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Lawyers on both sides of Vittorio and Rosanna DiMaso’s product liabilitycase against Ford Motor Co. fought ferociously for leverage under a 2003U.S. Supreme Court decision urging moderation in punitive damages. They fought needlessly, as it turned out. Jurors returned defenseverdicts on all counts, after listening to a month-long trial beforeCobb Superior Court Judge Toby B. Prodgers. The DiMasos had accused Ford of designing and manufacturing a flawedsport utility vehicle — the 1992 Explorer — and failing to inform the publicthat certain conditions would cause it to flip in DiMaso v. Ford. In addition to product liability claims, the DiMasos claimed breach ofexpress and implied warranties, and failure to warn drivers of thedangers they faced in taking the Explorer out on the road. Ford, theyclaimed, knew about the SUV’s defects and did nothing about them. The DiMasos sought damages for their medical bills, the cost of past andfuture health care, and mental and physical pain and suffering. Theyalso sought punitive damages for what they called Ford’s “reckless andwillful” behavior and “conscious indifference to the consequences of itsactions.” The DiMasos’ case attracted some national attention because it was thefirst to take place against the backdrop of the U.S. Supreme Court’sdecision in State Farm Mutual Automobile Insurance Co. v. Campbell. In that decision, the justices called for”vigorous judicial scrutiny of punitive damages awards.” Ford’s lawyer, Donald H. Dawson Jr., of Dawson & Clark in Detroit, saidthe jurors seemed to subscribe to a common-sense assessment of how a carshould behave. DiMaso’s car had hit the median, he said, and rather thanbraking or pulling the car off the road, the driver jerked the wheelback and forth. “I don’t know what you expect from a vehicle at that point,” Dawsonsaid. The jurors, he noted, deliberated for about five hours. “I don’t think there was a lot of doubt there,” he said. “They’re justtough, tough jurors.” Also representing Ford were Charles K. Reed and Michael R. Boorman ofMcKenna Long & Aldridge, and Rosewell Page III of McGuireWoods inRichmond, Va. “These cases tend to be very complicated, very complex and very expertheavy,” Reed said. “We were pleased that the jurors seemed to pay closeattention to it all.” ‘JUST ONE OF THOSE DAYS’ Plaintiffs’ lawyer Eric J. Hertz, of Hertz, Link & Smith, said he stillthinks he had a strong case. The circumstances just weren’t right for awin, he said. Hertz helped try the case with his partner, Mark D. Link,and with lead counsel James A. Lowe of Cleveland’s Lowe Eklund Wakefield& Mulvihill. “Lowe tried a perfect case,” he said. “It was just one of those dayswhen the facts didn’t line up as we needed them to.” Hertz said he does not anticipate an appeal. “Judge Prodgers was extremely well-informed on the law of productliability,” he said. “He took a lot of care in ensuring the trial wasconducted in a proper way.” As it turned out, the Campbell decision affected only pretrialmaneuvering in the DiMasos’ case. In pretrial motions, Ford’s lawyerssought to limit testimony about the company’s finances and about salesof the Explorer outside of Georgia. The defense tried to distinguish their claim from the one against StateFarm in Campbell by pointing out that State Farm had writtenstate-specific policies but was punished for its behavior injurisdictions other than the one in which it stood trial. In theDiMasos’ case, however, Ford sold the same product in all 50 states, andthe vehicles — including the one the DiMasos owned — crossed state lines. The defense received a partial victory. Prodgers excluded testimonyabout sales of the Explorer outside of Georgia, but he decided to allowtestimony about Ford’s finances should the trial reach the punitivedamages stage. Without the pressure of the Campbell decision, the DiMasos brought afairly standard product liability case. On Dec. 15, 1996, Vittorio DiMaso was leading a three-vehicle caravanfrom Illinois to the family’s new home in Florida. Vittorio DiMaso ledthe way in his 1992 Explorer. His wife Rosanna followed in another car,and Rosanna’s parents came last in another vehicle. The family was traveling south on Interstate 75 when Vittorio DiMasoswitched lanes from right to left. The plaintiffs claimed he did this toavoid another car, though the defense disputed that. The Explorer slidoff the highway into the median, and DiMaso jerked the SUV back to theright. Then DiMaso corrected again, yanking the steering wheel back to theleft. The Explorer went into a slide, then rolled down the center of thesouthbound lanes. It rolled onto the median, where it came to a stop onits roof. SEAT BELT AT ISSUE DiMaso’s son Francesco was wearing his seat belt and was uninjured inthe crash. But DiMaso was tossed out of the SUV when it flipped; hesevered his spine and now suffers incurable quadriplegia, according tothe complaint. The defense contended, on the basis of a police report, that DiMaso hadnot been wearing his seat belt when he crashed. The plaintiffs arguedthat their client had been belted in, but the belt had broken in theforce of the wreck. “I just think the jury didn’t believe that Mr. DiMaso was seatbelted tobegin with,” Hertz said. But during trial, Hertz said, the plaintiffs thought they were doingwell. At one point, according to Hertz, Ford offered a settlement, andthe plaintiffs refused. He declined to specify the size of the offer,saying only that it was too small and that the plaintiffs turned it downbecause they thought they were going to win. But Dawson said Ford has successfully defended product liability casesabout the Explorer. “We usually have pretty good luck in these cases,” he said. “We dopretty well for the most part.” Dawson has won similar cases in Georgia before. In Hill v. Ford MotorCo., Dawson won a defense verdict in a case that alleged Ford’s BroncoII had a tendency to flip. The jury found no defects and awarded theplaintiff no damages in Hill v. Ford Motor Co. Ford spokeswoman Kathleen Vokes said the DiMaso victory marks the eighthtime Ford has won a product liability case alleging defects in theExplorer. No case, she said, has successfully shown the Explorer to havea defect. Hertz said that despite the long string of defense verdicts for Ford inthese cases, he intends to keep after the car company. There was strongevidence at trial, he said, that the Explorer DiMaso drove “had somestability problems.” “This was just one day with one jury,” he said. “We want to keep tryingthese cases.”

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