James J. Kilpatrick

In pursuing the case to the nation's highest court, Ford has marshaled an impressive cast of a dozen appellate lawyers, headed by former solicitor general Theodore B. Olson. The National Chamber of Commerce, the Alliance of Automobile Manufacturers and the Product Liability Advisory Council have pitched in with amicus support. Together they contend that the California court's interpretation of product liability "renders California law so vague as applied to product design that manufacturers have no idea what conduct in hindsight might be deemed 'malicious' and thus subject them to punishment."

Before this trial, counsel assert, "11 Ford Explorer cases involving similar claims had gone to judgment, and in all 11 cases judgment was entered in favor of Ford." Since the trial, Ford has won similar cases in Mississippi and West Virginia. In the California case at hand, the company charges that the trial court ignored evidence that the Explorer "had one of the best rollover rates compared to other SUVs in its class." Ford had presented voluminous expert testimony on industry standards for such vehicles, but the appellate court had ruled that "compliance with industry standards or custom was irrelevant not only to the issue of defect, but also to punitive damages."

In sum, Justice Nares' award of damages "flatly contravenes the Due Process Clause's prohibition on punishments based on standards that are so vague that they neither meaningfully inform the defendant of what conduct is proscribed nor prevent the arbitrary infliction of punishment."

There was persuasive testimony in this case that if Ford executives had been willing to make a $20 improvement in the Explorer's wheel design, the accident that crippled Benetta Wilson might not have happened. Frugality won, and Benetta Wilson lost. Justice Kilpatrick, meaning me, would let the judgment stand. A better case can be found for revisiting an eternal question: How much is too much? And how much is not enough?

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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