Atlanta Injury Law Blog

When Ford acquired Volvo a few years ago, I thought it was quite a mismatch of corporate cultures. Volvo had a reputation for building the world's safest cars.  Ford, on the other hand, sometimes seemed only slightly ahead of Yugo in that regard. 

I have owned Volvos for 20 years.  I bought the first one, a 240 DL wagon when our first child was an infant.  She now drives an S40 while I drive an S80 with about 120,000 miles on the odometer.  My wife and son drive other models, but not Fords. 

The safety reputation of Volvo is impeccable.  In the past 20 years, I have become aware of fatalities in Volvos only in a couple of types of situations -- where a deer or a falling oak tree came through the windshield, or where a drunk wrapped himself around a utility pole at 100 mph.

Ford is another story altogether.  I won't begin to catalog the horror stories.  Some I'm not at liberty to tell.

However, hope breathes eternal, and I hoped that Volvo's influence might be a healthy one in the Ford corporate family.  But now it appears that the marriage didn't work out, as Ford prepares to sell  its high-end European brands -- Volvo, Land Rover, Aston Martin and Jaguar.  Ironically, Volvo ranks as one of Ford’s best-selling brands. It has generated profits of $800 million to $1 billion a year, provided Ford with expertise in safety development.  That's just not enough to offset the losses from other Ford brands.

I wonder what had happened if Ford had subsumed itself into the Volvo identity, including the Volvo tradition of safety consciousness, and adopted Volvo safety technology for all its brands.  Just a thought.

Tires manufactured in China and sold in the U.S. under brand names Westlake, Compass, Telluride and YKS have been ordered recalled due to life threatening defects.  My bet is that no one will ever be able to hold anyone financially responsible, and certainly not in Georgia. The problem is compounded by the inability to enforce a U.S. court judgment in China.

The Chinese tire manufacturer, Hangzhou Zhongce Rubber Co., chose to leave out a gum strip which helps bind the belts of a tire to each other, preventing tread separation.  When tire treads separate at highway speeds, catastrophic crashes often result.  This was the cause of the massive Firestone / Bridgestone  tire recall several years ago.

The response from the Chinese tire manufacturer was to deny everything.

This recall involves tires imported and sold by a small New Jersey importing company that does not have the resources to complete the recall and replace the tires.  The chance of getting the Chinese company to take responsibility for the recall, or for the injuries and deaths caused by these tires, is just about nil. 

Of course, the Chinese plan to start exporting cheap cars to the U.S. too.  See a 40 mph crash test of a Chinese sedan.  The A-pillar collapses and folds up, forcing the driver's door to pop largely out of its frame, while the lower portion of the car buckles under.  The results to the occupants would be catastrophic.  My German is more than a little rusty, but the frontal and side impact videos really require no translation.

Aside from any interest in protecting American manufacturing jobs, the Chinese lack of safety standards or financial responsibility for resulting damages is another reason to avoid buying Chinese products in any category at any price.  Unfortunately, our retailers such as Wal-Mart have too often abandoned American manufacturers and workers and sell hardly anything that was not manufactured in China and other low-wage countries.  It is just one more instance of corporations exporting American jobs and the safety of American consumers.  See the discussion of this topic at Free Republic.

The tire recall reminds us yet again of the shortcoming of "reformed" Georgia tort law that shields sellers from all liability for defective products, even when they import substandard products from third-world manufacturers that cannot be held accountable in U.S. courts.  I wonder if we might get around that through creative use of the Fair Business Practices Act, though it would be tough.

Caveat emptor.  How do you say that in Chinese?

The Latin phrase "caveat emptor" (buyer beware) is often referred to as an ancient principle of the law.  However,  "caveat emptor" entered the legal vocabulary as a caustic comment of people cheated by itinerant peddlers and horse traders beyond the effective reach of local courts and by dishonest merchants who had won the favor of kings and nobles who controlled the courts. Lawyers began to use the convenient phrase in arguments.  Eventually Blackstone lent it more dignity. Around 1800 it was endorsed in English case law, and American courts followed suit. The doctrine of caveat emptor, wrapped in the convenient cloak of a Latin phrase, arose contemporaneously with philosophies of moral relativism in time to serve the interests of developing mercantilism. See generally, W. H. Hamilton, "The Ancient Maxim Caveat Emptor," 40- Yale Law Journal 1188 (1931).  To borrow language of Justice Frankfurter  in describing "assumption of risk,"  the phrase "caveat emptor" is "an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lay repetition; a repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." 318 U.S. at 68-69.

