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In a decision that brings joy to the auto industry, an appeals court has reversed a ruling that would have made New Jersey the first state to hold automakers liable for accidental harm to people riding in the back of pickup trucks. An Esssex County judge had ruled as a matter of law that the absence of a warning displayed on a Ford Ranger – warnings on all pickups are in owners’ manuals only – made the vehicle a defective product. The plaintiff, a woman paralyzed in a Ford Ranger crash, was awarded $4.5 million plus interest. But a three-judge court on May 26 said the adequacy of warnings is a jury question, ordered a new trial and ordered Superior Court Judge Carol Ferentz off the case, citing evidence of her antagonism toward Ford Motor Co. and its lawyers. A loss for Ford would have made the warning requirement in New Jersey tougher than in any state and or in regulations of the National Highway Transportation Safety Administration. Ferentz had said, in effect, that every pickup truck sold over the past two decades was a defective product, the company argued. No wonder defense lawyer Robert Toland II, a partner with Campbell Campbell Edwards & Conroy in Wayne, Pa., said Ford is pleased with the reversal. “As the court recognized, Ford presented an abundance of evidence that an on-vehicle warning sticker is not appropriate in the bed of a pickup truck instructing passengers not to ride in the back,” Toland said. John Collins, the plaintiff’s lawyer in the case, Bialek v. Pinto, A-1088-01T5, said he will ask the state Supreme Court to reinstate the trial court ruling. If that fails, he will have a chance on remand to convince a jury to render a verdict identical to the one by Ferentz. She got it right, Collins said. “Without the warning, the Ford Ranger is a defective product,” said Collins, of Denville’s Bongiovanni Collins & Warden. In a new trial, there would be no review of the damage award, which interest brought to $8.1 million in Ferentz’s judgment. The proceeding would just be about whether Ford has to pay any of it. Ferentz cannot hear a remand because her comments at the trial were “sufficiently antagonistic towards Ford and its pro hac counsel, even though most were outside the presence of the jury, to create a perceived predisposition in favor of plaintiff,” according to the per curiam opinion by Judges James Ciancia, Francine Axelrad and John Wallace Jr., who joined the state Supreme Court last month. The court stopped short of saying, as Ford claimed, that Ferentz’s antagonism rose to the level of reversible error. Every year, about 200 people in America are killed in crashes while riding in the back of pickup trucks, according to the NHTSA. At high speed, passengers are hurled out, and staying inside isn’t always better. A 150-pound passenger sitting in the rear of a cargo bed of a truck in a 15 mile-per-hour front-end collision is thrown forward, striking the rear of the cab with 3,400 pounds of force, sufficient to snap a spine. The auto industry takes the position that a warning on the vehicle would do nothing to reduce the toll. Auto safety experts for the industry have cited studies that show teenagers and people in their 20s are traditionally the least receptive to safety warnings on labels. The NHTSA declined to require the warnings when it studied the issue in 1995, finding that warnings every manufacturer put in their owners’ manuals were sufficient. NHTSA also noted that the industry had joined a broad-based effort to educate the public about the dangers of riding in the cargo areas of vehicles. By the industry’s reckoning, those programs have paid off. Surveys have shown that more than 80 percent of the population is aware of the danger. The industry also has said that a warning can’t be any more effective than laws in most states, including New Jersey, that make riding in the back of a pickup a motor vehicle violation. But what’s the harm of putting a warning label on the cargo bed, anyway? “If they did that, they would be opening themselves up for liability for all the years they didn’t do it,” Collins said. Besides the issue of whether a warning is necessary, Collins’ case is about whether 15-year-old Karen Bialek would have heeded one on March 31, 1988, when she climbed into the back of a friend’s pickup truck in Totowa and became a grim statistic. A car driven by a drunk hit the truck, hurling Bialek forward with force that paralyzed her from the chest down. At the time, New Jersey’s no-fault laws enabled victims like Bialek to recoup the full amount of their medical expenses regardless of coverage, so Bialek’s care has been fully funded, Collins said. But Bialek, now living in Orlando, Fla., hasn’t received much more. During a 1995 trial in which the drivers and Ford were defendants, a jury found the two drivers liable and awarded $4.5 million. But their coverage was limited to a total of $200,000 and they were otherwise judgment-proof, Collins said. When