believed in their client. In other words, both lawyers decided the case in their own mind and so the trial was but a mere formality.

     Ellerson: “In a jury trial, judges decide law and juries decide facts.  Negligence, guilt, intent, etc. are fact issues, not legal issues.  Whether or not a particular piece of evidence comes into the record is usually a legal issue decided by a judge only.  The jury then must "weigh" the evidence and decide what is persuasive.  A judge is not supposed to overrule a jury verdict on the facts unless it is clearly contrary to the evidence presented and allowed.”

     Here is where the difficulty comes in with product liability cases: Both judge and jury may not be technically competent to decide the facts and so determine the truth. In another respect, the denigration of corporations by the popular media may predispose both judges and juries to favor plaintiffs.

Run-Away Crown Victoria

     As reported by the Associated Press, Virginia Manigault contends that her husband, Leon Manigault, 77, suffered a hip injury and was left in a semi-comatose state “because Ford was too cheap to fix a design flaw.” The 1987 Crown Victoria was alleged to have suddenly accelerated out of their driveway into a neighbor’s house in 1993.

     The plaintiff’s case was based on 2 assertions: The cruise control could have opened the throttle; and the amount of brake pedal pressure it took to stop this car was excessive. From my expert perspective as both a Master Automotive Technician and a former Ford Motor Company Technical Trainer, both arguments are specious. The Crown Victoria is known for its luxury ride and ample power assists. Furthermore, the cruise control system has redundant safety features.

     The throttle on a 1987 Crown Victoria is not opened by an electric motor, but a vacuum actuator. This is important in that the cruise control can be mechanically defeated through a vacuum dump valve. Stepping on the brake pedal disengages both cruise electronics and independently vents vacuum to the throttle actuator.

     In order for Manigault’s cruise to seize control of the throttle, five separate faults would have had to occur simultaneously:

1.      The cruise would have had to energize itself.

2.      The cruise would have had to have seen an erroneous speed signal above 25-35 mph.

3.      The brake light circuit providing electrical disengagement would have had to fail.

4.      The brake pedal vacuum dump valve would have had to fail.

5.      The service brakes would have had to fail.

     The above theoretical faults would have had to be transient for no defect could be found under subsequent technical examination.

     The controversy over the required brake pedal effort is patently absurd. Crown Victorias not only have generous power brake assist, the braking system will keep the car from moving even when the engine is intentionally held at wide open throttle: Auto technicians routinely “power-brake” cars (simultaneously pressing accelerator and brake pedals to the floor) in order to test automatic transmission systems. Thus, no subject expert could truthfully assert that a driver would have been unable to stop the car- even at wide open throttle.

     Supposing that Rev. Manigault could not keep his car under control, the question remains, why didn’t he just turn the ignition off?  Does the driver no longer have any responsibility for keeping his or her vehicle under control? Could the Reverend simply have had a stroke as he attempted to leave his driveway? Would that be Ford’s fault?

     Perhaps it was Leon Manigault’s age, his medical condition, or his standing as a Cleveland minister that led Ford to settle; perhaps it was the way Ford was being demonized. Whatever the reason, justice was not served: In my view, there is nothing wrong with the car’s cruise control design and Ford should not have been held liable. Still, Ford threw in the towel and settled the case out of court.

Question Of Position

     On June 15th 2000, Rhonda Sasser’s leased 2000 Lincoln LS crossed a highway center line to strike an oncoming Ford F150 truck. Onboard were her two daughters, Kelsey age 6, and Alexandra age 8. Tragically, Kelsey suffered a T2-T3 spinal cord injury. The Sassers sued Ford Motor Company alleging that Kelsey was seated in the center position of the back seat and that the seat back failed to remain latched thus causing Kelsey’s injury.

     However, the accident report tells a different tale: Kelsey was seated in the front seat and court testimony from the first responders, Lt. Wendell Parker and Deputy Jean Driver supported the report. Witnesses, James Gallon and William Hailey also testified that they saw Kelsey in the front seat and Alexandra in the rear seat.

     Even more interesting was that the plaintiff’s contention that the rear seat latch caused the seat belt shoulder harness to slide out of position on Kelsey’s chest. This scenario is not possible with her being located in the front seat. Court evidence also showed that the rear seat back was latched at the time of impact.

     Ford contends that Kelsey’s injuries resulted from her being struck by the air bag deployment because her shoulder harness was positioned behind her back.

     Unbelievably, the jury awarded the Sassers $14 million in punitive damages on top of the compensatory damages of $33.9 million! That is a total of $47.9 million for an accident where the evidence exonerates Ford. By the way, to my knowledge there has not been another claim regarding the LS rear seat latch.

     Ellerson: “In Va. (and a few other states) any evidence of the plaintiff's own negligence operates as a complete bar to the recovery of the plaintiff.  However, in a case involving a child as plaintiff, there are obviously difficult issues regarding contributing fault.  The mother's negligence in strapping the child in is not imputable to the child.  It makes the mother (and HER insurance co.) liable to the child.  It may also intervene to block liability of the manufacturer.  In such cases, liability is shared and the jury may well find both defendants fully liable, or it may apportion the damages if so instructed by the trial judge.”

