Products Liability

August 23, 2010

$31 Million Rollover Verdict Overturned

The South Carolina Supreme Court overturned a $31 million verdict in a Ford rollover case stemming from a catastrophic accident in 2001 that caused brain damage to a 12-year-old boy. This was a hard case. A mother was driving with four children who were not wearing seat belts and the mother took her eyes off the road and swerved to get back on the road. The question was whether the design of the Ford Bronco was a substantial contributing cause to the child’s injuries.

Obviously, a jury found that it was and sent a powerful message to Ford: $16 million in actual damages and $15 million in punitive damages.

The South Carolina Supreme Court overturned the verdict for a lot of reasons. I won’t go into all of them but there are two reasons set forth for the court’s reversal that I think are of particular interest.

First, the court found that it is improper for lawyers in closing arguments “to arouse passion or prejudice.” The court cites these statements made during the plaintiff’s lawyer’s closing argument as improper:

1. “This is how Ford looks at this. That little bit of thirty people being killed every year didn’t matter. Those thirty people, those thirty extra people getting killed in a year didn’t matter to them because it was just a little bitty number.”

2. “It does matter about those people getting killed. Those thirty people do count. Those thirty people–that’s thirty more people that got killed that year. If you expect these vehicles to last about twenty years, that’s six hundred more people getting killed using this vehicle as opposed to a Chevy S-10 Blazer. That’s serious.”

3. “And that doesn’t count the paralyzed people, the quadriplegics, the people with serious injuries, the thousands of people that have been in these events because of this rollover propensity of this vehicle that they knew about, and they knew it since day one but they chose profit over safety every time because they looked at it as numbers. They didn’t look at it as lives, as people.”

4. “I submit to you that the evidence is that they did it because they thought it was a little, small number. . . . [T]hey did not look at it as thirty lives a year[], they didn’t look at it as six hundred lives. That’s how they should have looked at it, but that was not how they did it.”

5. “They got together at the highest levels of Ford Motor Company and they made a judgment that rather than delaying and improving the Bronco II, they were going to sell the vehicle as it was and that they were going to risk people’s lives and they were going to risk serious injuries like we have here today. They were going to risk people’s brains.”

6. “Jesse Branham is here today with a brain injury and six hundred other people, or however many it is, lost their lives, and numerous others have brain injuries or are paralyzed, quadriplegic, have extremely serious injuries. We believe that you should tell Ford Motor Company what you think about this kind of thing.”

The court found these improper because they relied on evidence that was inadmissible, because it asked for damages for harm to others, and because it improperly inspired the jury to act on passion as opposed to reason. These arguments are flawed.

If the evidence is inadmissible, then that is the basis to overturn the verdict. There is no need to tie it to an improper closing. Presumably, this would be true where evidence was inadmissible.

The court believes these statements led to asking for damages for harm to others. But the attorney is asking for punitive damages. We don’t have punitive damages in Maryland without proof of actual malice – which eliminates 99.999% of cases like this from being considered for punitive damages. But if you are asking for punitive damages, give the context of why there was a risk of harm to more than just the plaintiff. (Plaintiff’s lawyer also got into evidence the salaries of certain executives at Ford which sounds incredible. But, again, our law firm has never handled a punitive damages case so I really can’t speak to the standard for admissibility in these cases.) Continue reading

April 26, 2010

Should You Ask for an Amount in Opening?

by Ronald V. Miller, Jr.

Paul Luvera discusses a tough issue for Plaintiff’s lawyers: do you clue the jury in during your opening statement how much you will ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I will ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I’m getting them used to the idea without having to spit out a number with no evidence.

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is a cap case and minimal or no economic damages, you can dial back on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money – which is what a plaintiffs’ lawyer does by definition – you do lose some measure of credibility with a jury.

One issue in this post – raising the damage amount in voir dire – is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

April 13, 2010

My Mediation Article with Judge Gordy

by Ronald V. Miller, Jr.

Yesterday, the Maryland Daily Record published the first of a three-part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Look at yesterday’s article, and look in coming editions for the final two parts.

March 25, 2010

Ford Class Action Denied

by Ronald V. Miller, Jr.

A Maryland District Court has denied a class action on behalf of Maryland residents who own certain model years of Ford Explorers, Mercury Mountaineers, and Ford Windstars.

This is not a personal injury lawsuit. Plaintiffs’ lawyers claimed front seats in the class vehicles are defective because they are prone to collapse rearward in moderate speed rear-impact collisions. In fact, the proposed class action would exclude everyone who has suffered an injury.

The plaintiffs’ suggested class is individuals who own vehicles that cannot withstand 20,000 inch-pounds of torque without deforming backward. (Admittedly, I don’t fully understand this but let’s proceed on pretending that I do.)