it came to Ford, the jury did a curious thing. In its answer on the verdict sheet, the panel exonerated Ford, finding that ordinary users would recognize that it’s unsafe to ride in the back of a pickup. That meant, in effect, the lack of an on-vehicle warning didn’t make Ford liable. But when apportioning liability at the end of the verdict sheet, the jury attributed 10 percent to Ford. Superior Court Judge Jack Kirsten spotted the inconsistency but rejected Collins’ request to have the jury redeliberate and clear up the confusion. Instead, the judge molded the verdict to a no-cause in favor of Ford. That was a mistake, an appeals court ruled in 1996, sending the case back for retrial against Ford. On the plus side for Collins and his client, the damages were fixed by the first trial, leaving Ford’s liability the only issue. And this time, Collins got a judge in Ferentz who was more in tune with him and his version of the law. Perhaps too much in tune. During three weeks in August 2001, Ford’s trial counsel presented expert evidence consistent with the industry’s longstanding position – unchallenged by NHTSA – that warnings are unnecessary and not particularly beneficial in convincing people not to ride in the back of pickup trucks. Collins sought to refute the defense by presenting expert testimony that warnings in an owner’s manual aren’t enough to deter riding in the cargo area. The plaintiff’s evidence also showed that Bialek, given her intelligence and experience, would have heeded a warning if it had been there. In a New Jersey products liability claim that alleges a failure to warn, a plaintiff is afforded the presumption that he or she would have followed an adequate warning had one been provided. A defendant can rebut the presumption by presenting evidence of what the plaintiff knew, and Ford did so in the Bialek case. But before the issue went to the jury, Ferentz found as a matter of law that Ford had failed to rebut the heeding presumption and ordered a directed verdict on causation. That left, for the jury, the crucial decision on whether warnings were necessary, but the panel couldn’t reach a verdict on the issue. So on that question, too, Ferentz directed a verdict for the plaintiff. Even Collins may not have thought it was the right decision. He asked Ferentz to immediately empanel a new jury and retry the case, but she declined, sending Collins home with a victory that has proved to be ephemeral. Now he said she made the right decision; he said he asked for a new trial only to make it more of a sure thing. In its reversal, the appeals court said Ford presented enough evidence to make both the “heeding” issue and the issue of the necessity of a generic warning matters for a jury. “The fact that no other manufacturer placed an on-product warning in the cargo area unless there were seats there and that riding in the cargo area is a motor vehicle violation in New Jersey is additional evidence in favor of Ford,” the court said. It concluded: “Reasonable minds could differ on whether the warning Ford provided was adequate in light of industry standards, federal government requirements, and the open and obvious nature of the hazard.” Ford made Ferentz’s demeanor its first ground for reversal, but the appeals court didn’t adopt the argument, though it did take her off the case. Ferentz has a reputation for talking to lawyers bluntly when it comes to what she considers violations of court rules, and Essex County lawyers have been debating for years over whether she has too low a boiling point. In 1997, after the Advisory Committee on Judicial Conduct found her demeanor wanting, the state Supreme Court ordered her removal as presiding civil judge. Ford complained in its appeal that she demeaned trial counsel James Campbell, a Massachusetts lawyer who sought to be admitted pro hac vice to replace James Dobis of Livingston’s Dobis & Reilly, a longstanding Ford lawyer in New Jersey. To justify the substitution, a Ford in-house counsel testified that there was evidence Dobis had been unprepared in a previous case and that Ford wanted a lawyer in whom it had more confidence. Ferentz reacted sharply, accusing Ford of a sham disparagement of Dobis to justify a pro hac vice application that had been made after the normal time requirements. Ford also accused Ferentz of unnecessary criticism of Campbell’s form for making objections during the trial and of expressing a demeaning assumption – abandoned after the evidence was in – that Campbell’s firm’s office in New Jersey violated the bone fide office rule. And when she disqualified a juror who was employed by a law firm that worked for Ford, she said she did so out of fear the relationship could make the juror feel pressure to agree with Ford. The company, she concluded, “would go to any lengths to make life miserable for somebody.” This article originally appeared in the New Jersey Law Journal , a publication of American Lawyer Media.

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