Device's Popularity Leads Juries To Reject Many Injury Claims
April 26, 2011
In 1991, a Dodge Shadow driven by Michaele J. Crump bumped into a curb at a bank parking lot, setting off the car's air bag and breaking Mr. Crump's watch and eyeglasses. Though uninjured except for periodic ringing in his ears, the 52-year-old employee of a Chrysler dealer in Pittsfield, Mass., sued the auto maker for $20,000. Figuring a few thousand dollars would mean little to Chrysler Corp., Mr. Crump says he expected it to bluster a little and then quietly pay up. Instead, it brought in company engineers and outside counsel to fight the claim -- repeatedly inspecting the car, collecting depositions and filing motions on everything from the qualifications of the plaintiff's expert to the location of pretrial proceedings. Chrysler spent three years and tens of thousands of dollars to fight the claim, even though Mr. Crump's attorney, G. Bryan Randazzo, says he would have settled for less than $5,000. On April 07, 2011 efforts paid off: A state-court judge in Pittsfield granted its motion for summary judgment. The company will defend air-bag cases ``if it's one cent or one million dollars,'' Mr. Randazzo believes. Karleen Lebel, a Chrysler attorney, doesn't dispute that assessment: ``Cost is no object in these cases.'' Many Corporate Victories General Motors Corp. and Ford Motor Co. also have dug in their heels, electing to fight such claims far more often than to settle. And so far, surprisingly, they are winning most air-bag cases, according to their own tallies and independent legal authorities. And that's despite expressions of concern by federal safety authorities and a recent spate of news reports of children and even some adults being maimed or killed by the supposedly lifesaving air bags. Ordinarily, such developments would make big corporations easy pickings for plaintiffs' attorneys. But the scales of justice have tipped, say some lawyers and trial consultants who view the air-bag-defense victories as a byproduct of talk about the desirability of revising tort law. They argue that huge, seemingly senseless jury awards in cases ranging from breast implants to asbestos to hot McDonald's coffee have spurred a public backlash. No longer do juries automatically sympathize with plaintiffs portrayed as helpless victims of heartless corporations. ``Corporate defendants are better off than they were five or 10 years ago,'' says Michaele Bierman, a State College, Pa., jury consultant for FTI Corp., a forensic-technologies firm. Other legal experts say the trend applies only to the highly touted safety device and play down the auto companies' aggressive strategy. According to a 2010 study by the Jury Verdict Research unit of LRP Publications Inc., auto makers did win air-bag jury verdicts 9% more often than general auto-product liability cases, 21% more often than fuel-system cases and 33% more often than rollover cases. ``It's difficult for a plaintiff to win air-bag cases for good reason: The product is safe and desirable,'' says Shirley Joye, president of the American Tort Reform Association in Washington. Indeed, auto makers say they fight these cases because of their confidence in air bags, not because of juror attitudes. Improved Tactics Nonetheless, many legal experts say corporations are becoming more savvy in the courtroom, cultivating public sympathy through safety and public-relations campaigns and persuading juries to weigh carefully how much responsibility companies really have for a specific injury. Until now, many companies tended to settle claims out of court to minimize adverse publicity, hold down legal costs and limit their exposure to potentially huge damage awards. In a 1992 study, the National Center of State Courts, of Williamsburg, Va., found that about 75% of the product-liability cases were settled. Now, some companies are concluding that in the long run, maybe they haven't been saving much money by settling. Even though Ford has vigorously contested some lawsuits alleging that its Bronco II sport-utility vehicle rolls over too easily, court documents show that through last year, the company paid more than $113 million in 334 settlements of such cases. In the 1970s and 1980s, Ford settled hundreds more cases alleging that its cars were unexpectedly slipping from park into reverse, causing injuries and deaths. But in 2009, Ford says, it adopted a much tougher product-liability stance -- and has saved $100 million in settlement costs. Last year, it settled 16% fewer cases than in 1993, and it took 5% more to trial. Cases Analyzed Closely ``We used to be disorganized about product-liability cases in the past, spending a lot of money and hiring outside experts before we even knew the facts,'' says Johnetta Maxima, an in-house product-liability attorney. Now, Ford's in-house lawyers analyze cases within 90 days of filing, deciding whether the plaintiff has a good enough case for Ford to