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James Butler on Ford Motor’s Use of the Tackle Box Defense

Last month, Georgia trial lawyer James Butler secured a $1.7 billion punitive damages verdict in a case involving Ford trucks with dangerously weak roofs that would crush down on occupants during a rollover wreck.

The jury awarded the Hills $24,030,500 in compensatory damages. 

The jury returned the verdicts for Kim and Adam Hill for the wrongful deaths of their parents, Voncile and Melvin Hill, and for pain and suffering by their parents after the rollover wreck of their 2002 Ford F-250 on April 3, 2014.

The jury apportioned thirty percent of the compensatory damages against Pep Boys, a tire distributor that mistakenly installed the wrong size, or “load range,” tires on the Hills’ truck in 2010.

That mistake caused the right front tire to blow out, causing the wreck. 

Evidence at trial showed the wreck was survivable, but the crushing of the roof caused the injuries that lead to the deaths of the senior Hills.

Pep Boys settled in 2018. The case has been litigated for several years.

During the first trial, which ended in a mistrial, the Hills had submitted evidence of 69 prior similar wrecks with rollover, roof crush, and killed or injured victims.

In the four years since the 2018 mistrial, more people were killed or injured in such wrecks, and at the second trial plaintiffs submitted evidence of ten more such wrecks. 

Ford declined to say how many more other similar incidents were known to the company.

The punitive damage verdict is the largest verdict by far in Georgia history – eclipsing the previous verdict of $457 million in the Six Flags case 24 years ago.

Ford was represented by William Withrow of Troutman Pepper, Mike Boorman and Phillip Henderson of Watson Spence, Paul Malek of the Huie firm from Birmingham, and Michael Eady of Texas.

It was Butler’s eighth verdict of $100 million or more. 

That’s more $100 million plus verdicts than any other trial lawyer in America.

And he was facing down Ford lawyers that Butler says were using the tackle box defense.

Tackle box defense?

You mean like a fishing tackle box?

“Yes. They throw these lures in front of the jury in the hopes that one juror will bite on one lure and another juror will bite on another,” Butler told Corporate Crime Reporter in an interview earlier this month.

“And in Georgia, you have to have a unanimous verdict. The jury gets in the jury room. There is a juror or two with some doubt in their mind and you end up with a compromised verdict. It works like a charm.”

“We had a case in Athens, Georgia in 2005 against Ford involving a Mercury Marquis with a rear gas tank. The car was hit in the rear. There was an instant explosion. And a lady was burned alive. Ford did the same thing before the jury. And we had one juror who held out against us. She cut a deal with the other eleven jurors to give more in compensatory damages, but said no to punitive damages. That’s an example of how it works.”

“Ford, which has no defense for these roofs and never offered any defense for these roofs, violated a whole bunch of orders in limine, mainly trying to blame other people, primarily Mr. Hill. Finally, the judge just declared a mistrial.”

What did Ford say about Mr. Hill?

“Everything you can think of. The worst was when Ford’s lawyer got before a jury holding a toxicology report, which he highlighted and put notes all over. And he was showing that to a jury. He was insinuating that Mr. Hill was under the influence of alcohol. The toxicology report said he was negative for alcohol. Mr. Hill was a Baptist teetotaler. He never had a sip of alcohol in his life. But Ford got up in front of a jury and insinuated he was DUI.”

What was the evidence that he was DUI?

“None. The thing the lawyer was holding in his hand said the alcohol test was negative.”

“They insinuated he was under the influence of prescription drugs. They insinuated that he steered improperly, even though their reconstruction expert said Mr. Hill was not at fault. And yet the lawyers get up and insinuate that his steering is what caused the rollover.”

Under Georgia law, how much of the punitive award goes to the state?

“Seventy-five percent of any actual collected judgment punitive damage goes to the state. That’s been the law since 1987 in a deal that was made on the tort reform bill that year. In the 35 years since then, the state of Georgia has collected on just one punitive damages verdict.”

And why is that? 

“The cases settle.” 

Given the track record of how punitive damage awards play out, what do you anticipate in this case?

“I anticipate that the trial judge will reduce the punitive damage award and then it will go up on appeal.”

When do settlement negotiations happen?

“It can happen at any time. That’s up to Ford.”

Ford had a roof that could have prevented the death of the Hills.

“Yes.” 

Back as far as 2002 when this truck was built, it could have been built with a roof that could have prevented these deaths?

