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U.S.A.:Explorer verdicts go Ford's way,Automaker wins 10 straight rollover suits

By Eric Mayne / The Detroit News

DEARBORN — The Ford Explorer has been the target of hundreds of product liability lawsuits, but Ford Motor Co. successfully has defended the popular sport utility vehicle in 10 consecutive jury trials.

In fact, while Ford has settled dozens of lawsuits charging the Explorer is unstable and prone to rollovers, the company claims it never has lost a jury verdict on a design issue.

In the past month alone, Ford has prevailed in three Explorer rollover cases seeking millions of dollars in damages.

While the victories help Ford avoid potentially huge verdicts, they also strengthen the company’s bargaining position in dozens of outstanding Explorer rollover lawsuits.

“Those jurors who have seen and heard the evidence in these cases confirm what real-world experience and testing prove: The Explorer is a safe vehicle, consistently performing as well as or better than other vehicles in its class,” said John Mellen, the automaker’s associate general counsel for litigation.

“We believe strongly in our products and we will continue to aggressively defend them.”

The safety of the Explorer became a national issue in 2000 when the Firestone tire controversy erupted. More than 200 deaths and 700 injuries in the United States were blamed on Ford Explorers rolling over after the tread separated on Firestone tires.

Firestone claimed the design of the Explorer played a role in the accidents. In 2002, the National Highway Traffic Safety Administration cleared the Explorer after it found the vehicle no more rollover-prone than other SUVs.

Even so, the number of lawsuits exploded during the controversy. Ford won’t disclose how many lawsuits it has been forced to defend because of defect allegations leveled against the Explorer, the best-selling sport utility vehicle in automotive history.

Nor will the automaker reveal how many cases have been settled out of court, although Ford spokeswoman Kathleen Vokes said it’s the vast majority of the cases.

“There is always a good-faith effort to settle the case,” Vokes said. “It’s plaintiffs who determine which cases go to trial. If we can come to an agreement that’s fair to the customer and fair to Ford’s shareholders, then we try to settle.”

The settlements have cost Ford millions of dollars.

In one high-profile case and settlement, Donna Bailey, 44, suffered a spinal cord injury that paralyzed her from the neck down after the two-door Ford Explorer in which she was riding crashed March 10, 2000, near Poth, Texas. The terms were not disclosed, but published reports estimate that Bailey received between $20 million to $35 million.

California plaintiff lawyer Garo Mardirossian estimates Ford has settled about 1,500 Explorer cases, adding he has six pending. He also takes issue with the automaker’s perfect record claim.

“They’re telling a half-truth,” said Mardirossian, who argued for the plaintiff in one of the 10 cases Ford counts among its product liability trial wins.

In January 2002, Mardirossian said, a jury ruled that Explorer had a design defect but was not liable for the injuries to a pregnant woman and loss of her unborn child. The jury instead ruled that a dealer who sold the vehicle was liable for failing to address a mechanical problem with the vehicle.

And despite Ford’s success in the courtroom, U-Haul International Inc. recently decided to refuse to rent trailers to anyone driving a Ford Explorer.

North America’s largest trailer rental company, U-Haul cited the cost of litigation — not safety concerns.

The automaker recorded its most recent Explorer trial victory this month. It involved a crash that occurred in May 2000 near Johnson City, Tenn.

Cheryl Metrey, 54, an assistant school superintendent from New Jersey, died of injuries she suffered when the Explorer in which she was riding hit a concrete median on the highway and flipped several times before coming to a stop upright.

Metrey’s family alleged the vehicle was unstable and rollover-prone. But other testimony in the New Jersey case indicated the victim’s husband, who was driving, fell asleep behind the wheel.

Despite Ford’s successes in court, the Explorer is likely to remain a magnet for lawsuits, said Ted Boutros, a Los Angeles-based lawyer who advocates tort reform such as award limits as a hedge against system abuses.

“In terms of the plaintiffs’ bar, they’re very well-organized and they look for lawsuits in areas where there has been a lot of publicity,” Boutros said. “They share information, and once they obtain an archive of material, they file lawsuit after lawsuit, irrespective of the facts.”

They’re motivated, he claimed, by a “deep-pocket mentality” — the belief that large corporations and institutions portend big paydays.

“There is, I think, in our legal system, this notion that lightning will strike and the plaintiffs’ lawyer will hit the jackpot and collect a huge verdict,” said Boutros, who has represented Ford and DaimlerChrysler AG’s Chrysler Group in product liability cases.

Mardirossian scoffs at the notion that lawyers are filing meritless lawsuits in search of a payday.

“You don’t take on Ford Motor Co. just because you feel like it, or just because you’ve got nothing better to do,” he said. “Because Ford Motor Co. will come down hard on you.”

Mardirossian has come perhaps the closest to beating Ford in an Explorer design case. He represented Agop and Catherine Gozukara, who in May 1997 were driving their 1997 Explorer from Newport Beach, Calif., to Las Vegas when the vehicle was involved in a crash and rolled over.

Catherine, who was pregnant, was ejected from the vehicle and suffered injuries that left her a paraplegic. The couple also lost their unborn child.

Five years later, a jury ruled that the Explorer did have “a defect in design,” Mardirossian said, bolstering his claim that Ford has a less-than-perfect record. But the jury also found the vehicle did not cause the crash, so Ford was not liable for any damages.

To the contrary, Ford won $400,000 in court costs from Mardirossian and other plaintiffs’ attorneys. However, the Gozukaras won a $14.9 million judgment from their Ford dealer which, the jury also found, had failed to address a mechanical problem on their vehicle.

One question is posed repeatedly by Ford’s critics: If the Explorer is safe, why has Ford paid out millions in settlements?

“It’s not that juries are bad, it’s just that they’re made up of caring individuals,” said Boutros, who has defended Ford. And emotion can skew decisions.

“It’s that unpredictability that, I think, causes companies to settle,” he said.

Bruce Kaster, a Florida trial lawyer who also has Explorer cases pending, has another theory: “They settle the cases they’re going to lose.”

An Explorer rollover in 1997 left Catherine Gozukara a paraplegic. Although a jury ruled the vehicle's design was flawed, it determined the sport-ute did not cause the crash.

Reasonable doubt

Here are some recent lawsuits in which Ford Motor Co. successfully defended the Explorer SUV after a rollover accident.
* A New Jersey jury this month found Ford not liable for the death of school administrator Cheryl Metrey, 54, who was killed after her husband lost control of their Explorer in Tennessee in May 2000.
* A jury in Philadelphia cleared Ford of liability in December in a lawsuit filed by Rashad Flowers, 23, who was paralyzed and lost his left leg after a January 2001 accident.
* Ford prevailed in December in a lawsuit in Cobb County, Ga., when a jury rejected a claim by Vittorio and Rosanna DiMaso that their 1992 Explorer had a flawed design and Ford failed to inform the public.

Source: Ford, Detroit News research

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