Trial Magazine

Exploding gas tanks and air bags. Faulty ignition switches. Defective tires. Fatigued truck drivers. Inadequate insurance. The list of ways that large companies and industries have placed profits over safety on the road is endless. In doing so, these corporate giants have put everyday people—passengers, drivers, and pedestrians of all ages— at great risk for injury, death, and financial hardship time and time again. Early estimates by the National Highway Traffic Safety Administration (NHTSA) show that more than 38,000 people died in motor vehicle crashes in 2020 alone. But for decades, trial lawyers have worked tirelessly to get these unsafe products and practices off America’s roads.

The Early Cases

The major car manufacturers got their start in the early 1900s, and it was only a matter of time before safety issues arose. By the 1960s, trial lawyers started making real headway in their quest to force companies to make their cars safer.

In 1964, Erling David Larsen was driving a Chevrolet Corvair when he was severely injured in a head-on collision. The impact caused the steering mechanism to thrust into Larsen’s head. Larsen sued General Motors, which manufactured the Corvair, alleging the steering assembly was defectively designed and that the placement of the steering shaft exposed the driver to “an unreasonable risk of injury.” Despite GM’s argument to the contrary, the Eighth Circuit held that a manufacturer “is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.” This decision became a landmark, setting the bar for vehicle manufacturers’ duty of care.

The Ford Pinto. In the 1978 case Grimshaw v. Ford Motor Co., a California jury awarded over $3 million in compensatory damages and $125 million in punitive damages after a woman was killed and her passenger severely burned when her Ford Pinto’s gas tank ruptured during a rear-end crash, causing the car to erupt in flames. Although the punitive damages were reduced, Ford’s effort to have them completely thrown out was unsuccessful. But what made the case so notable was the notorious “Pinto Memo” revealing Ford knew about the gas tank problem at least two years before putting the car on the market—and could have fixed the design flaw at a cost of just $11 per vehicle.

The memo also disturbingly estimated the number of vehicles that would burn without the modification, as well as the expected number of deaths and burn injuries—and concluded it would be cheaper to pay damages to the victims than to fix the problem. Sadly, Ford was not the only automaker to engage in this type of cost-benefit analysis that devalued people’s lives and safety. The litigation over the Pinto forced automakers to redesign gas tanks to be universally located within rigid frames.

Design Defects Continue

Litigation in the following decades spurred myriad crucial safety improvements. Because of trial lawyers’ efforts, adequate seat belts were required, and seat designs were improved to avoid collapse even in low-impact crashes, among other changes. But automakers have continued to produce vehicles and components with known defects. And trial lawyers continue to work to hold them accountable and demand safer vehicles.

The disastrous Bucking Bronco. From 1984 to 1996, more than 17,000 people were involved in Ford Bronco rollover crashes and 823 people died. The popular SUV received a “most deadly” rating from the Insurance Institute for Highway Safety (IIHS). It was the trial lawyers who discovered that Ford knew in the prototype phase that the Bronco would tip onto two wheels when it was traveling as slow as 20 mph—and even considered not bringing the SUV to market. One of Ford’s engineers testified at a deposition that widening the vehicle by two inches would eliminate the rollover risk. But Ford executives decided that fixing the problem would delay the rollout, so it moved forward anyway, at great cost to people’s safety.

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These corporate giants have put everyday people at great risk for injury, death, and financial hardship time and time again. And for decades, trial lawyers have worked tirelessly to get these unsafe products and practices off America’s roads.

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Firestone failures. Starting in the early 1990s, NHTSA received more than 3,500 reports of defective Firestone tires—more than 700 people were injured and 271 were killed. In 2000, an investigation finally forced Firestone to recall the faulty tires—14.4 million of them—which had tread separation problems and were prone to blowouts. Individual lawsuits and class actions were filed, bringing further attention to the defect, and Congress passed the Transportation Reporting Enhancement, Accountability and Documentation (TREAD) Act requiring auto and tire manufacturers to report any auto or tire defects to the government.

