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A recent U.S. Supreme Court decision cautioning restraint in the award of punitive damages has set the ground rules for a high-stakes product liability fight over the road worthiness of the 1992 Ford Explorer. Vittorio and Rosanna DiMaso’s suit against Ford Motor Co. in Georgia’s Cobb County State Court accuses Ford of designing and manufacturing a sport utility vehicle prone to rollovers, and failing to warn buyers of the danger in DiMaso v. Ford. The suit is the latest in a string of efforts to sue Ford over alleged flaws in the Explorer’s design. The trial gets underway this week before Judge Toby B. Prodgers. However, the DiMaso suit has attracted national attention because it is the first that will take place against the backdrop of the U.S. Supreme Court’s decision in State Farm Mutual Automobile Insurance Co. v. Campbell. In that case, the justices highlighted a need for “vigorous judicial scrutiny of punitive damages awards.” “Although these awards serve the same purposes as criminal penalties, defendants subjected to punitive damages in civil cases have not been accorded the protections applicable in a criminal proceeding,” the opinion states. “This increases our concern over the imprecise manner in which punitive damages systems are administered.” In State Farm’s wake, lawyers for Ford filed a motion in limine seeking, among other requests, to enjoin the plaintiffs from introducing evidence of Ford’s net worth or financial condition and evidence of the Explorer’s sales outside of Georgia. In turn, plaintiffs lawyers James A. Lowe, of Cleveland’s Lowe Eklund Wakefield & Mulvihill, and Hertz, Link & Smith’s Mark D. Link and Eric J. Hertz are seeking to distinguish State Farm from their client’s suit against Ford. USE OF SEAT BELT DISPUTED The underlying complaint reads much like a fairly standard product-liability rollover suit. According to the complaint and pretrial order, on Dec. 15, 1996, Vittorio DiMaso was leading a three-car caravan that included his wife and her parents from Illinois to their new home in Florida. Vittorio drove the Explorer, with his son Francesco in the back. Rosanna DiMaso followed in another vehicle, and her parents were last in line. While traveling south on Interstate 75, DiMaso moved from the right lane to the left. The plaintiffs claim he did so to avoid another car; the defense disputes that. The Explorer slid off the pavement onto the shoulder of the highway, and DiMaso jerked the car back toward the right lane. At this point, Ford’s lawyers claim, DiMaso was re-entering the highway at “about a 90-degree angle.” While the plaintiffs lawyers do not try to quantify DiMaso’s angle at that point, they claim the car was already out of control when he swerved back into the right lane. DiMaso then jerked the vehicle to the left to straighten it out. The Explorer slid, then rolled in the middle of the southbound lanes. It continued rolling onto the median, where it came to rest on its roof. “The vehicle continued to roll multiple times, during the process of which event, Plaintiff Vittorio DiMaso was ejected from the vehicle, resulting in the severing of his spine and permanent quadriplegia,” according to the complaint. In the pretrial order, the defense lawyers claim that DiMaso was not wearing his seat belt. The plaintiffs claim that DiMaso was wearing it, but the safety clip ripped out of the buckle during the crash. DiMaso’s son, who was belted in, stayed in the car and was uninjured. PLAINTIFFS: FORD PUT PROFITS FIRST The plaintiffs claim that Ford was negligent in the Explorer’s design, that the SUV is defective and unreasonably dangerous, breach of express and implied warranties, and failure to warn Explorer drivers of the danger they faced in certain situations. Further, the plaintiffs claim that Ford knew about the flaws in the Explorer’s design and did nothing about them. “Ford knew that the Explorer demonstrated the same rollover tendencies that had plagued the Bronco II, but Ford also knew it could not make the necessary changes to improve the vehicle’s stability in the short time before it was scheduled to go on the market,” Hertz wrote. The DiMasos are seeking compensation for their medical bills; past and future care and treatment costs; mental and physical pain and suffering; and Rosanna DiMaso’s losses due to the incapacitation of her primary caretaker. The plaintiffs also claim that Ford’s actions were “reckless and willful” and “exhibited conscious indifference to the consequences of its acts.” “Ford was unwilling to compromise, or even delay any of its anticipated profits, in the hundreds of millions of dollars per year, in order to make a safer vehicle,” the plaintiffs claim. Ford has assembled a high-powered team of lawyers to defend the case. Lawyers include McKenna Long & Aldridge’s Charles K. Reed and Michael R. Boorman, and Rosewell Page III of McGuireWoods in Richmond, Va. Ford is denying all of the plaintiffs’ claims. Its lawyers are raising the issues of whether DiMaso contributed to his injuries by failing to wear his seat belt and whether DiMaso assumed the risk of the activities that contributed to his injuries. But the issue of punitive damages prompted a motion in limine from the defense, seeking to secure Ford’s due process safeguards as the Supreme Court set out in the State Farm case. The intention of Ford’s lawyers, according to the motion, is to ensure that any punitive damages award doesn’t amount to “an arbitrary deprivation of property,” as quoted in the State Farm decision. First, Ford’s lawyers argue that the judge should exclude evidence of or references to Ford’s net worth. Citing State Farm again, the defense argues that Ford’s financial information “bears no relation to the [punitive] award’s reasonableness or proportionality.” Since Ford isn’t going to introduce any evidence of inability to pay, introducing financial information would be prejudicial, the defense claims. “Such evidence in this case is irrelevant,” wrote Boorman. In their response, DiMaso’s lawyers argue that the plaintiffs should be able to introduce financial evidence in the punitive stage of a bifurcated trial. The jury has to know how big a financial hit would be enough to punish the defendant for the behavior that warrants punitive damages, Hertz wrote. Second, Ford’s lawyers are seeking to exclude evidence of the Explorer’s sales outside of Georgia. Only a small portion of Ford’s income comes from selling the Explorer — and an even smaller portion comes from selling the Explorer in Georgia. But introducing financial information from the company’s global enterprises would mislead and prejudice the jury, Boorman wrote. The Supreme Court has established that one state cannot punish a defendant for out-of-state conduct that had no effect on the first state’s citizens, the defense contends. “Admission of any evidence touching upon factors not strictly limited to the State of Georgia will taint any award and ultimately require reversal,” Boorman wrote. In their reply, the plaintiffs lawyers distinguish their complaint from the actions treated in State Farm. The insurance company, Hertz wrote, had issued state-specific policies and yet was punished according to its conduct in jurisdictions other than the one in which it was tried. In this case, however, Ford sold the same product in every state (and abroad), and the vehicles — including the DiMasos’ — frequently crossed state lines. “Since Ford sold the same product in all jurisdictions — rather than producing a Georgia-specific Explorer edition — Ford must answer for its sale of the Explorer to all jurisdictions,” Hertz wrote. The defense also sought to bar the plaintiffs from mentioning the possibility of punitive damages in the opening statement, and to bar the plaintiffs from asking the jury to “send a message” or represent “the conscience of the community” or some similar argument. “Such rhetoric is thoroughly inappropriate and unfairly prejudicial,” Boorman wrote. “The jury’s task is to reach a verdict in this case, not to act as an uncontrolled arbiter of what it perceives to be social justice.” The plaintiffs countered that the court already has safeguards in place regarding punitive damages, and they should be able to mention the possibility of such damages in their opening. As to not being able to appeal to jurors as the “conscience of the community” or ask them to send a message to Ford, Hertz called the request “patently specious.”

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