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The case of Brian Phillips appeared to be one in which jurors’ hearts would go out to his grieving family. On July 30, 1997, his mother, Venla Phillips, was driving Brian to a store in Chandler, Ariz., a suburb of Phoenix, so he could rent a video for his birthday. That day Brian had turned 5, just old enough to ride in the front seat. His mother drove west on Ray Road, and the two sang a birthday song. The car entered the Alma School Road intersection, and the singing stopped. Their vehicle, a 1997 Mercury, traveling about 35 mph, struck a car making a turn. The air bags in the Phillips’ car inflated. The passenger side bag struck Brian under the chin and pushed his head upward, breaking his neck. He was airlifted to a local hospital. Within 36 hours, he was dead. Brian’s family sued the Ford Motor Co., claiming that a defective air bag caused the death. After a month-long trial in Maricopa County Superior Court, a jury deliberated for half an hour before finding that Ford was not at fault. Tarango v. Ford, No. CV 98-02262. The Phillips case falls within a subset of air bag litigation that potentially could be costly to the auto industry: cases that go to trial that involve a child fatality from a relatively low-speed crash. But, recent results suggest, the automakers are picking the right cases for trial. In the past 14 months, the only four cases to be tried have resulted in defense wins, including two in the past month, according to lawyers who specialize in air bag litigation. [See Related Chart.] The common denominator among the four cases shows why the automakers were willing to risk a trial: The child was sitting in the front seat and either was not wearing a seat belt or, the jurors concluded, the child was improperly belted. That made all the difference. “I think one of the trends is that the manufacturers have gotten very selective about which cases to take to trial, and they won’t take a case to trial unless they can point to some negligence on the part of the plaintiff,” says Clarence Ditlow, executive director of the Center for Auto Safety, the Washington, D.C.-based consumer group. WHAT’S THE MESSAGE? Lawyers are split over the significance of these defense wins for air bag litigation that does not involve improperly belted children. Auto industry lawyers believe that it sends a message. “I think the verdicts that have come down in the last six months show that air bags will not be the next big battleground for the plaintiff’s bar,” says Tom Vanderford, director of products liability at automaker Hyundai. The eight jurors in the Phillips case took about 10 minutes on June 5 to find that Ford was not negligent, says Barbara Hoffnagle, the jury forewoman. The jurors concluded that Brian’s mother probably ran a red light and that the air bag design and its warning about safety concerns were proper, but the key fact was that Brian, at best, was wearing only the waist portion of the seat belt, and not the shoulder harness, she said. “If you are driving a vehicle, it is a privilege, and you have an obligation to protect the occupants,” said Hoffnagle, an executive at a public utility in Phoenix, and the mother “had failed to properly restrain her child.” The most recent defense verdict came on June 29 when a Bexar County District Court in San Antonio found no liability for the automaker. Vasquez v. Hyundai, No. 1999-CI-14064. Lawyers in these cases agree that the facts in one case are sadder than the next. Amber Vasquez, 4, was seated in the front seat of a Hyundai Accent, not wearing a seat belt, during the four-block ride from her home to her grandmother’s house on Oct. 1, 1997. The sun blinded the driver of another car, who didn’t see the car carrying Amber coming as she turned into a driveway. The two cars collided, deploying air bags in both vehicles. The only one hurt seriously was Amber. Because she was not wearing a seat belt, she was thrust forward during the collision, and her head struck the inflating air bag. She suffered a severed spine and died later that night. After a three-week trial, it took the jurors five hours to find Hyundai not liable. The importance of the seat belt issue is made clear by what plaintiffs’ attorney Michael Caddell, of Houston’s Caddell & Chapman, says is the key issue on appeal. He says the judge denied his client a fair trial because the 12-person jury was picked without the jurors’ being asked whether they could keep an open mind in the case if they learned that the child was not wearing a seat belt. The importance of this omission, Caddell says, became clear before trial when the judge allowed such questioning of the first two jury panels, but because so many jurors expressed bias, those panels had to be dismissed. The judge disallowed such questioning for the third jury panel, from which the jury was picked, Caddell says. “It turns out that during deliberations, five out of the 12 jurors said they had decided the case as soon as they heard the girl was not wearing a seat belt,” says Caddell. SAFETY WITH RISK No one disputes that air bags save lives. According to the National Highway Traffic Safety Administration, they have saved 6,856 lives in auto accidents in the United States. But the agency also reports that air bags in the past decade have killed 175 people, 104 of them children. With so many fatalities, scores of wrongful-death suits have been filed, although no one seems to know exactly how many. Most cases are resolved or settled before trial. Only six involving child deaths have been tried to verdict, lawyers say, including the four recent ones. When plaintiffs’ lawyers say it’s not impossible to win one of these trials, they first point to Crespo v. Chrysler, No. 97 Civ. 8246. In 1998, a jury in a U.S. district court in New York found Daimler-Chrysler liable for $750,000 in the air bag death of 5-year-old Michael Crespo. A New York federal judge, however, finding the plaintiff’s argument about design defect to be speculative, overturned the verdict. Plaintiffs’ lawyers also point to an Aug. 31, 2000, ruling by the U.S. Court of Appeals for the 6th Circuit ordering a new trial in Hisrich v. Volvo, 226 F.3d 445. In February 1999 a federal