Posted on 07/31/2009 12:58:36 PM PDT by frithguild
An appeals court on Wednesday upheld a product liability verdict against Ford Motor Co. for $8 million in compensatory damages and $42,050 in punitives, despite the plaintiff's contention that the award was lopsided because Ford's lawyer was allowed to tell jurors about the carmaker's financial straits and layoffs.
The appeals panel in Zakrocki v. Ford Motor Co., A-5769-06/5799-06, did not discuss whether the defense attorney was wrong to mention the potential impact of punitives on Ford employees but it upheld the trial judge's decision to limit evidence about Ford's finances.
A Monmouth County, New Jersey, jury found that a defective throttle on a 1997 Ford Explorer caused the rollover accident that left Rebekah Zakrocki with a useless right arm.
Zakrocki, then 22, claimed her throttle jammed while she was driving north on the Garden State Parkway on Nov. 10, 2000, and when she pressed down hard on the gas pedal, the car lurched forward, causing her to lose control and hit other cars before rolling over.
The crash nearly severed Zakrocki's right hand and tore out the nerves connecting her spinal cord to her arm. She had 21 operations, including multiple muscle, vein, nerve and skin grafts.
The jury blamed the accident on a defective throttle, rather than a tendency to roll over and found $10,626,480 in damages, including $8 million for pain and suffering, but deemed Zakrocki 28 percent at fault because she was not wearing a seat belt. Half the liability was assessed against Ford and the other 22 percent against Freehold Ford, the dealer that sold Zakrocki the Explorer.
The main issues on appeal concerned punitive damages.
Ford argued they should not have been awarded, while Zakrocki contended that Superior Court Judge Jamie Happas should have granted a new trial because the amount was insufficient to serve their purpose of deterrence.
Each side alleged misconduct by the other side's lawyer during the 2007 trial.
Though the panel found counsel for both sides said things they should not have, it upheld the verdict because Happas gave curative instructions and there was no prejudicial impact.
Ford trial counsel Thomas Hinchey told the jury during his opening statement that "large payments in lawsuits hurt companies" by decreasing their ability "to create new jobs, give good benefits to factory workers, to pay pensions, to pay dividends to shareholders." He also said the large compensatory damages award was punishment enough because Ford's actions were not malicious and punitive damages would punish Ford employees who had nothing to do with the throttle.
Hinchey also indicated punitive damages would enrich not just Zakrocki but her lawyers.
The per curiam unpublished opinion by Judges Philip Carchman, Jack Sabatino and Marie Simonelli upheld Happas' decision to limit evidence about Ford's finances to 2000, the year of the accident, and 2007, the year of the trial, saying references to the intervening years would be needlessly cumulative.
The panel was unperturbed by Hinchey's remark about part of the award enriching Zakrocki's lawyers, calling it "irrelevant to the willfulness of Ford's misconduct or the amount of damages needed to punish and deter it" and "unremarkable because the existence of contingent fee arrangements in tort cases is a matter of common knowledge." Disparaging opposing counsel or appealing to antipathy against lawyers is "unlikely to cause reversible prejudice if it is brief and isolated," the judges wrote.
They also found no reason to reverse based on the compensatory-punitive mismatch, stating there is no minimum amount for punitive damages or fixed proportional relationship.
The court also considered the impact of statements by Zakrocki's counsel, Barry Eichen, especially his questioning of a defense witness in areas Happas had told him not to go.
The witness, Robert Orozco, who was driving near Zakrocki right before she crashed, described her during his deposition as driving erratically and speeding.
With Orozco supposedly unavailable at the time of trial, Ford was reading the deposition transcripts to the jury when Eichen informed the court he had just reached Orozco who told him that defense counsel said they did not need him to come to court and would use his pretrial testimony instead.
Eichen complained that he agreed to the readings only because Ford lawyer James Dobis had advised him Orozco was unavailable.
Dobis claimed he had been unable to reach Orozco, but then "lo and behold" he had just called the office.
Happas then required Orozco to testify in person and she forbade both sides from discussing what had happened.
But Eichen tried to bring it up on cross-examination, stating, "Mr. Dobis and you spoke and he told you don't come in unless --" before defense counsel objected and Happas scolded Eichen for disobeying her.
Eichen claimed he thought she was not excluding the fact that Orozco had a prior conversation with defense counsel, only that it took place by phone, but the appeals court called his justification "weak," adding he only made things worse at oral argument by trying to excuse his words to Orozco based on "alleged misdeeds by defense counsel."
Still, it found no error in Happas' denial of Ford's request for a mistrial because her jury instructions "minimized the impact of the revelation by implying that Orozco's conversations with counsel were unremarkable and to neither side's advantage."
The court also rejected Ford's challenge to other comments made by Eichen during his closing, finding that they "did not exceed the bounds of permissible argument in summation."