Exploding Jeeps. Four-year-old Remington Walden was killed in 2012 while riding in a 1999 Jeep Grand Cherokee after its rear-mounted low-hanging gas tank exploded in a collision—a Georgia jury awarded Walden’s family $150 million in compensatory damages. An official testified that the automaker had since stopped making vehicles with gas tanks behind the rear axle and marketed other models with centrally located fuel tanks as a safer option. And NHTSA’s investigation concluded the vehicles with these types of gas tanks were more likely to explode in a rear-end crash; it ordered the recall of millions of Jeep Liberty and Grand Cherokee vehicles, which Chrysler initially opposed but then cooperated with in 2013.

GM ignition switches. In late 2012 to 2013, discovery during litigation prompted by trial lawyers’ tenacious investigation uncovered faulty ignition switches in GM vehicles. They would cause cars to suddenly shut off, even at high speeds, leaving drivers with no working power steering, brakes, or even air bags.

Brooke Melton lost control of her Chevrolet Cobalt on a road near Atlanta in 2010, slamming into another vehicle and spinning off the road and down an embankment into a creek—she died from blunt force trauma. In the resulting litigation, experts discovered from the vehicle’s black-box data that three to four seconds before the crash, the car’s speed had dropped from 58 mph to zero. Through further discovery they found a 2005 GM service bulletin that said that under certain circumstances the key could rotate to the “off” position in the ignition, and when the ignition is off, the black box registers zero mph.

More documents in discovery revealed that GM cars were stalling on the test track due to faulty ignition switches back in 2004, but it didn’t recall the faulty switches for another 10 years, despite allegedly changing the design years before the recall. In February 2014, GM finally recalled more than 2 million vehicles in the United States, but the damage had been done: 124 people had been killed and 275 had been injured due to faulty ignition switches.

GM paid approximately $900 million to settle wrongful death and personal injury cases in 2014 and 2015. It also paid $900 million to settle criminal charges with the U.S. Department of Justice and reached settlements in class actions over the lost value of the cars and in dozens of cases brought by states. But billions of dollars could not bring back the lost lives.

Toyota sudden acceleration. Jean Bookout was injured and her passenger was killed after Bookout’s 2005 Toyota Camry suddenly accelerated—although she hit the brakes and the emergency brake, the car did not stop. In Bookout’s case and many more like it, plaintiffs alleged the electronic throttle control system (ETCS) in multiple models of Toyota vehicles was defectively designed and failed to conform to industry standards. It was uncovered that Toyota was aware of problems with the system for years but hid them. After a jury verdict in favor of Bookout and a settlement, more cases were settled and Toyota recalled millions of cars, paid more than $1 billion in fines, and had to pay consumers who purchased the vehicles with the faulty ETCS.

Safety Is Not Optional

Air bags. Much like seat belts, early cars didn’t have air bags to protect drivers and passengers in the event of a crash. The technology was first developed in the 1950s, but by 1988, only 2% of new cars sold in the United States came equipped with them. Then in 1998, federal legislation made driver- and front-passenger-side air bags mandatory.

Fast forward 15 years. Stephanie Erdman was driving her 2002 Honda Civic when she was in a low-impact collision. The driver-side air bag deployed, and the air bag inflator ejected shrapnel-like material that embedded in Erdman’s eye socket and face. More injuries and even deaths would follow. A crucial safety device had been turned into a deadly weapon due to ammonium nitrate used to initiate the bags’ inflation—a powerful explosive that could become unstable under certain conditions such as humidity and high temperatures.

As more injuries and deaths occured, trial lawyers stepped in, filing lawsuits.Takata, the air bag’s maker, announced in May 2015 that 33.8 million vehicles were defective due to the faulty inflators—including approximately 17 million that automakers had previously recalled—and it finally agreed to a nationwide recall of certain types of driver- and passenger-side air bags. In total, approximately 100 million Takata air bags have been recalled worldwide, making it the largest consumer product recall in U.S. history.

