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December 16, 2003 - Ford Wins Defense Verdict in Explorer Rollover Suit

December 16, 2003 - Ford Wins Defense Verdict in Explorer Rollover Suit

Lawyers on both sides of Vittorio and Rosanna DiMaso's products liability case against Ford Motor Co. fought ferociously for leverage under a 2003 U.S. Supreme Court decision urging moderation in punitive damages.

They fought needlessly, as it turned out. Jurors returned defense verdicts on all counts, after listening to a monthlong trial before Georgia's Cobb Superior Court Judge Toby B. Prodgers.

The DiMasos had accused Ford of designing and manufacturing a flawed sport utility vehicle - the 1992 Explorer - and failing to inform the public that certain conditions would cause it to flip in DiMaso v. Ford.

In addition to products liability claims, the DiMasos claimed breach of express and implied warranties, and failure to warn drivers of the dangers they faced in taking the Explorer out on the road. Ford, they claimed, knew about the SUV's defects and did nothing about them.

The DiMasos sought damages for their medical bills, the cost of past and future health care, and mental and physical pain and suffering. They also sought punitive damages for what they called Ford's "reckless and willful" behavior and "conscious indifference to the consequences of its actions."

The DiMasos' case attracted some national attention because it was the first to take place against the backdrop of the U.S. Supreme Court's decision 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, said the jurors seemed to subscribe to a common sense assessment of how a car should behave. The DiMasos' car had hit the median, he said, and rather than braking or pulling the car off the road, the driver jerked the wheel back and forth.

Also representing Ford were Charles K. Reed and Michael R. Boorman of McKenna Long & Aldridge and Rosewell Page III of McGuireWoods in Richmond, Va.

Plaintiffs' lawyer Eric J. Hertz of Hertz Link & Smith said he still thinks he had a strong case. The circumstances just weren't right for a win, 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 Wake-field & Mulvihill.

As it turned out, the State Farm decision affected only pretrial maneuvering in the DiMasos' case. In pretrial motions, Ford's lawyers sought to limit testimony about the company's finances and about sales of the Explorer outside of Georgia.

The defense tried to distinguish their claim from the one against State Farm in State Farm by pointing out that the company had written state-specific policies but was punished for its behavior in jurisdictions other than the one in which it stood trial. In the DiMasos' case, however, Ford sold the same product in all 50 states, and the vehicles - including the one the DiMasos owned - crossed state lines.

The defense received a partial victory. Prodgers excluded testimony about sales of the Explorer outside of Georgia, but he decided to allow testimony about Ford's finances should the trial reach the punitive damages stage.

Without the pressure of the State Farm decision, the DiMasos brought a fairly standard products liability case.

On Dec. 15, 1996, Vittorio DiMaso was leading a three-vehicle caravan from Illinois to the family's new home in Florida. Vittorio DiMaso led the way in his 1992 Explorer. His wife followed in another car, and her parents came last in another vehicle.

The family was traveling south on Interstate 75 when Vittorio DiMaso switched lanes from right to left. The plaintiffs claimed he did this to avoid another car, though the defense disputed that. The Explorer slid off the highway into the median, and DiMaso jerked the SUV back to the right.

Then DiMaso corrected again, yanking the steering wheel back to the left. The Explorer went into a slide, then rolled down the center of the southbound lanes. It rolled onto the median, where it came to a stop on its roof.

DiMaso's son Francesco was wearing his seat belt and was uninjured in the crash. But DiMaso was tossed out of the SUV when it flipped; he severed his spine and now suffers incurable quadriplegia, according to the complaint.

The defense contended, on the basis of a police report, that DiMaso had not been wearing his seat belt when he crashed. The plaintiffs argued that their client had been belted in, but the belt had broken in the force of the wreck.

But during trial, Hertz said, the plaintiffs thought they were doing well. At one point, according to Hertz, Ford offered a settlement, and the plaintiffs refused. He declined to specify the size of the offer, saying only that it was too small and that the plaintiffs turned it down because they thought they were going to win.

Ford spokeswoman Kathleen Vokes said the DiMaso victory marks the eighth time Ford has won a products liability case alleging defects in the Explorer. No case, she said, has successfully shown the Explorer to have a defect.

Hertz said that despite the long string of defense verdicts for Ford in these cases, he intends to keep after the car company. There was strong evidence at trial, he said, that the Explorer DiMaso drove "had some stability problems."

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