While products liability insurance is to Chinese manufacturers exporting to the US, it is unclear whether most such manufacturers carry insurance or have any motivation to do so.  In Georgia, where product sellers have virtually no exposure to liability, there is no economic motivation for sellers to require their Chinese suppliers to carry such insurance.

The U. S. Supreme Court has decided to hear a case concerning the scope of federal regulations preempting higher standards under state health, safety and tort laws. Preemption is the principle that a federal law can supersede or supplant any inconsistent state law or regulation. When preemption occurs, state law on a given subject is invalidated and the federal law substituted in its place.

Some federal statutes clearly state that regulations issued pursuant to the statutes will preempt any contradictory state laws, while some clearly state that the federal standards define a national minimum standard that states may exceed.  Other statutes are silent about preemption, preemption comes about through federal agencies claiming preemption in their regulations, or by courts implying preemption.

Under the Bush administration, a wide variety of federal agencies have taken the position that their regulations preempt all state laws and tort claims where manufacturers and other corporations comply with minimal federal regulations.  Sometimes those regulations are ghost-written by industry lobbyists to meet the minimum level to which even the least safety conscious already comply.  By setting the standard that low, and preempting any legal claims that there should be greater attention to safety, the regulators remove the economic incentives for safety that have been provided by products liability litigation. 

The specific case the Supreme Court has agreed to hear involves medical devices.  However, the issues is much broader, involving everything from pharmaceuticals to railroad safety to auto safety. 

It is noteworthy that not all Republicans follow the Bush administration's line on this issue. Fred Thompson, a former Tennessee Senator and prospective Presidential candidate, recently wrote an article critical of federal regulations preempting state laws, on the basis of the conservative constitutional principle of federalism. 

A rash of recent news stories about dangerously defective products from China points to the need to amend a tort reform law that was passed in Georgia twenty years ago. In 1987, long before so much manufacturing was outsourced to China, the Georgia General Assembly passed OCGA 51-1-11.1, which provides:

(a) As used in this Code section, the term "product seller" means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer's plan, intention, design, specifications, or formulation; or repairs; maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.

(b) For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.

(c) Nothing contained in this Code section shall be construed to grant a cause of action in strict liability in tort or any other legal theory or to affect the right of any person to seek and obtain indemnity or contribution.

The legislators back in 1987 were probably thinking about protecting "mom and pop" retailers from liability due to defects in products as to which they had no influence or control.  It is extremely unlikely that they had in mind a gargantuan retail chain with the power to dictate product specifications and outsource the bulk of American manufacturing to China.

Before passage of this statute, Georgia law recognized the doctrine of "ostensible manufacturer" whereby a company that puts its label on a product manufactured by another company was held responsible for the product as if it were the actual manufacturer.   Courts later determined that this statute abolished the "ostensible manufacturer" doctrine in Georgia.

The situation now is that a huge percentage of manufacturing has been outsourced to China. While it is theoretically possible to sue a Chinese manufacturer, as a practical matter it enormously difficult, expensive and unrewarding to seek to hold a Chinese manufacturer fully accountable. With no feasible opportunity to seek compensation from the "ostensible manufacturer" that puts its label on a product imported from China, or to sue a "product seller"  such as Wal-Mart that dictates specifications and imports vast quantities of cheap products from China, Georgians have no practical recourse for injury or death caused by defective Chinese products.

At minimum, OCGA 51-1-11.1 should be amended to provide an exception where the product seller puts its own label on a product manufactured by another company, or sells imports that were manufactured upon its order.  If there are unreasonable risks associated with products manufactured in China, all that risk should not fall upon the American consumer.  I haven't worked out the wording of such an amendment, and of course the devil is in the details.

A leading industry in Northwest Georgia is the manufacture of tufted carpet. A vital element of the local economy of Dalton, Calhoun and surrounding communities, the carpet industry provides a good living for a substantial portion of the local population as well as thousands of hard-working immigrants. Unfortunately, however, we have seen that the companies that design and manufacture the equipment used in carpet production sometimes cut corners regarding worker safety. In one case against a major manufacturer of carpet equipment we found that a direct applicator was designed to be accessed on two sides but the emergency stop cord was installed only on the safer of the two sides, and even then was installed backwards so that it did not work. The worker whose arm was pulled between rollers was lucky to avoid worse injury or even death. We continue to hear of incidents in which even experienced carpet mill workers are mained or killed by defectively designed or manufactured carpet production equipment.

