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A bill by Texas state Rep. Fred Bosse would eliminate certain tort reform protections for companies that knowingly conceal information from the public about dangerous defects in their products that cause injuries or deaths. Under H.B. 3125, a defendant who engaged in deceptive conduct that endangered the public could face unlimited damages. The bill provides that each defendant found to have deceived the public about the risk posed by a product would not qualify for the cap on punitive damages and could be held jointly and severally liable for damages to the plaintiff. Those who engage in malicious conduct that puts the public’s safety at risk also could be charged with a crime. The bill makes it a second-degree felony, punishable by two to 20 years in prison, to deceive the public about the risk associated with a product. Bosse, a Democrat and Houston solo, says the bill is intended to address “very narrow fact situations” in which a business hides from the public the fact that a product is defective and could be dangerous. “All it does is address the very worst of actors,” Bosse says. But Jon Opelt, executive director of Houston-based Citizens Against Lawsuit Abuse, says it’s a bad bill that seeks to undo tort reforms enacted by the Legislature in 1995. “It is a clear attempt to eliminate the state cap on punitive damages and to tomahawk reasonable civil justice laws,” Opelt says. “The bill intrudes upon carefully crafted product liability, deceptive trade and punitive damage law,” he says. “It increases penalties, reduces the burden of proof and dilutes important standards.” Opelt says the bill lowers the burden of proof in punitive damage claims. The bill would apply to a claim stemming from personal injuries or deaths caused by a defective product if the plaintiff proves by a preponderance of evidence that a company engaged in deceptive conduct to prevent the public from learning about the risk. The standard for recovering punitive damages in such cases has been clear and convincing evidence that a company was aware of the high risks of their product and didn’t inform the public. NOTHING TO FEAR “Responsible corporations have nothing to fear [from the bill],” says Richard Mithoff, who represents a number of clients in suits against Ford Motor Co. and Bridgestone/Firestone for deaths and injuries in Ford Explorer rollovers allegedly caused by tread separation in Firestone tires. Mithoff, a partner in Mithoff & Jacks in Houston, says the bill is aimed at companies that hide damaging internal reports about their products. Tom Rhodes, a partner in Lyons & Rhodes, alleges that Firestone knew about the defect in their tires at least three months before 19-year-old Ashley Fuhrmann died in an Explorer rollover but didn’t know how to do the recall. The Baylor University student was killed on March 11, 2000, in an accident on Interstate 45 north of Centerville while driving herself and several friends back to college after a spring break vacation in Louisiana. “If they would have disclosed this information even as late as January [2000] … Ashley would still be alive today,” Rhodes says. Firestone recalled about 6.5 million tires in August after numerous accidents involving rollovers of Ford sport utility vehicles equipped with the company’s tires. Rhodes represents Fuhrmann’s mother in a suit filed in Orange County. Dawn Fuhrmann, et al. v. Bridgestone/Firestone, et al. is scheduled for trial on May 21. Vinson & Elkins partner Knox Nunnally of Houston, who represents the tire maker, was out of town and could not be reached for comment by press time. Jill Bratina, a spokeswoman for Bridgestone/Firestone, says the company cannot discuss specifics of any case. “When it became clear to us there was a need to recall these tires, we did so,” Bratina says. “Ford did not withhold information,” says Kathleen Vokes, a spokeswoman for the auto manufacturer. “It was a tire recall. It was not a vehicle recall.” Bosse says his bill addresses situations like those raised in the Ford and Bridgestone/Firestone cases but would not apply retroactively. Dawn Fuhrmann, a San Antonio resident, was one of several Texans who lost or had loved ones injured in accidents allegedly related to Firestone tires. She testified in support of the bill during a March 21 hearing of the House Civil Practices Committee. “This bill will not help my family or save my daughter today but it will save people from going through this pain,” Fuhrmann says. Dan Lambe, executive director of Texas Watch, says eliminating the tort reform protections for companies that conceal information about defective products is “the stick in this bill” to get them to reveal the truth. “H.B. 3125 would help get unsafe products off the shelves of the Texas marketplace and make Texas a safer place for Texas families,” Lambe says. Opelt says, “If lawmakers truly want to improve consumer safety, then they should require that all related punitive awards be spent solely on the research and development of safer products.” Mithoff says a compromise could be reached on the bill to provide for a portion of the punitive damages to be spent to improve product safety.

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