Appeals Court Upholds Lopsided Award Against Ford Motor Co.

In July, an appeals court upheld a product liability verdict against Ford Motor Co. for $8 million in compensatory damages and $42,050 in punitive damages. The court ignored the plaintiff's contention that the award was lopsided because Ford's lawyer was allowed to tell jurors about the carmaker's financial straits and layoffs.

The appeals panel in Zakrocki v. Ford Motor Co., A-5769-06/5799-06, did not discuss whether the defense attorney was wrong to mention the potential impact of punitives on Ford employees, but it upheld the trial judge's decision to limit evidence about Ford's finances.

The Case

A Monmouth County, NJ, jury found that a defective throttle on a 1997 Ford Explorer caused the rollover accident that left Rebekah Zakrocki with a useless right arm. Zakrocki, then 22, claimed her throttle jammed while she was driving north on the Garden State Parkway on Nov. 10, 2000, and when she pressed down hard on the gas pedal, the car lurched forward, causing her to lose control and hit other cars before rolling over.

The crash nearly severed Zakrocki's right hand and tore out the nerves connecting her spinal cord to her arm. She had 21 operations, including multiple muscle, vein, nerve and skin grafts.

The jury blamed the accident on a defective throttle, rather than a tendency to roll over, and found $10,626,480 in damages, including $8 million for pain and suffering, but deemed Zakrocki 28% at fault because she was not wearing a seat belt. Half the liability was assessed against Ford and the other 22% against Freehold Ford, the dealer that sold Zakrocki the Explorer. The main issues on appeal concerned punitive damages.

Ford argued they should not have been awarded, while Zakrocki contended that the trial judge should have granted a new trial because the amount was insufficient to serve their purpose of deterrence. Each side alleged misconduct by the other side's lawyer during the 2007 trial.

Though the panel found that counsel for both sides said things they should not have, it upheld the verdict because the judge gave curative instructions, and there was no prejudicial impact.

'Large Payments in Lawsuits Hurt Companies'

Ford trial counsel Thomas Hinchey told the jury during his opening statement that “large payments in lawsuits hurt companies” by decreasing their ability “to create new jobs, give good benefits to factory workers, to pay pensions, to pay dividends to shareholders.” He also said the large compensatory damages award was punishment enough because Ford's actions were not malicious, and punitive damages would punish Ford employees who had nothing to do with the throttle. Hinchey also indicated punitive damages would enrich not just Zakrocki but her lawyers.

The appellate court's per curiam unpublished opinion upheld the trial court's decision to limit evidence about Ford's finances to 2000, the year of the accident, and 2007, the year of the trial, saying references to the intervening years would be needlessly cumulative.

The panel said Hinchey's remark about part of the award enriching Zakrocki's lawyers was “irrelevant” and “unremarkable because the existence of contingent fee arrangements in tort cases is a matter of common knowledge.” Disparaging opposing counsel or appealing to antipathy against lawyers is “unlikely to cause reversible prejudice if it is brief and isolated,” the judges wrote.

No Reason to Reverse

They also found no reason to reverse based on the compensatory-punitive mismatch, stating there is no minimum amount for punitive damages or fixed proportional relationship. The court also considered the impact of statements by Zakrocki's counsel, Barry Eichen, especially his questioning of a defense witness in areas the judge had told him not to go.

The witness, Robert Orozco, who was driving near Zakrocki right before she crashed, described her during his deposition as driving erratically and speeding. With Orozco supposedly unavailable at the time of trial, Ford was reading the deposition transcripts to the jury when Eichen informed the court he had just reached Orozco who told him that defense counsel said they did not need him to come to court and would use his pretrial testimony instead. Eichen complained that he agreed to the readings only because Ford lawyer James Dobis had advised him Orozco was unavailable. Dobis claimed he had been unable to reach Orozco, but then “lo and behold”he had just called the office. The judge then required Orozco to testify in person, and forbade both sides from discussing what had happened. Nevertheless, Eichen tried to bring it up on cross-examination.

The panel found no error in the trial judge's denial of Ford's request for a mistrial because her jury instructions “minimized the impact of the revelation by implying that [the witness's] conversations with counsel were unremarkable and to neither side's advantage.” The panel also rejected Ford's challenge to other comments made by Eichen during his closing, finding that they “did not exceed the bounds of permissible argument in summation.”

Among other things, Eichen raised doubts about the credibility of Ford's statistics on reported throttle incidents; questioned Ford's witness's credibility based on the different account he gave police at the scene; mentioned the $77 million paid to a defense expert, a former Ford employee, for testifying in more than 100 cases for the company; contrasted his own expert as “a regular guy”; termed “ridiculous” a defense expert's suggestion that Zakrocki's severe shoulder injury might have resulted from traction at the hospital rather than the accident; and implored jurors to base their award on “human decency.”

The failure of Ford's lawyers to object at the time also indicated the remarks were not overly prejudicial, said the court. Ford's lawyer on appeal says he is reviewing the decision. Trial counsel did not return calls.

Mr. Eichen says he will consider seeking an appeal on such issues as Hinchey's mention of plant closings and layoffs and the trial court's exclusion of evidence that Ford recalled 1997 Explorers because of stuck throttles six weeks after the crash.

Mary Pat Gallagher is a reporter for the New Jersey Law Journal, an Incisive Media sister publication of this newsletter.

