Wednesday, February 24, 2010

Toyota Recall, Sudden Acceleration Deaths, Products Liability Lawsuits And Tort Reform--Who Benefits?

The answer: Toyota. Let's assume for the sake of argument that the Toyota vehicles' sudden acceleration problems are due to a "defective product" (a defect caused by improper design/testing, manufacture, or failing to adequately warn consumers of defects, problems etc). How would Ohio law treat these defects, Toyota's liability, and the families of the victims (at least 34 deaths have been attributed to sudden acceleration)?

Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.

Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?

Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.

Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.

Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.

What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.

Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.

So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.

Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.

And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?

The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.

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