As the New York Times described yesterday, Natasha Weigel and Amy Rademaker, both teenagers, died needlessly in 2006 because General Motors sold a defective car that suddenly lost power, causing them to crash and also causing their airbags to fail. A police investigation found that “[t]he car’s ignition switch had powered off seconds before the accident, and G.M. had received reports of similar incidents, pointing to a possible defect.” G.M. had already settled other cases involving deaths, including of another teenager, arising from the non-deployment of the frontal airbags in a 2005-2007 Cobalt.
The Weigel and Rademaker families both went to experienced product liability lawyers who had pursued car defect cases before, and they were both told: you don’t have a case.
Why not? Because both girls were from Wisconsin, and the Wisconsin legislature thought it was more important to pad insurance company profits than it was to give manufacturers an incentive to ensure their products are safe. As one of those lawyers wrote the family, “Because of the $350,000 maximum recovery for loss of society in Wisconsin and the extreme expense of litigating the case against General Motors, our office is unwilling to become involved in this matter.” As the firm told the Weigel family’s personal attorney, they needed to “see a potential upside recovery well in excess of $1 million” because the costs of pursuing a G.M. case through trial averaged $300,000 and could exceed $400,000.
The deadly cars with the defective ignition switches stayed on the road, killing at least 42 people. (There are probably more; that’s how many have been uncovered so far.) Eventually, as the New York Times says, “the defect’s public disclosure — and the recall of 2.2 million G.M. vehicles in the United States — was set in motion by a lawsuit filed in Georgia, a state that does not place strict caps on damages in product liability lawsuits.”
Tort reform kills.
I have handled claims against car manufacturers before (they’re typically “crashworthiness” cases). The numbers given are accurate: lawyers are lucky if they can get a crashworthiness case through trial for less than $250,000, and there’s a good chance they’ll end up paying double that. The cases require an enormous amount of time and out-of-pocket costs given the limited number of qualified experts and the extensive testing they have to conduct to evaluate and prove the case.
Just as bad, the car manufacturers (and the tire manufacturers, the baby seat manufacturers, the airbag manufacturers, etc) fight these claims with a war of attrition, and sometimes with outright lying to the court that can only be uncovered years later. Sometimes it’s never uncovered at all. In one of my cases, the car manufacturer said it destroyed all of its own testing data on one of its most popular models, and so couldn’t give it to us in discovery. Do you believe that? I didn’t. I still don’t.
The cases are also fraught with legal peril. Just last week, the Pennsylvania Superior Court decided a case in which the roof of a 2001 Ford Excursion caved in on the family inside, severely injuring two of the daughters, leaving one a quadriplegic. At trial, the court allowed Ford to argue that the daughter’s spinal cord really broke when she fell out of her seat and hit the roof, and not when the roof caved in on her, but precluded the plaintiffs from presenting evidence from the National Highway Traffic Safety Administration, the Insurance Institute for Highway Safety, the National Center for Statistics and Analysis, Fatality Analysis Reporting System, and the National Automotive Sampling System showing that Ford’s theory was pure junk science, and that the real cause of their daughter’s injury was the roof crush.
The jury found for Ford.
The plaintiffs get nothing, and their lawyer likely spent more than 2,000 hours on the case and more than $400,000 dollars out of pocket.
Little wonder lawyers are hesitant to take product liability cases against car manufacturers.
Bad as this sounds for people who ever ride in cars (i.e., you, me, and everyone else) the point here is much broader than just car manufacturers, and much broader than just product liability cases. This is the situation in medical malpractice — as I’ve been saying on this blog for years, and as ProPublica detailed back in January — and in most other areas of litigation.
I review a lot of cases, and far too often I have no choice but to tell a potential client with a valid claim that I can’t help them. Maybe the law is unsettled or just plain bad. Maybe I think the jury pool is so tainted by propaganda that they’ll think a malpractice award will cause their health care to get worse. (It won’t — it’ll cause it to get better.) Or maybe the damages provided by law simply aren’t enough to make up for the extreme cost and risk of the case.
The deaths of Natasha Weigel and Amy Rademaker were needless and couldn’t even be used to make other people safer. It doesn’t have to be this way. But thanks to “tort reform,” it is.