     To put this verdict in consumer terms, just a single judgment like this adds nearly $1400 to the price of each and every Lincoln LS- providing that the market will bear the price. (Other manufacturers may speculatively raise their prices as well.) It also opens the door for more specious law suits by defaming a superb automobile: The LS has an abundance of advanced technology including a suspension system designed by a team of race car engineers. In my opinion, without being propelled by a primary collision, to cross a highway centerline in a Lincoln LS can mean only one thing: Driver error.

     If the reader wants to mock me by crying “poor, poor mega-corporation,” remember that what juries do to corporations can also be done to you. By the tortured logic shown in this verdict, the deep pocket must always pay- regardless of culpability. By the way, this is the legal model used in many countries, particularly in the third-world.

     The jury obviously felt sympathy for the plight of such a young victim and may also have empathized with the mother who sought to assuage her own guilt by transferring her responsibility for the tragedy onto the car manufacturer. Ford may be a corporation, but that doesn’t justify impugning the company’s reputation and raiding its coffers. The law cannot claim to be just while at the same time being capricious.

     Ellerson went on to tell me that if a mother had come to him with a case similar to Sasser vs. Ford, he would have advised the mother to get her own attorney. And if the mother told him she would seek counsel elsewhere?

     Ellerson: “If I thought the interests of the child were not going to be addressed then I may appeal to the court my belief and ask that a guardian ad litem be appointed.”

Question Of Who Leaked What

     On October 9th, 1999, John and Shirley Mathes along with their grandson, Jacob Mathes, were traveling west on Interstate 70 near Warrenton Missouri. Their 1997 Ford F150 was pulling an RV equipped with propane tanks mounted on the tongue. A tractor trailer owned by Sher Express jackknifed just ahead of the Mathes blocking all lanes. The Mathes struck the tractor-trailer at 60 mph and was in turn struck by a GMC Jimmy traveling at 50 mph. All three vehicles were described as driving too fast through a construction zone.

     Media reports claim Sher Express settled their liability for the value of their insurance policy. However, Kent Emison, the Mathes attorney, contended that Ford had inadequately shielded the gas tank even though the truck was designed to withstand a crash 3 times as severe as the Federal safety standard. To bolster this claim, plaintiff’s counsel went on to assert that other Ford truck models had different shielding.

          This argument is misleading in that any vehicle design is a compromise of mostly diametrically opposed factors; safety and performance vs. economy and emissions. Ford places the F150 gas tank inside the frame rails under the pickup bed because it is the safest location. Also, a 2 wheel drive truck does not have a transfer case and front drive shaft in close proximity to the fuel tank as would a 4 wheel drive. Other design aspects might also require different style shielding. Ipso facto, changes to other truck model gas tank shields does not imply anything was wrong with the Mathes’ truck; nor does any design changes necessitated by litigation.

     Ford argues that there have been no other claims lodged against the F150 fuel tank and the force of the impact was equivalent to dropping an F150 off the roof of a 12 story building. Also, as would be expected in an accident of such horrific forces, all three vehicles leaked fluid and ignited. Postmortem medical examination indicated that the Mathes died instantly on impact, not by the ensuing flames.

     Ford lost the suit and was ordered to pay $12.5 million dollars for an accident that they did not cause, for deaths they did not inflict, for maintaining a fuel system that had not a single complaint in 7 years of service. Still, appealing the case may be problematic.

     Ellerson:On appeal, the parties may contest the trial judge's decisions on the admission or refusal of evidence, instructions, whatever.  Judges instruct the juries as to the applicable law, and then the verdict must be based on findings about the factual evidence under application of the law.  It is more art than science, to be sure.  Most jury decisions in most states must be unanimous.”

     This brings us full circle back to the point of where the responsibilities of the presiding magistrate. If the lawyers are to lawyer aggressively and the jury may decide based on emotion rather than fact, then the judge is the last line to see that justice is done.

Ellerson: “Now, the judge may allow the jury verdict to occur; then the judge may find that the facts do not support the verdict per these standards and set the verdict aside, rather than to prohibit the jury from ever deciding.  There are different standards for each tactic, but the safer course is to allow the jury to decide, then for the judge to overrule the jury.  Therefore, if the appellate court disagrees with the trial judge, it can merely reinstate the jury decision.”

     Both Sasser and Mathes verdicts came in early 2004 and are currently under appeal.

For Part One....Click Here

Perry Hicks is a former Mississippi Coast resident and was a correspondent for the old Gulfport Star Journal. He has appeared on Fox News Channel’s “The O’Reilly Factor.” Perry has also hosted his own radio talk show on the auto industry with a mix of politics, and is a former Ford Motor Company technical trainer. He currently works as an Associate Professor of Automotive Technology at J. Sargeant Reynolds Community College in Richmond, VA. 

Contact the Author: arielsquarefour@hotmail.com