In Retrial, Plaintiffs Win Again Against Ford

Jury finds Ford negligent for designing defective car seat

A products liability case against Ford went to trial again and returned a nearly identical jury verdict as its first trial in 2013.

The case, Forrest Walker v. Ford Motor Company, questioned whether Ford was liable for a Boulder man’s brain injury by designing a defective car seat that was used in his 1998 Ford Explorer. The jury returned a verdict in Walker’s favor in early March after the Supreme Court ordered the case back to the trial court. 

Walker’s injury occurred during a rear-end collision where his car accelerated forward and his car seat collapsed backward. He settled with the other driver involved in the crash but sued Ford, claiming that the company used a defective design in his Explorer. 

The jury in the 2013 trial awarded Walker nearly $3 million plus interest, but on appeal, the Colorado Supreme Court found that the trial court incorrectly instructed the jury to apply two separate tests to determine whether Ford was negligent. 

The jury was instructed on both a “risk-benefit” test as well as a “consumer expectation” test, which is a subset of the risk-benefit test. 

The court found that the jury was led to believe it could make its decision solely on the consumer expectation test while the risk-benefit test is appropriate when determining whether a product is unreasonably dangerous due to a design defect when the dangerousness is defined primarily by “technical, scientific information.”

On remand, Chalat Law partner Evan Banker said the plaintiff’s attorneys were careful to follow the letter of the Supreme Court’s decision and, though they anticipate another appeal, they are confident the jury verdict will be upheld. Purvis Gray Thomson partner Mike Thomson was the lead attorney in the second trial. Along with Purvis Gray Thomson partner John Purvis, he handled the first trial in 2013. Banker credited Purvis with seeing the case as a products liability case against Ford rather than simply an insurance case.

After receiving the Supreme Court’s decision, Thomson said he sent a memo to the attorneys involved in the case the next day informing them they should approach the case as if they hadn’t won at trial. He wanted them to start from scratch rather than to be overconfident and put on the same case.

Starting over involved using new brain imaging technology that wasn’t widely available in 2013. The trial team had a “brain day” during the  trial that focused on Walker’s mental injuries and that used brain imaging to argue that he had lost more brain volume after the crash than was typical for someone his age. 

They also used neuropsychologist Dr. Erin Bigler as an expert who “held a clinic” for the jurors about the effects of Walker’s brain injury. Banker said they were concerned about the difficulty of demonstrating brain injuries — jurors told them after the trial that they might have overdone brain day, but they said they wouldn’t have done it differently.

The second trial also gave the attorneys opportunities to tighten up some aspects that were repeated from the first trial. 

They used the same liability expert as in the first trial, but in 2013, he was unable to make a flight to Denver and they had to do his testimony over video. 

This time, he was in person to discuss the development of car seat safety, providing the history of the engineering from the space race in the 1960s through today. That history played a bigger part of the case in general this time around, Banker said.

“This is stuff that’s out there for all the world to know and understand, and [Ford was] just not adapting to what the current technology was,” Banker said.

The trial attorneys also credited witness testimony from an expert Ford brought to trial. Dr. David Viano, a former scientist for General Motors, discussed car seat design, but Thomson said he used a text book Viano wrote to cross-examine him. Viano had explained what was available at the time but that hadn’t been implemented in Ford’s seats.

“He was doing things before then that showed that Ford was behind the times in 1998,” Thomson said. “And we took advantage of that.”

Wheeler Trigg O’Donnell, which represented Ford in addition to Ford’s national counsel, declined to comment, but according to the Colorado Supreme Court opinion from November, they had used their experts to explain the concept behind yielding seats, saying they “absorb energy that would otherwise impact the driver in a crash, and testified to the benefits of such seats in collisions like Walker’s.” Those parts of the case played out similarly in both trials according to the plaintiff’s lawyers. 

Thomson said the outcome of the appeals didn’t change things. “We had a consumer expectations test and a risk-benefit test that we used in the first trial. That didn’t really change how we did it, because we were aware of the risk-benefit test the first time,” Thomson said. “We really didn’t think it was going to make a difference. And I think we showed that on the second trial.”

Thomson and Banker also said they were surprised at how effective their lay witnesses seemed to be in demonstrating the effects of Walker’s injuries and that his desire, yet inability, to work were key factors in the jury’s decision. 

The jury returned a verdict that was within $30,000 of the original trial outcome, though apportioned differently. 

The jury awarded Walker roughly $2.4 million for noneconomic damages, $3.7 million for economic damages and $1.2 million for physical impairment and disfigurement. The jury found Ford to be at fault for 40 percent of the damages and Ford designer Li Liang at fault for 60 percent. In the initial trial, Liang was not identified as at fault. 

“I think it speaks to the rightness of that number,” Banker said. “I don’t understand how you can try a case twice and really end up the exact same way except that the jury system works. And that is the right number for this case.” 

— Tony Flesor

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