Metropolitan News-Enterprise


Wednesday, December 4, 2002


Page 1


Court Throws Out $70 Million Award Against Ford in Truck Accident


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals yesterday reversed an award of punitive damages in an Elko, Nev., couple’s suit against the Ford Motor Co., maker of a truck whose parking brake disengaged, causing the truck to roll over the plaintiff’s 3-year-old son.

The panel unanimously upheld the jury’s determination that Ford was liable in the death of Walter White, its award of $2.3 million in compensatory damages, and its finding that punitive damages were appropriate.

But in a 2-1 split, the judges sent the punitive damages issue back to the U.S. District Court for the District of Nevada, saying jurors should have been instructed to limit the punitive damages to a reasonable measure of the harm that Ford’s conduct caused within Nevada.

 The jury awarded more than $150 million in punitive damages following a 1998 trial. U.S. District Judge David Warner Hagen reduced the award to $69.163 million.

The Whites had earlier settled with Orscheln Company, which manufactured the brake.

Jimmie and Ginny White brought suit in 1995. Their son died in October 1994 after climbing into, then falling out of, the family’s 1993 Ford F-350 pickup truck, which was parked in the driveway.

The plaintiffs’ witnesses theorized that Walter climbed into the truck, pulled or kicked the gearshift lever—causing the vehicle to shift from first into neutral—then fell or jumped out and was crushed to death under the rolling wheels. Defense witnesses said the boy’s father might not have pressed down hard enough to set the truck in first gear, but Jimmy White insisted he had, and witnesses testified that his son could not have applied the force needed to pull the truck out of first gear into neutral.

The plaintiffs also presented evidence that Ford was aware of complaints about the brakes and had decided, three months before the accident, to recall the trucks in which they were installed. A month after the boy died, Ford recalled 884,000 1992-94 Ford F-series pickup trucks and Broncos, 1993-94 Ranger pickups, Explorers and Mazda Navajo sport-utility vehicles to repair the parking brake mechanisms.

The Whites got their recall notice five months after they lost their son.

 By special verdict, jurors found that the parking brake was “defective in design,” but that the defect was not a proximate cause of the child’s death. They also found, however, that the product was defective for failure to warn, and that the failure to warn was a proximate cause of the boy’s death.

Judge Andrew Kleinfeld, writing for the Ninth Circuit panel, rejected Ford’s argument that the verdicts were so inconsistent as to require a finding that the defendant was not liable as a matter of law. The jury might have reasoned that the brake design was defective and that Ford knew it, and that the failure of the brake caused the accident, but also felt that the accident wasn’t the “natural and probable consequence” of the negligence because the manufacturer would have been expected to fix the brakes once it knew of the defect, Kleinfeld said.

That reasoning enabled Hagen to reconciled the verdicts, and “makes sense—to us,” the appellate jurist said.

As for the punitive damages, Kleinfeld said there was some hesitancy to uphold them, based on a 1998 Nevada Supreme Court decision that held a rental car company not liable for punitive damages in a case where it required stranded customers to drive home with a vehicle after they reported a brake problem.

The conduct in that case, the judge acknowledged, was more blameworthy than Ford’s. But the Ninth Circuit panel, he said, is bound by the malice standard adopted in Coughlin v. Tailhook Association, 112 F.3d 1052 (9th Cir. 1997). That test requires no more than “clear and convincing evidence of malice—express or implied,” a standard that the Whites clearly met, Kleinfeld said.

But the judge—noting that plaintiffs’ counsel repeatedly talked about how many trucks Ford had made with the defective brakes in them—agreed that Ford’s right to due process was violated when the jury applied the Nevada standard to “vindicate[ ] the rights of all Ford pickup truck drivers everywhere,” including those in states that, unlike Nevada, do not recognize a post-sale duty to warn, give a percentage of punitive damages to the state, and/or limit the amount of punitive damages.

Judge Harlington Wood, a senior Seventh Circuit judge sitting by designation, concurred. Judge Susan Graber dissented, arguing that the jurors were properly instructed as to what evidence could be considered in fixing the amount of punitive damages.

The case is White v. Ford Motor Company, 99-15185.


Copyright 2002, Metropolitan News Company