Among other things, Eichen raised doubts about the credibility of Ford's statistics on reported throttle incidents; questioned Orozco's credibility based on the different account he gave police at the scene; mentioned the $77 million paid to a defense expert, a former Ford employee, for testifying in more than 100 cases for the company; contrasted his own expert as "a regular guy"; termed "ridiculous" a defense expert's suggestion that Zakrocki's severe shoulder injury might have resulted from traction at the hospital rather than the accident; and implored jurors to base their award on "human decency."
The failure of Ford's lawyers to object at the time also indicated the remarks were not overly prejudicial, said the court.
Ford's lawyer on appeal, Douglas Eakeley of Lowenstein Sandler in Roseland, says he is reviewing the decision. Hinchey, of Campbell, Campbell, Edwards & Conroy, in Wayne, Pa., and Dobis, of Dobis, Russell & Peterson in Livingston, did not return calls.
Eichen, of Eichen, Levinson & Crutchlow in Edison, says Dobis's lie to him and the court about Orozco's availability "and somehow it was turned around on me that I asked a bad question."
He says he will consider seeking an appeal on such issues as Hinchey's mention of plant closings and layoffs and Happas' exclusion of evidence that Ford recalled 1997 Explorers because of stuck throttles six weeks after the crash.
Upheld because the government is trying to eliminate its competition in the car business.
Why don’t they appeal saying that federal judges have a conflict of interest in ruling on car manufacturers because of their ownership interest in GM??
That would be a trip!
How do you hold a DEALER responsible at all? Unless they had done repair work on that throttle and screwed it up, how are they liable for a defect from the factory?
Also, no seatbelt? I’d put that at being far more responsible for the extent of her injuries due to the accident than anything else.
Sounds reasonable. So if I understand it Ford has to pay $4 million, and I’m guessing it is contractually obligated to indemnify the dealership for its $2 million. But this can differ by state.
I was in heavy traffic on a 2 lane highway coming up to a busy intersection with no turning lane one day and my accelerator stuck, I turned the key and used all of my 100lbs to get it stopped and onto the shoulder while keeping track off the traffic in front of and behind me.
Needless to say I was a little rattled but a little bit of driving education would have gone a long way towards avoiding an accident and a seatbelt might have saved her from the severe injury.
Well,
I won’t fault someone who makes a mistake in a moment of panic, even the most and best trained make mistakes in thos situations. However failing to wear a seatbelt? I definately don’t see how you win an argument that that didn’t directly contribute to the extend of the injuries.. unless its one of those insanely rare crashes where being locked into the drivers seat may have been worse.
(a) This was a New Jersey state-court case, not a federal case.
(b)Federal judges own no stake in General Motors, so they have no conflict of interest.
missed the state court point. thanks.
As applied in other cases, the conflict of interest would not necessarily require GM ownership by the judge. The judge’s employer has an interest in GM, so he/she could be tainted by the influence of their employer.
I was stricken from a jury because my employer had a business relation with attorneys on both sides of the case.
The point is, when the federal government has an ownership interest in businesses, I think it compromises the federal court’s impartiality if the case involves or affects the business owned by the government, or its competitors. Do you really think a federal judge’s impartiality cannot be compromised and influenced by the President or Congress? They are the chief executive and board of directors of his employer. Don’t you think that has happened in the GM and Chrysler bankruptcy cases already?
If that were the standard for disqualifying a judge, no federal judge could hear a criminal case, because the prosecutor is the Executive Branch. The Constitution dealt with this by providing that judges have life tenure and cannot have their salaries reduced while in office, which creates a (theoretically) independent judiciary.
Theoretically, and when the country was founded, nobody in their wildest dreams would have even considered the government would “buy into” a major industry.
The sheer size of the auto industry and the “importance” to the Democratically controlled government a) turns the founding fathers vision of the role of our government on its ear, and b) makes the notion that a federal judge can be impartial in a case like this laughable. . . at best.
They have attacked our constitution and captialistic system with torches and it it time to push back very, very hard. They need to be challenged at EVEERY possible point. This happens to be one of those points because it does not hold water under the constitution.
