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Ford lawyer makes Explorer apology

By Eric Mayne and Brett Clanton / The Detroit News

A record $368.6 million jury verdict earlier this month against Ford Motor Co. in San Diego ended the automaker’s win streak defending the Ford Explorer’s design and safety, but also may have opened the door for more lawsuits.

Plaintiffs’ lawyers and legal experts are abuzz over closing arguments by a Ford lawyer during the punitive stage of the trial. The statements seemed to fly in the face of Ford’s fierce defense of the best-selling SUV’s safety to Congress, federal regulators and in nationwide TV commercials.

“It’s impossible not to be angry at Ford Motor Company for what decisions that in marketing and selling this Ford Explorer it knowingly put a defective product out on the market and caused the family tragedy that you see before you now,” Ford lawyer Anthony Sonnett told a jury that had already awarded $122.6 million in compensatory damages to a woman who was paralyzed in a rollover crash.

Ford contends Sonnett was not representing the automaker’s opinion.

He was merely acknowledging the jurors’ earlier conclusion that the Explorer had safety issues and Ford should have taken corrective action.

But Sonnett went on to tell jurors: “We are sorry that we let you down. The engineers are sorry that they let the rest of the company down. There is nothing else I can really say to you at this point. I understand a feeling that perhaps it’s too little too late, or it rings hollow, or (Ford Chairman and CEO) William C. Ford (Jr.) is not here to say it himself. But I wouldn’t feel right if I ended this without saying that indeed we are sorry.”

After Sonnett’s closing, the jurors socked Ford with an additional $246 million in punitive damages, concluding Ford had acted with fraud or malice in its design and marketing of the Explorer.

Punitive damages are assessed as a penalty against defendants. Compensatory damages are awarded to victims and paid by defendants.

While three of the 12 jurors sided with Ford, some of the remaining nine hugged the plaintiff, Benetta Buell-Wilson, 49, after the trial. Buell-Wilson was injured in a wreck involving her 1997 Explorer. Her lawyer contended that the Explorer’s design made it prone to rollovers and roof collapse.

The $368.6 million total award is believed to be the largest verdict ever against an automaker in a single product liability case. Prior to the verdict, Ford had successfully defended the Explorer’s design in 13 consecutive product liability trials.

University of Detroit Mercy law professor Gary Maveal warned that Sonnett’s comments could come back to haunt the automaker.

“As an evidence professor, I think it’s quite clear that they could introduce that statement (the lawyer’s apology) on behalf of the whole company,” Maveal said. “I think that would be hard to keep out in a later trial.”

Ford and Buell-Wilson are awaiting a judgment that will finalize what the automaker must pay. But Ted Boutros, a member of Ford’s legal team on the case, said an appeal is in the works.

And Boutros vehemently denies Ford or the design of its flagship SUV are at fault for the 2002 crash in which Buell-Wilson’s 1997 Explorer rolled over nearly five times after she swerved to avoid an object in her path. Today, the 49-year-old mother of two is paralyzed from the waist down.

“The notion that Mr. Sonnett decided and Ford decided that they would agree with the plaintiff’s lawyers who were waging war on the Explorer is ludicrous,” Boutros said. “It’s in some ways a measure of the desperation on plaintiffs’ lawyers that they would seize on this. Ford won 13 of these cases in a row.”

Sonnett did not return phone messages left at his California office.

The Explorer has been and remains the focus of legal action in hundreds of cases since a pattern emerged in 2000. The SUV was linked to at least 271 rollover deaths. Ford has settled dozens, if not hundreds, of Explorer lawsuits.

The National Highway Traffic Safety Administration investigated the accident data, but blamed the problem on defective Firestone tires. While Ford noted seat belt misuse contributed to most of the deaths, NHTSA found no cause to investigate the Explorer’s design, which was overhauled for the 2002 model year.

“You heard evidence throughout this case that the newer generation Ford Explorer has a track width which is wider than the ’97 model Ford Explorer,” Sonnett told jurors, adding the 2005 model will feature electronic stability control, which automatically slows a vehicle when conditions are ripe for rollover.

“We understand what you feel we did with the ’97 Ford Explorer. We have taken measures in the new Fords and all of our vehicles to try to increase the safety to our customers as much as possible. ... Message received.”

Ford has built more than 5 million Explorers since the SUV made its debut in 1990. The automaker maintains all are safe because they meet government guidelines, but Sonnett’s closing argument suggests there is confusion.

“We have one story that’s an official statement and we have another story of the lawyer who represents Ford,” said Roger Braugh, a Texas lawyer who has handled more than 50 product liability cases against Ford.

As Ford began piling up courtroom wins, hand-picking cases to bring before juries while settling others, the automaker’s strategy took “a definite change in direction,” Braugh said. In one instance, Ford sued the mother of a girl who sued the automaker.

The girl, Melissa Bradford, was injured in 2002 when her mother lost control of their 1998 Explorer. Melissa claimed the vehicle was defective, but Ford countered by saying her mother, Penny Bradford, was at least partly to blame because of driver error.

After Braugh agreed to represent Penny Bradford, Ford withdrew its claim against her in March.

Safety advocates remain skeptical of the Explorer’s safety record. Clarence Ditlow, executive director of the Washington-based Center for Automotive Safety, dismissed Sonnett’s apologies.

“They’re following a script of contrition before the jury in the hopes that the jury will lower the amount of punitive damages, or not impose any,” Ditlow said.

Ford denies any suggestion that its flagship SUV is unsafe.

“The Explorer meets or exceeds all federal safety standards,” spokeswoman Kathleen Vokes said. “There is no defect with the Explorer.”

Ford has employed hardball tactics in product liability trials, delaying the production of evidence, offering low-ball, take-it-or-leave-it settlements, counterattacking plaintiffs and spending hundreds of thousands of dollars in its defense, according to court documents, legal experts and attorneys involved in the cases.

The verdict in the Buell-Wilson case came after a two-month trial, where jurors were able to weigh an unusually complete record of evidence.

Sean Kane, an Explorer critic who works with Strategic Safety, a legal research firm, said product liability lawyers have been buzzing about the Buell-Wilson case and its implications for other lawsuits. Such a large verdict in a conservative venue — San Diego — sends a warning to Ford.

The message from Sonnett’s closing statement added fuel to the fire, Kane said.

“The Ford lawyer is admitting they produced a defective vehicle and they didn’t do anything about it,” Kane said. “It appears after losing the trial, Ford decided to embrace the truth hoping the jurors wouldn’t punish the company much more,” Kane said.

The verdict in the Buell-Wilson case, which includes punitive and compensatory damages, is equivalent to more than 20 percent of the pretax earnings Ford made from its automotive operations during the first quarter of this year.

While Braugh and Boutros agree Ford will not change its legal strategy, Ditlow said the Buell-Wilson verdict will resonate.

“When the government fails the public, lawsuits are the only way to make the manufacturers change,” Ditlow said.
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