Personal Injury & Product Liability Blog

Ford Pinto’s Real Legacy: Suffering and Death

By on June 27, 2016 - Comments off

This month, fans of the infamous Ford Pinto will gather to celebrate the car’s 45th anniversary at an annual event called the Pinto Stampede in Carlisle, PA. It’s a time for enthusiasts to share stories and bond over their love for Ford’s budget-friendly subcompact.

The Pinto, like all American cars, has a special place in American society. We naturally romanticize the nostalgia of our first car and our first taste of freedom. But as we look to the past through rose-tinted glasses, it’s important that we don’t let them obscure the truth.

So before we pop the champagne to toast the Pinto, we should take a sober look back at the true cost of Ford’s most shameful venture. The real legacy of the Ford Pinto is suffering and death. It is the ultimate cautionary tale of corporate greed. And so, to celebrate the Pinto is to celebrate human suffering.

The Ford Pinto is perhaps the most dangerous car ever created. A series of design defects caused the car to burst into flames in low-speed collisions. But disturbingly, the defects engineered into the Pinto were no accident. In Ford’s quest to make a lighter, cheaper car, the corporation deliberately cut safety corners.

In 1973, Ford’s engineers created a cost-benefit analysis outlined in what has come to be known as the “let them burn memo.” The memo outlined the actual mathematical calculation used by the company to weigh the cost of human life against the cost of implementing safety design in the car. It showed the company knew its actions would result in burns and deaths. Yet Ford triumphantly rolled out the Pinto anyway as, “The Little Carefree Car.”

There was nothing carefree about the victims of Pinto explosions and fires. The burn injuries are horrific. Those victims who weren’t killed were condemned to a life sentence of suffering.

In 1978, I had the honor to represent victim Richard Grimshaw in his negligence and injury case against Ford. Mr. Grimshaw, who suffered terrible burn injuries was awarded more than $128 million in the largest product liability verdict ever at the time.

There was no celebration for Mr. Grimshaw or his family. There was no celebration for the scores of victims killed and maimed by the Pinto. They do not remember the Ford Pinto fondly.

Facing mounting pressure by government regulators and lawsuits, Ford issued a voluntary recall of the Pinto in 1978. To his credit, Henry Ford’s grandson, Henry Ford, II, made the courageous decision to cease manufacturing the car in 1980. That decision is possibly the only thing we should celebrate about the Pinto legacy.

We don’t celebrate tires with treads that separate. We don’t celebrate toys with known choking hazards. We don’t celebrate dangerous cribs or high chairs. Instead, we should learn lessons from these products. And we should celebrate government regulation and the civil justice system that makes our products safer.

Celebrating the Ford Pinto is a morbid pursuit, akin to glamorizing a murderer. We should call the Ford Pinto what it was. At best, a horrible mistake. At worst, the natural result of reckless corporate greed.

Human life is not a cost to be calculated on a balance sheet. There is no acceptable number of injuries or deaths from a product. I hope that will be the legacy of the Ford Pinto.

If you want to remember the Ford Pinto on this 45th anniversary, read a list of the victims’ names. They’re the ones who shouldn’t be forgotten.

Mark P. Robinson, Jr. is the founder, senior partner and sole shareholder of Robinson Calcagnie Inc. based in Newport Beach, California. His practice is devoted to consumer safety law and he has worked on thousands of products liability cases, vehicle accidents, catastrophic injuries, dangerous drugs and class action litigation matters.

 

Mass Torts -CAFA

By on December 29, 2015 - Comments off

pills

Briggs v. Merck Sharp & Dohme (United States Court of Appeals, Ninth Circuit, August 6, 2015)  — F.3d —-, 2015 WL 4645605

Five groups of plaintiffs filed personal injury and wrongful death actions in California state court, asserting various tort claims against manufacturers and a distributor of diabetes drugs. Each of the five cases has fewer than one hundred plaintiffs. However, defendant Merck removed the actions to federal court, asserting jurisdiction based upon the Class Action Fairness Act (“CAFA”), which authorizes the removal to federal court of “mass actions,” civil actions in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).