In July, an appeals court upheld a product liability verdict against Ford Motor Co. for $8 million in compensatory damages and $42,050 in punitive damages. The court ignored the plaintiff's contention that the award was lopsided because Ford's lawyer was allowed to tell jurors about the carmaker's financial straits and layoffs.

The appeals panel in Zakrocki v. Ford Motor Co., A-5769-06/5799-06, did not discuss whether the defense attorney was wrong to mention the potential impact of punitives on Ford employees, but it upheld the trial judge's decision to limit evidence about Ford's finances.

The Case

A Monmouth County, NJ, jury found that a defective throttle on a 1997 Ford Explorer caused the rollover accident that left Rebekah Zakrocki with a useless right arm. Zakrocki, then 22, claimed her throttle jammed while she was driving north on the Garden State Parkway on Nov. 10, 2000, and when she pressed down hard on the gas pedal, the car lurched forward, causing her to lose control and hit other cars before rolling over.

The crash nearly severed Zakrocki's right hand and tore out the nerves connecting her spinal cord to her arm. She had 21 operations, including multiple muscle, vein, nerve and skin grafts.

The jury blamed the accident on a defective throttle, rather than a tendency to roll over, and found $10,626,480 in damages, including $8 million for pain and suffering, but deemed Zakrocki 28% at fault because she was not wearing a seat belt. Half the liability was assessed against Ford and the other 22% against Freehold Ford, the dealer that sold Zakrocki the Explorer. The main issues on appeal concerned punitive damages.

Ford argued they should not have been awarded, while Zakrocki contended that the trial judge should have granted a new trial because the amount was insufficient to serve their purpose of deterrence. Each side alleged misconduct by the other side's lawyer during the 2007 trial.

Though the panel found that counsel for both sides said things they should not have, it upheld the verdict because the judge gave curative instructions, and there was no prejudicial impact.

'Large Payments in Lawsuits Hurt Companies'

Ford trial counsel Thomas Hinchey told the jury during his opening statement that “large payments in lawsuits hurt companies” by decreasing their ability “to create new jobs, give good benefits to factory workers, to pay pensions, to pay dividends to shareholders.” He also said the large compensatory damages award was punishment enough because Ford's actions were not malicious, and punitive damages would punish Ford employees who had nothing to do with the throttle. Hinchey also indicated punitive damages would enrich not just Zakrocki but her lawyers.

The appellate court's per curiam unpublished opinion upheld the trial court's decision to limit evidence about Ford's finances to 2000, the year of the accident, and 2007, the year of the trial, saying references to the intervening years would be needlessly cumulative.

The panel said Hinchey's remark about part of the award enriching Zakrocki's lawyers was “irrelevant” and “unremarkable because the existence of contingent fee arrangements in tort cases is a matter of common knowledge.” Disparaging opposing counsel or appealing to antipathy against lawyers is “unlikely to cause reversible prejudice if it is brief and isolated,” the judges wrote.

No Reason to Reverse

They also found no reason to reverse based on the compensatory-punitive mismatch, stating there is no minimum amount for punitive damages or fixed proportional relationship. The court also considered the impact of statements by Zakrocki's counsel, Barry Eichen, especially his questioning of a defense witness in areas the judge had told him not to go.

The witness, Robert Orozco, who was driving near Zakrocki right before she crashed, described her during his deposition as driving erratically and speeding. With Orozco supposedly unavailable at the time of trial, Ford was reading the deposition transcripts to the jury when Eichen informed the court he had just reached Orozco who told him that defense counsel said they did not need him to come to court and would use his pretrial testimony instead. Eichen complained that he agreed to the readings only because Ford lawyer James Dobis had advised him Orozco was unavailable. Dobis claimed he had been unable to reach Orozco, but then “lo and behold”he had just called the office. The judge then required Orozco to testify in person, and forbade both sides from discussing what had happened. Nevertheless, Eichen tried to bring it up on cross-examination.

The panel found no error in the trial judge's denial of Ford's request for a mistrial because her jury instructions “minimized the impact of the revelation by implying that [the witness's] conversations with counsel were unremarkable and to neither side's advantage.” The panel also rejected Ford's challenge to other comments made by Eichen during his closing, finding that they “did not exceed the bounds of permissible argument in summation.”

Among other things, Eichen raised doubts about the credibility of Ford's statistics on reported throttle incidents; questioned Ford's witness's credibility based on the different account he gave police at the scene; mentioned the $77 million paid to a defense expert, a former Ford employee, for testifying in more than 100 cases for the company; contrasted his own expert as “a regular guy”; termed “ridiculous” a defense expert's suggestion that Zakrocki's severe shoulder injury might have resulted from traction at the hospital rather than the accident; and implored jurors to base their award on “human decency.”

The failure of Ford's lawyers to object at the time also indicated the remarks were not overly prejudicial, said the court. Ford's lawyer on appeal says he is reviewing the decision. Trial counsel did not return calls.

Mr. Eichen says he will consider seeking an appeal on such issues as Hinchey's mention of plant closings and layoffs and the trial court's exclusion of evidence that Ford recalled 1997 Explorers because of stuck throttles six weeks after the crash.

Mary Pat Gallagher is a reporter for the New Jersey Law Journal, an Incisive Media sister publication of this newsletter.