The Administration in Washington is at it again. Currently, 10,000 people die and 24,000 people are injured every year in rollover accidents. But the Administration clearly does not care about those broken lives.

Under the Transportation Equity Act of 2005 (Public Law No. 109-59), Congress directed the National Highway Traffic Safety Administration (NHTSA) to establish rules to reduce deaths and injuries caused by vehicle rollover accidents and to specifically propose a new standard for how strong a vehicle's roof must be.

Instead of acting to significantly reduce injuries as Congress directed, NHTSA proposed a weak "roof crush standard" that leaves safety at the status quo—70% of vehicles on the road currently meet the new proposed standard.

Still worse, the proposed rule marks an unprecedented power grab by a federal agency, preempting all state requirements and state tort law. The result: as long as a car manufacturer meets the proposed standard, no individual may bring a claim in any court if they are injured or killed because of a badly made roof.

This is a fundamental change in auto safety that all Americans should be concerned about. Historically, federal regulations have been interpreted to set a minimum standard of safety. If a manufacturer met the minimum standard but still put a defective product out there that killed people, they could be held accountable. But that is not how the Administration wants it.

The automakers know they can make safer vehicles, they know how to make safer vehicles, but they don't want to spend the money. Instead this rule says to the industry, if you knowingly put a roof design on the market that happens to meet a bare minimum standard but is defective and a child is paralyzed in a rollover accident, the family can never hold the manufacturer accountable in court.

A coalition of lawyers who have sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools.

Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food.

Note that these are not the meat-and-potatoes trial lawyers who typically represent individuals and families who have suffered a grievous injury. They are public health crusaders who try to find a client to fit a theory, and use the courts to change public policy and large-scale corporate behavior. Referring to them as "trial lawyers" or "personal injury lawyers" would be misleading, but I am sure the tort reform zealots will do just that.

I have serious reservations about this kind of food and beverage class action litigation. And not just because I went to law school at a univeristy (Emory) that was built on Coca Cola money. Some of my concerns are:

* Unless they can prove the sinister use of toxic or physically addictive additives in food and beverage products, they appear to be complaining about things that are obvious common sense characteristics. We have all known since childhood that too much sugary soda and too much fatty food is likely to make you fat and rot your teeth. We choose to indulge anyway. Just today I decided to skip the low-fat, low-calorie salad at lunch, and indulge in a double hamburger with fries and a full-sugar, non-diet soft drink. I knew exactly what I was doing, but hey, I ran a marathon in October and a half-marathon in November, and I'll run it off tomorrow.

* A massive class action that strikes the average citizen as silly and overreaching will only feed the climate of "tort deform" by which corporate America seeks to strip rights and redress from average citizens. It will enter the litany of "frivolous lawsuits" along with the real but misrepresented (McDonalds hot coffee case) and the merely mythical (guy holding up lawn mower to use as hedge trimmer). It will hurt the system upon which people with real and serious injuries depend.

The change of behavior these crusaders seek -- to stop sales of sugary soft drinks to children at school -- is probably good. I am sure they mean well. But I think their use of tort law for this purpose will hurt more than it helps.

There's a story out today that pharmaceutical companies are recruiting college cheerleaders as pharmaceutical sales reps. They don't look for a science background as much as sex appeal.

"'They don't ask what the major is,' Mr. Williamson said. Proven cheerleading skills suffice. 'Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want.'" ….

"…In an interview, Mr. Reidy remembered a sales call with the "all-time most attractive, coolest woman in the history of drug repdom." At first, he said, the doctor "gave ten reasons not to use one of our drugs." But, Mr. Reidy added: "She gave a little hair toss and a tug on his sleeve and said, 'Come on, doctor, I need the scrips.' He said, 'O.K., how do I dose that thing?' I could never reach out and touch a female physician that way."

One more reason I'm glad my primary care physician is female.