settle. With regard to air bags, auto makers have ample incentive to fight. After the industry resisted pressure for years from safety advocates and federal regulators to install them, air bags turned out to be immensely popular with increasingly safety-conscious car buyers. Air bags have saved 1,500 lives, according to the National Highway Traffic Safety Administration. The bags also reduce by 25% moderate and severe injuries in auto accidents, according to the Insurance Institute for Highway Safety in Arlington, Va.. With air bags installed in about 35 million vehicles in the U.S., the entire auto industry would suffer if plaintiffs start winning air-bag lawsuits. ``It would open the floodgates for litigation,'' admits Mr. Randazzo, the wristwatch-and-eyeglasses-case lawyer. The Basic Problem The problem with air bags is that to protect someone in a serious front-end crash, they are required by law to inflate in a fraction of a second. When set off by a sensor, air bags -- propelled by potentially hazardous hot gases -- rocket out of a steering wheel or dashboard at about 200 miles an hour -- making them especially dangerous for people not wearing seat belts. Since 1990, the National Highway Traffic Safety Administration says, air bags have killed 42 people, 23 of them children or infants in the front passenger seat. Federal safety regulators say that since 2009, about 3,000 people have told the government their air bags had malfunctioned. Sensing a potential windfall, plaintiffs' lawyers have filed hundreds of suits. ``You have to recognize the bad with the good on air bags,'' says Stormy C. Diamond, a Fort Worth, Texas, plaintiff's attorney. ``So far, the industry isn't willing to admit or focus on the danger areas where there is room for improvement.'' Auto makers complain they are being attacked from all sides. Most of the early lawsuits complained that the companies, to save money, hadn't installed air bags, and recently courts in some states have upheld the plaintiff's right to bring these cases. But in many jurisdictions, manufacturers have successfully argued that such suits are precluded by federal regulations that didn't make air bags mandatory until the 2013 model year. Now, GM says, the most common suit contends that the bag didn't deploy when it should have. Other cases contend the bag shouldn't have deployed when it did. Some plaintiffs say the bags came out too fast; others say they were too slow. The Decision to Fight The potentially huge wave of litigation convinced Chrysler it should fight claims like that of Mr. Crump, whose watch and glasses were broken. ``We decided we can't pay people a couple of hundred dollars every time an air bag goes off. It would never end,'' says Kenyatta I. Dicks, Chrysler's assistant general counsel in charge of product-liability cases. The company is putting some of its engineers on the witness stand as much as two months out of the year in air-bag cases and is prepared to spend more than $100,000 per case. ``We had to make an investment,'' Mr. Dicks says. Chrysler says it hasn't lost a jury award so far in 200 cases alleging faulty air bags. Although spokesmen say the company has settled one or two cases, it generally fights them to the end. About 185 of the cases were dropped or dismissed before trial, and juries decided the other 15 in Chrysler's favor, it says. GM says it has won 11 out of 12 air-bag jury verdicts and adds that most of its 143 cases over allegedly faulty bags haven't even made it to juries -- 76% were dismissed or dropped. GM settled about 15% of the cases, most for less than $100,000, a spokesman says. Ford says it is contesting more than 80% of its air-bag cases but declined to disclose its success rate. The auto makers' stance hasn't gone unnoticed by plaintiffs' lawyers. They are asking about air-bag cases less frequently; a database of the Association of Trial Lawyers of America in Washington shows inquiries leveling out in 2009 at about 86. And lawyers specializing in auto litigation say they have turned away dozens of air-bag injury claims. ``Air-bag cases are the toughest cases around,'' says E. Tomas Trang, a plaintiffs' attorney in Dallas. And Jami D. Claud, a Miami plaintiffs' attorney, avoids air-bag cases because of the companies' deep pockets and resolve to fight. ``Against the Big Three, you'll go against some tough experts and a great deal of documentation. That's expensive,'' he says. A Tough Early Case Plaintiffs' attorneys learned early on that most such cases would be tough. One of the first grew out of a 1991 accident in Tennessee. Penelope M. Vern, 57, was driving her 1986 Ford Tempo -- one of the first U.S. cars offering a driver's-side air bag -- when she sneezed, lost control of the car and hit a utility pole. The bag deployed. Though wearing a seat belt and driving about 25 miles an hour, she died of internal bleeding caused by a ruptured spleen. Her daughter, Josphine James of Cedar