Too Much? Not Enough? Just Right?

Posted: Mar 20, 2007 11:08 AM

Late on a January afternoon five years ago, Benetta Wilson was driving her 1997 Ford Explorer on Interstate 8 a few miles east of San Diego. A tragic accident left her a paraplegic. Let me quote from the opinion of Justice Gilbert Nares last July in the California Court of Appeal:

"Suddenly, Mrs. Wilson saw what appeared to be a metal object break loose from a motor home in front of her and bounce directly toward her windshield. As she swerved to avoid the object, the wheels on the passenger side lifted from the road, and the Explorer went out of control. The vehicle fishtailed multiple times across lanes and rolled 4 1/2 times, coming to rest on its roof on the road's shoulder ...

"As the Explorer rolled, the roof's pillars and rails crumpled, and the roof crushed down more than 10 inches, causing severe injuries to Mrs. Wilson. Inside the vehicle, she hung upside down from her seatbelt, in 'crushing, unbelievable pain,' gasping for breath and feeling as if her life were fading away ...

"The compressive forces from the collapsing roof fractured and severed Mrs. Wilson's spine at the T12 level, where the thoracic and lumbar regions meet. She will never recover sensation or function below the level of the injury. In addition to the vertebral fractures, the spinal sac was damaged, causing leaking of cerebral spinal fluid, and portions of the spinal cord and nerve root were pulverized ...

"Mrs. Wilson's resulting paraplegia ended her active life and forced her to painfully relearn basic aspects of daily living, some of which she will never regain. She lives in severe and constant pain. ... Before the accident, Mrs. Wilson was an active, athletic, outdoors woman, with a black belt in martial arts. She often camped and hiked with her family, backpacked with Girls and Boy Scouts, and did projects at Mission Trails Regional Park. She and her husband took dancing lessons, traveled and took walks. She no longer can engage in any of the lifestyle activities she once enjoyed. ...

"The injuries to his wife dramatically changed Mr. Wilson's life as well. The Wilsons no longer share the physical relationship they had prior to the accident. Instead, he is now her caregiver and must assist her with the most personal of care, including showering and catheterizing her."

There is much more. This was a life-destroying accident.

The Wilsons sued Ford Motor Co. and its San Diego dealer. A state jury brought in a judgment against them of $368 million in combined compensatory and punitive damages. The trial judge reduced the award to $150 million. The Court of Appeal trimmed this back to $78 million. From that reduced judgment Ford now appeals to the Supreme Court.

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?