From the opinion:
In May 1999, plaintiff purchased her vehicle, a used 1997 Ford Explorer with approximately 29,000 miles, from Freehold. Until the accident on November 10, 2000, she did not experience a sticking throttle. Freehold performed two minor repairs unrelated to the throttle system, without telling her that her vehicle might be subject to throttle problems or that Ford had a program to replace the throttle body at no cost. Zakrocki v. Ford Motor Co. 2009 WL 2243986, 1 (N.J.Super.A.D.) (N.J.Super.A.D.,2009)***On October 19, 1998, Ford sent dealers a technical service bulletin about 1997 and 1998 Ford Explorers and 1998 Mercury Mountaineers with the same engine as plaintiff's vehicle. The memorandum had been prompted by customer reports of a “throttle stuck at idle,” with a “common concern” of “a hard to depress accelerator pedal first thing in the morning or after being parked for several hours.” The bulletin named the conditions it addressed as “hesitation-throttle hard to depress,” “surge-throttle hard to depress,” or “throttle-sticky accelerator pedal.” The “action” was for the dealers to “[i]nstall a new throttle body assembly,” in which the “[c]learance between [the] throttle plate and bore has been increased to reduce the possibility of sticking.” The replacements would be covered by the vehicle warranty. Mark Hoffman, a Ford employee, noted that the bulletin provided dealerships with information on how to handle such complaints, but it was not an instruction for them to replace the throttle bodies on all subject vehicles. Zakrocki v. Ford Motor Co. 2009 WL 2243986, 5 (N.J.Super.A.D.) (N.J.Super.A.D.,2009)
I’d put that at being far more responsible for the extent of her injuries due to the accident than anything else.
Under New Jersey Law, the recovery of a Plaintiff injured due to failure to wear a seat belt will have his or her damages reduced by a maximum of 50%. Their case will never be dismissed because of their failure to protect themselves.
Under New Jersey Law, the recovery of a Plaintiff injured due to failure to wear a seat belt will have his or her damages reduced by a maximum of 50%. Their case will never be dismissed because of their failure to protect themselves.
You do realize that the coffee that burned the woman was at a temperature that was way above what coffee could be consumed. It also put her in the hospital for 2 weeks and did terrible damage to her female parts.
The jury awarded plaintiff $10,626,479.89 in damages consisting of $8 million for pain and suffering and for permanent disability, plus a total of $2,626,479.89 for past and future medical expenses and past and future lost wages. It then reduced the award by $2 million due to plaintiff's negligence by failing to wear her seatbelt. Punitive damages were tried before the same jury, which found both Ford and defendant liable and awarded plaintiff $42,050. Zakrocki v. Ford Motor Co. 2009 WL 2243986, 10 (N.J.Super.A.D.) (N.J.Super.A.D.,2009)
The real reason I posted this story was to see if anybody would comment about runaway verdicts.
It is also interesting to see how present circumstances effect juror psychology with respect to punitive damages against a suffering industry. You can bet, with a case with this kind of exposure, that Ford did some focus groups about what arguments would be effective. So discussions we have at places like FreeRepublic resonate beyond this forum and into the consciousness of potential jurors.
I have been a constant opponent of tort reform, because I do not see how taking power away from a jury and giving it to a person in a black robe, closing the courtroom doors or otherwise relieving a bad actor from their personal resonsibility to make good for their actions is in any manner conservative. It is populism at its worst because it leaves the victim who is not fully compensated no choice but to depend on the public dole. That did not happen to Ms. Zarocki here because of the intelligence of a jury.
See Post 11. I will email you the entore opinion if you like.
McFact No. 1: For years, McDonald’s had known they had a problem with the way they make their coffee - that their coffee was served much hotter (at least 20 degrees more so) than at other restaurants.
McFact No. 2: McDonald’s knew its coffee sometimes caused serious injuries - more than 700 incidents of scalding coffee burns in the past decade have been settled by the Corporation - and yet they never so much as consulted a burn expert regarding the issue.
McFact No. 3: The woman involved in this infamous case suffered very serious injuries - third degree burns on her groin, thighs and buttocks that required skin grafts and a seven-day hospital stay.
McFact No. 4: The woman, an 81-year old former department store clerk who had never before filed suit against anyone, said she wouldn’t have brought the lawsuit against McDonald’s had the Corporation not dismissed her request for compensation for medical bills.
McFact No. 5: A McDonald’s quality assurance manager testified in the case that the Corporation was aware of the risk of serving dangerously hot coffee and had no plans to either turn down the heat or to post warning about the possibility of severe burns, even though most customers wouldn’t think it was possible.
McFact No. 6: After careful deliberation, the jury found McDonald’s was liable because the facts were overwhelmingly against the company. When it came to the punitive damages, the jury found that McDonald’s had engaged in willful, reckless, malicious, or wanton conduct, and rendered a punitive damage award of 2.7 million dollars. (The equivalent of just two days of coffee sales, McDonalds Corporation generates revenues in excess of 1.3 million dollars daily from the sale of its coffee, selling 1 billion cups each year.)
McFact No. 7: On appeal, a judge lowered the award to $480,000, a fact not widely publicized in the media.
McFact No. 8: A report in Liability Week, September 29, 1997, indicated that Kathleen Gilliam, 73, suffered first degree burns when a cup of coffee spilled onto her lap. Reports also indicate that McDonald’s consistently keeps its coffee at 185 degrees, still approximately 20 degrees hotter than at other restaurants. Third degree burns occur at this temperature in just two to seven seconds, requiring skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability to the victims for many months, and in some cases, years.
Still think the case against McDonalds was frivolous?
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