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In a rare victory for a plaintiff in air bag litigation, a San Antonio jury has awarded a 10-year-old girl $4 million for her injuries. The case bucks the trend of jury verdicts that have favored car manufacturers during the last two years in cases involving children in low-impact crashes. Stephen Van Gaasbeck, the San Antonio, Texas, attorney who won the case, says the secret to his victory is that the case involved a child who lived through the accident. “She testified that she was properly seat-belted. She was credible and the jury believed her,” says Van Gaasbeck. “When a child is dead it’s the parents saying the child was wearing one.” Van Gaasbeck brought the suit on behalf of Ashlee Hillhouse, who was nearly 10 when her family’s 1994 Plymouth Voyager hit another car in August 1998. The air bag hit Ashlee’s head, pushing it so that her nerves were pulled out of her spinal cord. Her left arm and hand are 90 percent useless. On Feb. 6, the jury awarded Ashlee $3.5 million in actual damages, $46,000 in past medical expenses and $509,000 in prejudgment interest. Hillhouse v. DaimlerChrysler Corp., No. 2000-CI-11445 (224th Dist. Ct., Texas). DaimlerChrysler, which identified the car as a 1994 Dodge Caravan — a nearly identical model with a different name than the Plymouth Voyager — argued that the parents were at fault. “The child would have been uninjured in the accident if she had been properly belted or seated in the backseat heeding the warning on the visor,” says Ann Smith, a spokeswoman for the car company. James Feeney of Feeney Kellett Wienner & Bush in Bloomfield Hills, Mich., was the lead defense lawyer. DaimlerChrysler’s Smith says that the company was mystified by the outcome and plans to appeal. “During the jury questioning, all acknowledged that they were aware that children under 12 should sit in the back seat.” Van Gaasbeck says that the jury not only believed Ashlee and her parents that she was wearing a seat belt, but understood why her parents had permitted her to sit in the front seat. There were already two children in the back seat. The only other seating option for Ashlee was in the far rear of the vehicle in a seat that had no headrest and no adjustable seat belt for children. “It’s about six inches from the bumper of an 18-wheeler,” says Van Gaasbeck. Van Gaasbeck asserts that that information, combined with advertisements Chrysler had run that portrayed the van as having been designed with children in mind and as the ideal “soccer mom” vehicle, led the plaintiffs to believe it was safe. One ad, says Van Gaasbeck, “had a complete baseball team in the van including a child in the front seat.” Clarence Ditlow, executive director of the Center for Auto Safety in Washington, D.C., says that the car’s air bag design is one that is particularly aggressive and that his organization filed a petition for a recall three or four years ago. It was ultimately unsuccessful. Ditlow thinks that this verdict is probably an indication of a future trend of more plaintiffs’ verdicts in air bag cases. “Trial lawyers learn from past mistakes,” he says. “They learn what the weaknesses are in the first case so the next is better. Air bag cases should be winners. Some manufacturers did a really good job of designing safer air bags. Some did a really bad job.” Lynn Shumway, a Scottsdale, Ariz., lawyer who handles air bag litigation, also views Van Gaasbeck’s victory as important to his own future cases. “You had a belted occupant who suffered a serious injury,” he says. “There were design alternatives that would have eliminated those injuries. That’s exactly what I’m doing in a number of other cases.” He notes that there have been a number of victories on behalf of adults in the last couple of years but says the Hillhouse verdict is even more important because many of the others involve incidents of blinding by the drivers. In the Hillhouse case, he notes, there “is more of a generic design and that kind of injury can happen in just about any car that uses an overly aggressive inflation.” Until this case, the defense bar had permitted very few of the low-impact child air bag injury cases to go to trial. Those that did go to trial mostly resulted in defense wins. Last year Hyundai, Ford and Volkswagen prevailed in air bag cases involving the deaths of children. But defense lawyers don’t see the Hillhouse verdict as a clear sign of a change. “One case does not make a trend,” says Smith. “We would describe the Hillhouse case as the exception, which we have confidence will be corrected on appeal.” Likewise, Ford’s in-house lawyer in charge of air bag litigation, Jonas Saunders, notes that the jury process is unpredictable and that it’s not surprising that car manufacturers lose a few cases. “Even if the jury does know that mothers and fathers should have children in the back seat, it’s still hard to send a hurt little girl home without any money,” he notes. Saunders says that the plaintiffs’ victory is unlikely to affect any change in his litigation strategy. Van Gaasbeck says he’s also skeptical about his case’s changing the trend. He notes that his victory is not unusual for litigation with children who live through the accident. He’s handled one other air bag case that went to trial. It resulted in $1.8 million jury verdict in March 1999. Hart v. Mazda, No. 97-CI-15195. Van Gaasbeck also points to a Dallas jury verdict in 2000 involving a girl who was awarded $20 million, finding Ford 33 percent at fault. Ramos v. Ford, No. 99-2300. A jury does not want to award parents for the death of a child who the car company says wasn’t wearing a seat belt, Van Gaasbeck says. “It looks like greedy parents, not grieving parents.” He thinks that will continue to define which cases prevail and which don’t. Van Gaasbeck says that air bag litigation is dying down because the technology changed after 1998. But that means a new kind of suit. “Other types of injuries are now occurring with air bags such as failure to deploy.”

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