But Takata and the manufacturers have, in many cases, mishandled the recall process—many consumers were not aware their vehicles had been recalled. For example, Carlos Solis, who was killed in January 2015 by his 2002 Honda Accord’s air bag, never received a recall notice, although his car was included in a 2011 recall. The TREAD Act does not require automakers to send notices by certified return receipt or call customers to notify them about the recalls, and sellers of used cars are not required to disclose recall status. These failures have encouraged calls for legislation to improve the recall process.

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A 2019 study concluded that forward-collision warnings reduced front-to-rear crashes up to 27% and warnings combined with automatic braking cut that number in half.

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Collision avoidance technology. The first widely available automatic crash avoidance technology, electronic stability control, was introduced in the 1990s and is intended to prevent loss of vehicle control—it is now mandatory on all new passenger vehicles. Since then, additional automatic crash avoidance technologies have reached the market, including blind-spot detection, lane-departure warning, adaptive cruise control, forward-collision warning, and automatic emergency braking. A 2019 study by IIHS and the Highway Loss Data Institute concluded that forward-collision warnings reduced front-to-rear crashes up to 27% and warnings combined with automatic braking cut that number in half.

But some automakers decide not to equip vehicles with these standard collision avoidance safety features that have been available for years. And after clients are injured in collisions involving vehicles that lack these features, trial lawyers have worked to bring defect claims, arguing that had the manufacturer installed widely available safety features, this likely would have avoided or mitigated the severity of a collision.

Dangerous Trucks

According to IIHS, 4,119 people died in large truck crashes in 2019—a number that was 31% higher than the number of fatalities 10 years before. This is another area where collision avoidance technology can make a difference—a 2016 NHTSA study that evaluated thousands of collision avoidance alerts in a sample from large trucks that had raveled more than 3 million miles found no reported collisions. But this technology is not standard, and thousands of crashes still occur. So trial lawyers continue to ensure trucking companies are held accountable when they fail to adequately train and supervise drivers, violate hours-of-service requirements, and more.

Driver fatigue. Truck drivers—compensated by miles driven, not hours worked—are pushed by their employers to ignore safety measures, delay repairs, and drive in a fatigued state. (For more, see p. 106.)

Under federal regulations, truck drivers carrying property can work as many as 14 hours per day, including 11 hours of driving (after 10 consecutive hours off duty) for a total of 60/70 hours on duty in 7/8 consecutive days per week. They also must take a 30-minute break when they have driven for eight cumulative hours without at least a 30-minute interruption. Truck drivers may restart a 7/8 consecutive day period after taking 34 or more hours off. Unfortunately, the reset rule is not mandatory, but research estimates that the rule could prevent 1,400 incidents annually.

Given the industry’s prioritization of profits over safety, it’s been the trial lawyers who have made a huge difference—verdicts for plaintiffs highlight the trucking industry’s problems with fatigued drivers and safety training.

For example, in 2009, truck driver Donald Creed killed 10 people on an Oklahoma highway when his tractor-trailer barreled into several cars that had slowed for a previous minor collision. Creed had slept only five hours before starting his run and had been driving for more than 10 hours when the crash happened. He never applied his brakes. As a result of the lawsuit filed by the families of the victims, the truck driver’s employer, Associated Wholesale Grocers, changed its driver training and safety programs. This case also serves as a prime example of a crash that could have been prevented if collision avoidance technology was installed in commercial trucks.

And in 2011, Marialy Venegas Morga was stopped on the side of a highway with her hazard lights on when a FedEx truck driven by Elizabeth Quintana slammed into her at 65 mph. Venegas Morga and her four-year-old daughter, as well as Quintana, were killed. Venegas Morga’s 19-month-old son was severely injured. Her husband and parents sued FedEx and two of its contractors. In 2015, a jury awarded them $165.5 million.