Back in the 1970's, Ford made the Pinto with a gas tank mounted behind the axle, with a protrusion on the axle positioned to puncture the gas tank in a rear end collision. When that happens, a cloud of vaporized gasoline envelopes the vehicle, and any spark can ignite a fireball. After a number of Pinto occupants were incinerated, trial lawyers exposed Ford's bad choices. Eventually, it became standard practice for auto manufacturers to mount fuel tanks in a protected position under the passenger compartment, guarded by the frame and axles.

Now the behind-the-axle fuel tank design is found in only one vehicle manufactured in the United States. And, yes, Ford is at it again.

The Ford Crown Victoria, Mercury Grand Marquis and Lincoln Town Car are the same except for the trim. The gas tank is mounted behind the axle, with several protruding parts that can puncture the gas tank upon rear impact.

The Crown Victoria is widely used as a police interceptor. After several policemen were burned up, Ford came up with a retrofit kit to guard the parts capable of puncturing the tank. That kit has been 100% effective in preventing gas tank ruptures and fires in rear end collisions at speeds up up to 100 mph.

However, Ford has not informed non-police consumers of the hazard, and has not made the guarding retrofit kit available to customers other than law enforcement. How many more innocent consumers must die before Ford fixes the problem?

See table of fatal fire crashes, 1993-2000, and report of recent police car fire in Seattle.

According to an article in the New York Times (free registration required) on 3/31/05, a study from the consumer advocacy group Public Citizen and documents from a recent lawsuit against the Ford Motor Company suggest that Ford ignored evidence that stronger roofs would lead to fewer injuries. Also on Wednesday, a plaintiffs' lawyer in several prominent rollover lawsuits said he had obtained internal Ford documents that show that several years ago the company rebuffed assertions from its Volvo subsidiary that stronger vehicle roofs prevent injuries and deaths in rollover accidents. Documents connected with a trial this year involving Ford show that the automaker decided not to strengthen roof supports on the Explorer, a sport utility vehicle, although engineers at the company recommended the change.

A new study by Martha Bidez, a biomedical engineering professor at the University of Alabama, concludes that "roof crush can and does cause catastrophic injury and death." The study re-examined Ford's own rollover crash data from 1998 and 1999 and concluded that the most catastrophic neck injuries occurred when the Explorer's roof caved in and smashed into the crash dummy's head. It further found that in test cases where the Explorer's roof was not crushed, no serious injuries were recorded in the dummies.

The Explorer's roof has become the subject of further scrutiny after the disclosure that more than a decade ago, Ford dismissed suggestions from its engineers that the vehicle's roof supports be strengthened. A 1993 memorandum from two Ford engineers, which was reported in The Detroit News on Tuesday, suggested that the company reinforce support pillars that connect the body of the 1995 Explorer to its roof.

Ford did not, and produced Explorers in at least three subsequent model years that were more susceptible to having their roofs crushed in a rollover, according to documents introduced in the Florida case earlier this month

We have had successful recoveries in several cases of automotive product liability, including roof crush cases. While the specifics of settlements are subject to confidentiality covenants, our clients were satisfied and these types of issues are familiar to us.

The Consumer Product Safety Commission has announced the following product recalls in recent days:

- Portable cribs from Delta Enterprises -- crib slats can separate from the headboard, posing an entrapment risk to young children.

- Rear projection TV from JVC - fire risk.

-- Carpet from Shaw Industries -- fire risk due to uneven application of fire retardant.

-- High intensity light fixtures from Lithonia Lighting -- fluid leak causing lenses to break.

-- Children's sweaters from J. C. Penney - choking hazard.

-- Stuffed yarn bunnies from Ocean Desert Sales -- choking hazard.

-- Soother Baby pacifiers -- choking hazard.

-- Lands End infant & toddler parkas -- choking hazard.

Throughout the United States, and in Georgia, manufacturers have a duty to provide adequate warnings and instructions with regard to foreseeable dangers in the use of manufactured products.

In a rare case, a wrongful death action in Georgia may be based upon unfair and deceptive acts and practices in violation of the Fair Business Practices Act which allows recovery of treble damages, punitive damages and attorney fees for intentional violations. This theory may be particularly applicable in products liability cases where a manufacturer has systematically deceived consumers with regard to product hazards.

Enforcement of manufacturers'' legal accountability to consumers helps make products safer and better for all of us. With the U.S. economy the strongest in the world, protection of consumers does not restrain innovation and legitimate corporate profits.

Under Georgia law, a manufacturer may be liable for injury or death caused by a defective product under three separate legal theories.