court jury in Cleveland found Volvo not responsible for the 1993 death of Diana Zhang, 6. Both sides agreed that Diana, who was not wearing a seat belt when the Volvo 850 she was in had a low-speed accident, would not have been killed if the air bag had not opened. But the 6th Circuit found that the trial judge had committed reversible error by failing to instruct the jury properly about one of the plaintiff’s claims. “Because there is sufficient evidence that Volvo knew of a specific risk associated with the normal use of the product by small adults and children, and evidence that this explicit risk was not part of the warnings or instructions,” the court said, “we find that the district court abused its discretion by failing to instruct the jury on the failure to warn theory of liability.” A retrial is set for Sept. 11. Diana was the first child killed by an air bag, says plaintiffs’ lawyer, James Lowe of Cleveland’s Lowe Eklund Wakefield. “In those days, nobody knew it was dangerous. Nobody told them,” he says. But he acknowledges that in his case, like all of them, it can be difficult to overcome the public’s perception that the fault lies with the family for allowing a child to sit in the front without wearing a seat belt. “If you represent an unbelted child in the years since 1997, you have a very difficult time having the jury get past that,” he says. He refused to discuss his strategy for overcoming this obstacle at trial. Despite the lack of a clear victory, plaintiffs’ lawyers say that many confidential settlements have been reached, showing that the auto industry admits to having produced a defective product and to failing adequately to warn the public of the danger. Larry Baron, a Portland, Ore., sole practitioner, says he settled the Garrick Scott wrongful death case against Ford in 1999, even though the 7-year old was unbelted. He says a key factor in Ford’s decision to settle could have been that the common practice at the time of the 1997 accident in the town of Chiloquin, Ore., was not to wear seat belts. Another factor might have been that the bag opened in a crash that occurred at less than five mph, which should not have happened with a properly working air bag, he says. LOW-SPEED DEPLOYMENT Low-speed deployment was probably a key in his settling two wrongful death suits, says Robert Palmer, a Springfield, Mo., products liability lawyer. In both cases — involving the deaths of Courtney Byassee, 9, and McKinzie Graham, 5 — the children were in the front seat, not wearing seat belts. But he says it was clear that the bags should not have opened because in neither crash was the victim’s car going faster than five mph. Auto industry lawyers say the air bags were not defective and that many factors are considered before settling, including the cost of litigation. “The fact that it was settled does not mean anything about whether or not there is a defect in the car,” says Hyundai’s Vanderford. Plaintiff’s lawyers also point to the case of Samantha Roblez as giving them hope in the courtroom. On April 27, 2000, a jury in Dallas County Court found Ford partially liable for the injury to Samantha, who was 11 months old when she was rendered a respirator-dependent quadriplegic during an accident in 1998. She was in a forward-facing child seat in the front passenger seat, which Ford claimed was improperly fastened to the seat belt, when the accident occurred and the air bag opened. The jury awarded $20 million in damages, finding the mother, who was driving, 67 percent at fault and Ford 33 percent at fault. The verdict received a lot of attention even though the parties settled just before it came down, agreeing to cap damages. Ramos v. Ford, No. 99-2300. The plaintiff’s lawyer, Todd Tracy of Dallas’ Tracy & Carboy, says he won his case — where others have lost theirs — because he kept things simple, calling only one expert during the week-long trial to testify about design defect. SEEING THE VICTIM But other lawyers say there is another huge difference between his case and the wrongful death cases: Jurors could see Samantha, who was wheeled into court for 10 minutes so that her mother could testify about her current life. This came after the jurors had told the judge they wanted to see her in case they needed to assess damages. “If a child is not seat-belted and the child is not dead, the jury knows who will get the money,” says Stephen VanGaasbeck, a San Antonio plaintiffs’ lawyer who has handled dozens of air bag cases. If the child is deceased, he says, “The jury won’t reward the parents for not seat-belting the child.” Ford’s in-house lawyer Jonas Sanders, who oversees air bag litigation, says, “ Ramos involved a terribly tragic injury to a baby girl. Despite having several days of testimony that air bags are safe, reliable and effective, the sympathetic nature of the injury was difficult for the jury to overcome.” Meanwhile, the auto industry is four-for-four in the past 14 months in trials in which a child was killed by an air bag while seated in the front seat and improperly restrained. Hyundai’s Vanderford says this indicates that jurors are properly analyzing the risks and benefits of air bags, explaining that in order for an air bag to protect an individual in an accident that occurs in a tenth of second, the bag must inflate in a fraction of that time — something like a twentieth of a second. “Jurors understand kids ought to be in the back seat and that the air bag has risks and benefits and that the benefits outweigh the risks,” he says. Sanders says it’s encouraging that juries are closer to Ford’s assessment than plaintiffs’ lawyers are, but it won’t effect Ford’s negotiating strategy. “What it might effect is whether plaintiffs are willing to accept our assessment,” he says. While plaintiffs’ lawyers are divided over whether they can overcome the no-seat-belt factor, several lawyers say they believe some plaintiffs’ lawyers are steering clear of such cases. “I think that most attorneys reason they won’t take a case where the child was killed and he was not wearing a seat belt,” VanGaasbeck acknowledges. “I know for a fact attorneys are shying away from these cases.”

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