The defendant contended that because there was already a coordinated state proceeding pending in Los Angeles County involving a second set of cases involving similar drugs, and in an earlier motion to remand the plaintiffs had indicated that “[R]emand will result in these cases joining the Judicial Council Coordinated Proceeding (JCCP), In re Byetta Cases, JCCP No. 4573, in Los Angeles, where coordination with this Court’s MDL is underway,” plaintiffs’ counsel’s expressed intent that the cases be transferred to the JCCP constituted a proposal to try the claims of those plaintiffs jointly.

The district court denied the motion to remand, but the 9th Circuit Court of Appeals reversed, holding that in none of the five cases did the plaintiffs propose that the claims of one hundred or more persons be tried jointly within the meaning of CAFA:  Read the rest »

 

Respondeat Superior – Sexual Assault

By on December 22, 2015 - Comments off

apartment  personal injury

Z.V. v. County of Riverside (Fourth District, June 17, 2015) 238 Cal.App.4th 889, 189 Cal.Rptr.3d 570, 15 Cal. Daily Op. Serv. 7831, 2015 Daily Journal D.A.R. 8237

A 15-year-old who was sexually assaulted by a county social worker while in foster care brought an action against the worker and the County of Riverside. The plaintiff alleged that the social worker, who had volunteered to transport him to a new foster home, returned several hours after his shift had ended, and under the pretext of building “rapport,” took him to a liquor store and then to his apartment where the attack took place.

The defendant county moved for summary judgment, contending that it could not be held liable under the doctrine of respondeat superior, in that the assault did not occur within the course and scope of the social worker’s employment.  The court of appeal affirmed, distinguishing the facts of the case from Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202:  Read the rest »

Posted in: Personal Injury

 

Products Liability — Adjacent Products

By on December 15, 2015 - Comments off


Auto shop

Sherman v. Hennessy Industries, Inc. (Second District, June 18, 2015, as Modified on Denial of Rehearing July 8, 2015) 237 Cal.App.4th 1133, 188 Cal.Rptr.3d 769, 15 Cal. Daily Op. Serv. 6450, 2015 Daily Journal D.A.R. 6888

The husband and children of a woman who died from mesothelioma allegedly caused by exposure to asbestos dust her husband carried home from work, filed a products liability action against the manufacturer of a brake lining arcing machine. The plaintiffs alleged that the machine, which was used by the decedent’s husband for 15 years in his job as a brake mechanic, released asbestos dust into the air when it was applied to brake linings containing asbestos.

Relying on O’Neil v. Crane Co. (2012) 53 Cal.4th 335, the defendant moved for summary judgment, contending that the  machine itself contained no asbestos, and that the plaintiffs could not establish the circumstances necessary for the imposition of strict liability. The defendant argued that the plaintiff could not prove the sole intended purpose of the machine was to abrade asbestos-containing brake linings, since the machine had the capacity to abrade asbestos-free brake linings, which were available in the 1960’s and 1970’s. The plaintiffs opposed the motion, arguing that the machine was designed to grind brake linings only of a certain type, and that during the pertinent period, those linings “almost universally” incorporated asbestos.

The trial court granted summary judgment, concluding that the AMMCO machine “did not contain asbestos, was not designed to be operated exclusively with asbestos-containing brakes, and could be operated with asbestos-free brakes.” However, the court of appeal reversed, under what it called the Tellez–Cordova exception to the general rule barring imposition of strict liability on a manufacturer for harm caused by another manufacturer’s product:

Read the rest »

Posted in: Products Liability

 

Forum Non Conveniens — Nominal Defendents

By on December 8, 2015 - Comments off

Bone growth

David v. Medtronic, Inc. (Second District, Filed June 12, 2015, as Modified June 26, 2015) 237 Cal.App.4th 734, 188 Cal.Rptr.3d 103, 15 Cal. Daily Op. Serv. 6087, 2015 Daily Journal D.A.R. 6483