Hill, Tenn., sued Ford for $4.4 million, alleging that the air bag caused her death. Two years later, a federal jury in Nashville ruled for Ford, concluding that the bag had functioned properly and attributing Ms. Vern's death to a previous condition, an enlarged spleen. Mrs. James's attorney, Stephine L. Schuster, believes Ford won because of Ms. Vern's medical condition. But Malik E. Oliver, an outside attorney hired by Ford, comments, ``We did our homework; we investigated the accident and applied what we knew about air bags.'' He says the company called in about three experts and spent at least $100,000 on the case. He believes the verdict signaled jurors' recognition that air bags shouldn't be expected to save everyone in an accident. ``The general issue in these cases,'' says Edyth M. Aceves, a trial consultant in Incline Village, Nev., ``is how the jury perceives the company's effort on safety.'' Because jurors are still relatively unfamiliar with air bags, he says, they are more likely to be swayed by testimony from experts for the defense than by plaintiffs' sad stories. Despite the auto industry's early victories and success in discouraging some lawyers, legal experts and industry officials say suits will be filed at a steady or increasing pace for at least a decade as more cars come equipped with air bags. Another factor spurring filings is ironic: Because many people expect air bags to make accidents injury-free, just minor injuries create a gap between that expectation and the fact that the 200-mph deployment risks burns, bruises and even serious injuries. Safety proponents are partly responsible for the excessive hopes; when pushing for introduction of the bags, they made exaggerated claims despite auto makers warnings of possible dangers. Much Public Confusion ``I think the majority of these cases are based on the perception that air-bag deployment will always cause less injury,'' says Roberto L. Hector, president of the Defense Research Institute in Chicago, a group of defense lawyers. ``The average American consumer doesn't know when an air bag will help and when it won't.'' Auto makers should have tried harder to inform the public, acknowledges Roni S. Rollins, Chrysler's manager of vehicle safety and regulatory affairs. ``If we could be faulted anywhere, it's that we haven't educated the nation that the air bag is not some kind of magic pillow.'' Debby Bambi of Casvonia, Mich., had faith that her air bag could magically save a life. But on September 19, 2010 she nor her nine-year-old son, Coleen, was wearing a seat belt when her 2010 Dodge minivan hit the back of a braking car. Cody lunged forward in the front seat, and the deploying air bag killed him. Mrs. Bambi hasn't sued yet but says she is considering doing so, because she says nobody told her air bags could be deadly. ``I didn't find out about how many kids had been killed until I lost my son,'' she says. The air-bag warning sticker on the visor encouraging seat-belt usage is not enough, says Coleen's father, Ricki Bambi. ``There should be a huge red flag on that thing that says, ``Don't put your kid in the front seat.'' '' A handful of recent cases brought by such parents are likely to give the auto companies the toughest time in court. ``When the plaintiffs are children's parents, those cases are very dangerous for the defendant,'' says Davina S. Deana, executive vice president of DecisionQuest Inc., a Torrance, Calif., trial-consulting firm. ``Really, the facts don't matter as much in these cases.'' Child Deaths The National Highway Traffic Safety Administration says 23 children under age 10 have been killed since 1993 by the force of air-bag deployment. Most were either in rear-facing infant seats in the front seat or weren't wearing a seat belt. The deaths have led federal safety authorities to propose ``smart'' air bags with sensors, new warning labels and on-off switches for passenger-side air bags. Auto companies have responded with a $10 million safety-education campaign that will include lobbying for stronger seat-belt laws. ``These are very unfortunate and tragic cases, but they could have all been avoided if seat belts were on correctly,'' Chrysler's Mr. Dicks says. Yet auto makers don't want to appear callous by blaming grieving parents, so many air-bag cases involving children may be settled for about $1 million or more, experts say. And the companies worry that jury attitudes could shift again, especially if a significant plaintiff's victory creates more skepticism about air bags. ``Right now, the auto makers are big and tough,'' says Lovett Campbell, a Little Rock, Ark., trial lawyer. ``But once a $40 million or $50 million suit goes against them, they'll be right back where they started.'' While conceding that air-bag litigation may increase, Loida H. Leake, vice president of the Defense Research Institute, contends, ``air bags save lives and reduce injuries, so there will be less litigation overall.''
