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A Florida mother and two children who were involved in a blowout-rollover accident caused by the failure of their Bridgestone/Firestone tires may sue the company for punitive damages, a state appeals court has concluded. In a Nov. 24 opinion, the state’s 4th District Court of Appeal ruled that evidence offered by the Broward County plaintiffs showed that Firestone knew about defects in its tires but delayed warning the public in order to protect its own financial interests. Florida law limits punitive damage awards for each claimant to three times compensatory damages or $500,000, whichever is greater. If the injury results from wrongful conduct motivated by economic gain, the award can be four times compensatory damages or $2 million, whichever is greater. There is no cap where a defendant is found to have acted with intent to harm.Most of the hundreds of cases brought against the company in state and federal courts have been settled for undisclosed amounts, with no admission of liability by Firestone. However, an unknown number of cases around the country are being litigated in state courts. Plaintiffs in some cases have sued the company for punitive damages, but none has ever been tried to a verdict. Firestone attorney Lee Teichner had not seen the order and declined to discuss the 4th DCA’s ruling in detail. “I’m fairly surprised,” he said. “Courts throughout the state in similar cases have concluded that there is no reasonable grounds to allow claims for punitive damages.” “The appellate court got it wrong,” said Firestone corporate representative Chris Karbowiak. “We’re evaluating our options. They are likely to include a motion for rehearing or an appeal [to the Florida Supreme Court].” Miami lawyer Steven Hunter, co-counsel for the plaintiffs, said that an appeal to the Supreme Court is unlikely. But he expects the company to file a motion for rehearing “in light of the gravity of the ruling.” Beyond that, he said a trial on punitive damages only will be the next step in the case. Despite the minimal physical injuries suffered by his clients in the blowout/rollover, Hunter said he plans to seek damages “in the millions.” “In punitive damages claims, the potential for harm is one of the factors,” he said. “It’s not just a matter of actual harm. Firestone delayed recall of the tires, covered up the defects and endangered or killed a host of people whose lives might have been saved.” In the 1990s there were numerous rollover incidents involving three types of Firestone tires — the Wilderness AT, ATX and ATX2 — on Ford Explorers. The rollover accidents, which resulted in death and severe injuries in some cases, sparked a public outrage that resulted in Firestone recalling the tires in August 2000. It was the second-largest tire recall in U.S. history. Firestone has steadfastly argued that its tires are not defective and that the recall in 2000 was for public safety purposes because there had been so many accidents. Firestone has attributed the rollovers to the design of the Ford Explorer sport utility vehicle rather than its tires. In early 2003, there were about 500 blowout/rollover cases against Firestone pending in federal court, including about 150 that were filed in the Southern District of Florida. According to Miami attorney Victor Diaz, a partner at Podhurst Orseck who co-chaired the multidistrict litigation of federal cases against Firestone in U.S. District Court in Indianapolis, the “vast majority” of those cases have been settled and the remainder are in mediation. However, a number of cases around the country are being litigated in state courts. Mike Eidson, a partner at Colson Hicks Eidson in Miami and the lead national counsel of the multidistrict litigation, estimates that 25 to 50 Firestone claimants still have cases active in state courts. He noted that punitive damage awards in states other than Florida could rise to hundreds of times compensatory damages. The plaintiff in the appellate case, Carolyn Holmes, a flight attendant who lives in Pembroke Pines in Broward County, was driving in October 1999 on I-75 in Miami-Dade County when the treads on the left rear tire of her 1995 Explorer separated. Her car rolled over twice before coming to rest upside down. Holmes was in the car with her two small children, who were strapped into car seats and not injured; Holmes suffered a scar on her left hand but had no other injuries. In 2000, she sued Firestone on strict liability and negligence grounds for manufacturing a defective tire. A Broward jury in February 2003 found the company 20 percent liable, assigning 80 percent liability to a Pembroke Pines garage that had rotated the tires just 18 days before the accident and failed to spot the defective tire and remove it. The jury in the case last year became the first in the U.S. to rule that the company’s tires were defective, but it awarded the family just $55,400 — largely economic damages. Broward County Circuit Judge Miette Bernstein the previous year had denied the plaintiffs’ motion to add a claim for punitive damages to their complaint. Bernstein found that evidence introduced by the plaintiffs failed to meet Florida’s legal standard for punitive damage claims. The law holds that those claims are not allowed unless the evidence “would provide a reasonable basis for recovery of such damages.” The evidence consisted entirely of information from the Web site of Washington, D.C.-based consumer advocate Public Citizen and consisted largely of extracts from purported memos and letters from Firestone and Ford Motor Co., as well as government documents, that showed that Firestone knew of its tires’ defects long before they were recalled in August 2000. “We felt that the evidence was strong enough that it was something the jury should have been allowed to consider,” said plaintiff attorney Hunter. Public Citizen’s president, Joan Claybrook, put it more strongly. “Our evidence left no doubt Firestone was in reckless disregard of public safety,” she said Tuesday. “Punitive damages were definitely warranted.” Firestone’s Karbowiak replied that “only 0.02 percent of the tires had any claim made against them.” But she admitted that the results in those incidents were “catastrophic.” Holmes’ lawyers in the trial and on appeal were Hunter, Christopher Lynch and Stewart Williams of Hunter Williams & Lynch, in Miami. Firestone was represented at trial by Teichner and Marie Lefere, of Holland & Knight in Miami and Fort Lauderdale. Lucinda Hofmann, also of Holland & Knight, represented the company on appeal. Firestone argued against the appeal on two grounds. One was that the plaintiffs’ evidence was hearsay because it was taken directly from the Internet rather than original documents. The company also argued that the court’s standard of review should be whether Bernstein’s ruling was an abuse of discretion. The appeals court found that the hearsay argument failed because it was not the grounds on which Bernstein ruled and, in any case, could have been cured by the plaintiffs by their obtaining the original documents. The court held that the abuse of discretion argument failed because Bernstein was simply wrong on a pure point of law, not a matter of discretion. In the appeals court’s unanimous decision — authored by Judge Larry Klein, Chief Judge Gary Farmer and Associate Judge William Berger concurring — the court held that “the only issue” before it was whether the facts proffered by the plaintiffs would support punitive damages. The court said its analysis was “similar to determining if a complaint states a cause of action.” It reversed the lower court because “the allegations, if true, would support punitive damages.” Appellate attorney Jack Aiello, a shareholder at Gunster Yoakley & Stewart in West Palm Beach, said the ruling is significant in that the appeals court undertook a de novo review of the circuit judge’s ruling. “The plaintiff got a second bite at the apple,” Aiello said. “It means that in the 4th DCA, appellate judges don’t defer to trial judges about whether facts support punitive damages.”

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