Thirty-seven plaintiffs filed a products liability action against the manufacturers and sellers of an FDA-approved implanted medical device which utilized a genetically engineered protein to stimulate bone growth.  The plaintiffs alleged that off-label uses of the device caused them to suffer a variety of injuries, including nerve damage and abnormal bone growth.  The defendants moved to sever and dismiss each of the cases based upon the doctrine of forum non conveniens, as only one of the plaintiffs resided in California. The defendants argued that the cases should be tried in the plaintiffs’ home states, because the only defendant residing in California, a physician who invented part of the device and allegedly promoted it, was merely a nominal defendant whose presence should not be considered in the alternative forum analysis.

The trial court granted the motion on the basis that each plaintiff’s home state was an available alternative forum, and the public and private factors weighed in favor of pursuing the actions in the plaintiffs respective home states. As to the sole California defendant, Dr. Michelson, the court concluded that the claims against him were nominal, and therefore dismissed those claims. The court of appeal affirmed the order dismissing the out-of-state defendants, but reversed as to the dismissal of the physician, holding that while the presence of a nominal defendant cannot defeat a forum non conveniens motion, a court cannot dismiss the nominal defendant on that basis alone: Read the rest »

 

Liability Releases — Gross Negligence

By on December 1, 2015 - Comments off

Woman on Treadmill liability

Jiminez v. 24 Hour Fitness USA, Inc. (Third District, June 9, 2015) 237 Cal.App.4th 546, 188 Cal.Rptr.3d 228, 15 Cal. Daily Op. Serv. 5893, 2015 Daily Journal D.A.R. 6334

A woman filed suit against a fitness center after sustaining a severe head injury when she fell rearward from a moving treadmill and struck her head on a nearby exercise machine. The plaintiff alleged that although the treadmill manufacturer had recommended in the owner’s manual that there should be a clear area behind the treadmill with a minimum space of 6 feet deep by 3 feet wide, the piece of equipment struck by the plaintiff was just under four feet away. The plaintiff further alleged that the defendant’s act of placing other equipment within the safety zone increased the risk of injury, thereby rendering the release unenforceable against a claim of gross negligence.

The defendant moved for summary judgment based upon a liability release in the membership agreement, arguing that its conduct could not be considered grossly negligent. The trial court agreed, finding that as a matter of law, a space of three to four feet as opposed to the recommended six-foot safety zone cannot constitute gross negligence, because it does not reflect an extreme departure from the ordinary standard of conduct, and that the placement of the treadmill constituted at most, ordinary negligence. However, the court of appeal reversed, holding that triable issues of fact remained on the issue of whether the defendant’s conduct amounted to gross negligence: Read the rest »

Posted in: Liability Releases

 

Ostensible Agency – Medical Services

By on November 24, 2015 - Comments off

empty hospital bed

Whitlow v. Rideout Memorial Hospital, (Third District, June 9, 2015) 237 Cal.App.4th 631, 188 Cal. Rptr.3d 246, 15 Cal. Daily Op. Serv. 5902, 2015 Daily Journal D.A.R. 6373.

The children of a woman who died from a massive brain hemorrhage two days after being treated for a headache at a hospital emergency room, filed an action for medical malpractice against the hospital. The plaintiffs alleged that the physician, who was an independent contractor, was an ostensible agent of the hospital, and that his negligence was a cause of their mother’s death.

The hospital moved for summary judgment, contending that as a matter of law it could not be held liable for the acts of the physician, and provided evidence that the decedent had signed a “Conditions of Admission” form, which provided that “[a]ll physicians and surgeons furnishing services to the patient, including the radiologist, pathologist, anesthesiologist and the like, are independent contractors and are not employees or agents of the hospital.”   The defendant also provided evidence that there was a sign on the wall of the registration area of the emergency department that stated: “Emergency physician services will be billed to you separately from the hospital’s services,” and that the insignia on the clothing the doctor was wearing while treating the decedent identified him as an employee of “California Emergency Physicians.”