In August, a jury awarded the family of an 18-year-old college student who was killed in a 2017 highway crash $1 billion, $900 million of which was punitive damages. Connor Dzion had been in hour-long standstill traffic when a distracted semi-truck driver rear-ended Dzion’s vehicle. The truck driver was going 70 mph, and the data recorder showed he did not attempt to brake until one second before the fatal crash. He was also on his 25th hour of driving, in violation of federal regulations.

The truck driver who caused the standstill traffic had been looking at his cell phone when he flipped his 18-wheeler. His employer failed to do a background check, which would have disclosed the driver had been in several crashes and did not have a commercial truck driver’s license. The verdict hopefully will send a message to truck companies about following federal regulations and putting the public’s safety first.

Dodging liability. Making these issues worse is that motor carriers sometimes try to avoid corporate liability for a driver’s negligence by asserting that the driver was an independent contractor. But under federal regulations, the motor carrier responsible for the truck being on the road is also responsible for the driver of that truck. And brokers/shippers may try to avoid liability for their negligent hiring of trucking companies and drivers. However, trial lawyers have looked to the courts to hold these entities responsible for the part they have played in making our roads more dangerous.

Inadequate insurance minimums. Even when trucking companies are held accountable, they may not carry sufficient insurance to cover the harm they caused. Federal Motor Carrier Safety Regulations only require interstate motor carriers to maintain a minimum of $750,000 in insurance coverage (a $5 million minimum is required for hazardous materials carriers).

The minimum coverage provision has not increased since it passed in 1981, and as a result, many motor carriers today are underinsured. AAJ and trial lawyers have been trying to get these minimums raised to more adequate amounts and continue to do so. In the meantime, companies that value their bottom line over public safety still answer for their failings in court.

The Road Ahead

Technological advancements and the new ways that passengers find transportation in the 21st century raise novel questions about—and obstacles to—accountability when people are injured in crashes. Trial lawyers are paving the path forward.

Ride-hailing. The rise of the gig economy ushered in ride-hailing companies: People driving their own vehicles are connected via a mobile app to those seeking transit, the passenger pays for the ride through the app, and the company splits a portion of the fee with the driver. The ride-hailing explosion has made personal injury auto cases involving companies such as Lyft and Uber commonplace.

But these companies attempt to distinguish themselves from other common carriers (such as taxis and buses) that are subject to an elevated standard of care. Lyft and Uber allege that they are not in the transportation business at all, arguing instead that they are technology companies providing an app to connect drivers and riders, asserting that their drivers are independent contractors, not employees. (For more, see p. 106.) Cases against ride-hailing companies have raised all sorts of challenges, and trial lawyers continually push back against these defendants—including issues with consenting to their terms of service, jurisdiction, forced arbitration clauses, and inadequate insurance coverage.

Driverless cars. The driverless car industry claims that autonomous vehicles (AVs) could reduce crashes by 90%. While some are skeptical that will be the case, the possibility of a world where AVs dominate the roads has already created more questions than answers. In a collision involving an AV, who is responsible? Is it the passenger, owner, manufacturer, or all three? As the driverless car industry grows, “shared” or fleet-owned vehicles may become more common than individual ownership. So what does this mean for automobile insurance coverage? For liability?

Nearly two dozen states and the District of Columbia have begun legislating over these questions. One of the most crucial issues legislators face is defining who is responsible for “operating” an AV and ensuring it complies with the rules of the road. So far, state legislatures have given inconsistent answers to this question. Some states have balanced technological development with accountability by allowing AVs to operate only if manufacturers take responsibility for the safe driving behavior of their systems and carry $5 million in liability insurance. Others have thrown open the doors for dangerously unaccountable automated driving.