March 23, 2010

Baltimore Lead Paint Lawsuit to Continue

by Ronald V. Miller, Jr.

The Maryland Court of Appeals found today in a 5-2 opinion in a lead paint case that an individual member of a Maryland limited liability corporation (LLC) can be personally liable for torts committed on behalf of the LLC.

The case, Allen v. Dackman, is a classic Baltimore lead paint case, another saga in the tragedy of children suffering brain injuries as the result of ingesting chipping, flaking, and/or peeling lead-based paint.

The owner defendant sought refuge from personal liability because his acts were on behalf of his creatively named LLC, Hard Assets. The trial judge granted summary judgment. The Maryland Court of Special Appeals, in an opinion by Judge Zarnoch, affirmed:

November 4, 2009

Subsequent Remedial Measures: New Opinion from Ohio

by Ronald V. Miller, Jr.

Sean Wajert’s MassTort Defense Blog (c/o Torts Prof Blog) has an interesting post on a new opinion by the Iowa Supreme Court on whether you can admit subsequent remedial measures in cases that sound both in negligence and strict liability.

The Iowa court found that Plaintiff’s design defect and failure-to-warn claims involving the jack pin used on a boat trailer sound in negligence, rather than strict liability. Interpreting an Iowa law that, like Maryland’s law, is substantially similar to Federal Rule 407, the court held that Rule 5.407’s carve-out for strict liability in tort and breach of warranty claims does not apply to designed defect claims, but is intended only for product liability claims alleging a manufacturing defect.

Mr. Wajert supports the court’s holding in his blog post:

September 1, 2009

Maryland Motorcycle Accident Verdict Overturned

by Ronald V. Miller, Jr.

On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement over-magnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case interest Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.

The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries that required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company regarding the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff’s accident lawyer further argued that is Cecil County’s duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years ago was no defense. There is a duty imposed on Cecil County when a utility pole is in such proximity to the road that it was an “accident waiting to happen.” Continue reading

June 18, 2009

New Massachusetts Opinion on Duty and Foreseeability

by Ronald V. Miller, Jr.

A hospital did not breach a duty of care as a matter of law to a police officer who suffered injuries while responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts’ highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, another car hit the Plaintiff’s police car, causing what were apparently serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff’s theory was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a “special relationship” the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by “impaired” patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys to support Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., to support the hospital.

The Massachusetts high court found that both theories were no distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a non-patient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to “an innocent third-party bystander” was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident sued Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications. Continue reading

June 1, 2009

Denture Cream Lawsuits: An Overview of the Problem

by Ronald V. Miller, Jr.

Zinc is common enough—it is even a dietary requirement. Humans should typically ingest between eight and eleven milligrams per day (often through red meat, nuts, and grains). However, lawsuits alleging zinc toxicity of denture creams are showcasing how too much of a good thing can be harmful. A study in Neurology reports that some patients who used denture cream received exposure to at least 330 milligrams of zinc daily—far more than the maximum daily allowance of 40 milligrams. This and other studies form the basis for many of the existing denture cream lawsuits.

There are approximately eleven denture cream lawsuits filed against Glaxo Smith Kline and Proctor and Gamble for their denture cream products—Poligrip and Fixodent. The denture cream lawyers allege that the denture cream manufacturers failed to appropriately warn consumers about the risks of zinc toxicity. One defense is predictable—the plaintiffs did not use the product under the instructions. However, that defense lawyers’ common argument – blame the victim – ignores the fact that much of the denture-wearing population (34 million Americans) have somewhat ill-fitting dentures. The only way to keep them in place is a generous application of denture cream. This is common knowledge. They never warned those people of the dangers of using denture cream beyond the instructions. From a consumer standpoint, a product that goes in your mouth must be safe to use. Who among us would think of a problem like zinc toxicity from denture cream?

So, here’s the science: zinc in denture cream is absorbed through the gums. High levels of zinc inhibit copper absorption, which can cause a copper deficiency and anemia (weakness). It can also reduce the function of the immune system. The more serious effects include paralysis and nerve damage. Symptoms can also include numbness or tingling, and lack of balance. One plaintiff claiming injuries from denture cream, a man from east Texas, can barely walk, and only with support.

May 5, 2009

Medicare Liens

by Ronald V. Miller, Jr.

We can hold hands and agree with the Drug and Device Law Blog on few things related to drug and medical device litigation but this is one: we hate Medicare liens and the government is making life even more difficult for parties on both sides of the v. As usual, they have a very complete post laying out this issue, focused on the defense lawyers’ perspective but much of it applies to plaintiffs’ lawyers.