The trial court granted the motion for summary judgment, finding that, as a matter of law, the emergency room physician was not the ostensible agent of the hospital. However, the court of appeal reversed, holding that triable issues of fact existed as to the question of ostensible agency: Read the rest »

 

Civil Rights – Proposition 209

By on November 17, 2015 - Comments off

pen on paper_k7148426

Baez v. California Public Employees’ Retirement System (Second District, May 8, 2015) 186 Cal.Rptr.3d 781, 15 Cal. Daily Op. Serv. 4519, 2015 Daily Journal D.A.R. 5150

A Latino investment fund manager sued the California Public Employees’ Retirement System (CalPERS) and its chief investment officer, alleging that the defendants had denied him the opportunity to manage an investment fund, in addition to two others he and his partners were already managing, on the basis of racial animus.  In addition to causes of action for negligent and intentional interference with prospective economic advantage, the plaintiff also asserted a cause of action under  article I, section 31 of the California Constitution (Proposition 209) which provides that “[t]he State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”

The trial court sustained the defendants’ demurrer without leave to amend, but the court of appeal reversed and remanded, holding that although the plaintiff should have been permitted an opportunity to amend his complaint to state a cause of action under State constitution’s general equal protection clause (Art. I, § 7, subd. (a)), the trial court had correctly found that the plaintiff had not stated a claim under section 31 because he was not challenging a preferential treatment program: Read the rest »

Posted in: Negligence

 

Indian Tribes – Sovereign Immunity

By on November 10, 2015 - Comments off

gambling_k0154146

Cosentino v. Fuller (Fourth District, May 28, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 5303

A man who was terminated from his job as a table games dealer at an Indian tribal casino filed suit against five members of the tribe’s gaming commission responsible for licensing individuals involved in the tribe’s gaming activities and overseeing those activities. The plaintiff alleged that he was terminated in retaliation for acting as an informant for the California Department of Justice as part of an investigation into criminal activity on the gaming floor, and that the defendants had  suspended and then revoked his gaming license without explanation or cause.

The defendants specially appeared and filed a motion to quash and dismiss, arguing that sovereign immunity deprived the court of subject matter jurisdiction because the plaintiff had based all of his claims on defendants’ official actions as members of the tribe’s gaming commission. The trial court agreed and granted the motion, but the court of appeal reversed, holding that the evidence in the record showed that they had exceeded their authority by revoking the plaintiff’s license, and therefore sovereign immunity did not apply: Read the rest »

 

Special Relationship — Duty to Disclose

By on November 5, 2015 - Comments off

summer camp_k21345612

Doe v. Superior Court (Sixth District, May 29, 2015) — Cal.Rptr.3d —-, 2015 WL 3429130

 The parents of an 8-year-old girl who was molested by a summer camp supervisor, filed an action against the church which ran the camp.  The parents asserted a number of causes of action on behalf of their daughter, as well as their own causes of action for intentional and negligent concealment. The parents alleged that the defendant had a duty to disclose to them the fact that the employee had previously been terminated for inappropriate conduct with other children, and that after he had been rehired he was fired again when employees suspected him of having engaged in inappropriate conduct with their daughter.

The trial court sustained the defendant’s demurrer to the parents’ intentional and negligent concealment causes of action without leave to amend, reasoning that while the defendant camp may have had a special relationship with children who attended the camp sufficient to create a duty to prevent harm to them, “a duty to prevent harm is not the same as a duty to disclose.”  However, the court of appeal issued a peremptory writ of mandate directing the trial court to vacate the order, and to issue a new order overruling the demurrer, holding that the camp’s duty to exercise reasonable care to prevent harm to the minor and her parents encompassed a duty to disclose a credible report of harm suspected to have already occurred: Read the rest »

Posted in: Duty to Disclose