“Yes.”

How many of these Ford roof crush deaths are there every year?

“I don’t know. Ford has a better idea than I do. Ford admitted that as of March 31, 2017, it had been sued 162 times for injuries or deaths in these roof crushes. Ford hasn’t told us the last five years or so it has been sued. But you can do some simple math. Only a fraction of victims ever think to go to a lawyer. And only a fraction of those who go to a lawyer go to one who will spend the time and money to take the case.” 

“If in March 2017, Ford admitted to 162 lawsuits, you have to think that there are at least ten times that many victims.”

About 25 years ago, we covered a criminal prosecution in Elkhart, Indiana. It was a criminal prosecution of Ford for the deaths of two teenage girls whose Ford Pinto was rear ended and they were burned to death. It was a criminal homicide prosecution. It was the last time a homicide prosecution was brought against a major American corporation in the United States. 

There were evidentiary rulings that benefitted Ford, including the judge excluding the famous Pinto cost-benefit analysis memo. They said – we could spend this much to fix the problem, or we could pay for the lawsuits when they are settled. And they didn’t fix the cars.

Was there any cost-benefit memo in this case?

“Ford hasn’t done a written cost-benefit analysis since that experience in the Pinto case. But you don’t have to put it in writing. The math is real simple. You can do it in your head or you can verbalize it.”

“They made 5.2 million of these trucks. When they first designed the roof, beginning in about 1994, they did a full design of the roof. And then they had a cost containment directive to cut costs. And they then took metal out of the roof. They admitted they saved $100 per truck. Right there, you have $520 million in added profit.” 

“The calculation is real simple. There is no way that settling all of the cases brought by victims is going to cost more than $520 million. The cost benefit analysis is very simple.”

“How long did it take me to say it? Thirty seconds? And that’s just the $520 million. They probably saved a lot more than that. By 2005, Ford engineers in the Enhanced Roof Strength Program (ERSP) for the Super Duty trucks came up with a roof that was four and a half times stronger and cheaper to build. And Ford didn’t use that until 2017.”

That prosecutor who brought the homicide prosecution against Ford was very conservative. He saw it as a matter of right and wrong. He saw the Ford cost benefit analysis and brought the homicide prosecution. Why do you sense that there have not been any homicide prosecutions of a major corporation since that one?

“Taking on Ford Motor Company is a tall order. You are facing lawyers and witnesses who will do and say anything. It’s probably beyond what a prosecutor thinks is his or her abilities and resources to do something like that. I don’t know, you would have to ask them.”

Have you ever run across a prosecutor in Georgia who had an inclination to bring a homicide prosecution?

“No. But we litigate cases in 33 states. And we haven’t seen a prosecutor anywhere who had such an inclination.”

Why didn’t the federal safety agency – the National Highway Transportation Safety Administration (NHTSA) – require Ford to put the stronger roof on?

“When was the last time you ever heard of NHTSA doing an involuntary recall? It was 1979. Joan Claybrook was the administrator and Jimmy Carter was President. It was the Jeep CJ-5. That was the last time they did and NHTSA belongs to the automakers.”

  Trial lawyers have been losing the battle for public opinion for years. Why is that?

“What battle are you talking about?” Butler asks.

The battle for the public mind. It plays out in state legislatures across the country.

“I don’t agree with your premise. I don’t think the plaintiffs’ lawyers have lost in the court of public opinion or in legislatures. In some legislatures yes. But in many others we have won.”

Are you saying that overall, in the battles over tort reform in state legislatures, the corporations are losing?

“I didn’t say that. You say the plaintiffs lawyers are losing. I said no to that. The corporations are winning in some places and in some places they are not.”

What about in Georgia?

“In Georgia, we have maintained a pretty fair and impartial tort and court system. But that’s been quite a struggle. Plaintiffs lawyers are their own worst enemies. Alabama and Texas are poster children for the proposition that plaintiffs lawyers are their own worst enemies.”

In what sense?

“I really don’t want to get into that metaphysical discussion. Let’s just say that plaintiffs’ lawyers in some states have overreached badly. And that’s why they have lost so badly. It doesn’t pay to be unreasonable for either side – the plaintiffs’ lawyers or the corporations. And in Georgia, the plaintiffs’ bar has always been very reasonable.”

[For the complete Interview with Jim Butler, see 36 Corporate Crime Reporter 35(13), September 12, 2022, print edition only.]

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