Federal action on this issue is inevitable too. For years Congress has debated AV legislation, and regulators at NHTSA are gathering data in anticipation of future rulemakings. Many open questions remain regarding the proper role of federal or state authority over AVs and what rules should govern their deployment. AAJ and its members are focused on protecting state claims from preemption, ensuring manufacturer accountability for dangerous AV driving, and ending forced arbitration.

How this all plays out could drastically impact motor vehicle cases and plaintiffs. Will general negligence cases be displaced by common carrier, products liability, or crashworthiness cases? Will AV crashes be covered by broad forced arbitration clauses that force claims into that secretive, rigged system? Will claims be expensive, multi-defendant quagmires, or will there be a clear line of responsibility for safe AV operations? Trial lawyers, once again, are called on to lead the fight for automotive and the public’s safety.

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End Distracted Driving

About 3,000 people are killed and 400,000 are injured annually by distracted driving—and cell phone use while driving, particularly among younger drivers, is a leading cause. Though nearly all states now ban texting while driving and nearly half ban the use of handheld phones, the problem continues. After AAJ member Joel Feldman’s daughter was killed by a distracted driver, he and his wife created the nonprofit End Distracted Driving (EndDD) to promote safe driving through advocacy, education, and action. Since EndDD’s creation in 2011, hundreds of trial lawyers have given its science-based presentations to high school students across the country. EndDD also offers community and workplace presentations and elementary school lesson plans to educate kids on how, as passengers, they can speak up about distracted driving. The organization has reached almost 500,000 people, in nearly every state. To learn more, visit enddd.org.

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SCOTUS Shifts Gears on Personal Jurisdiction

The exercise of personal jurisdiction over a defendant is always hotly contested, with corporations exploiting every avenue to avoid being called to answer for their actions in a particular forum. After a string of U.S. Supreme Court decisions constricting the availability of specific jurisdiction over out-of-state corporations—from cases such as Burger King Corp. v. Rudzewicz to Daimler AG v. Bauman to Bristol-Myers Squibb Co. v. Superior Court of California—plaintiffs finally prevailed earlier this year.

In March, the Court bucked a decades-long trend of narrowing specific jurisdiction in its unanimous decision in Ford Motor Co. v. Montana Eighth Judicial District. The decision was the first time since 1985 that the Court found that a corporation had sufficient contacts for the forum state court to exercise specific jurisdiction over it—and trial lawyers’ tenacious pursuit of justice even when the odds are against them helped make it happen.

Adam Bandemer was severely injured in Montana when the air bag in his 1994 Ford Crown Victoria failed to deploy during a crash, and Markkaya Gullett was killed in a crash in Minnesota involving her 1996 Ford Explorer. In separate products liability lawsuits, the plaintiffs asserted their home states had specific jurisdiction over Ford. But the automaker argued that because neither vehicle was designed, manufactured, or originally sold by Ford in the forum states, there was no causal link between its conduct in the states and the plaintiffs’ claims. Without that causal connection, Ford contended, exercising specific jurisdiction over it would offend due process.

But the courts rejected this stance at each step, culminating with the Supreme Court. The plaintiffs countered that Ford’s causation argument was not the relevant inquiry for the minimum contacts test and would radically transform well-established principles of specific jurisdiction—and the Supreme Court agreed. AAJ filed an amicus brief in support of the plaintiffs.

The Court explained that nothing existed in its case law to support this causal link test for specific jurisdiction. Instead, the Court reiterated its long-standing jurisdiction principles of a defendant “purposefully availing” itself of the forum and the plaintiffs’ claims “arising out of or relating to” the defendant’s activities there. In other words, the defendant had “deliberately ‘reached out beyond’ its home” to cultivate a market for its products in the forum states.

The Court’s ruling was a significant victory for plaintiffs nationwide and represents a balanced, commonsense approach to personal jurisdiction that respects due process while also providing injured people access to the courts to hold corporate wrongdoers accountable.