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Roger S. Braugh, Jr. responds

We frequently hear from plaintiffs' attorneys that we don't have the courage to print their side of the story; somehow, we always do. The latest challenge to our "moral fortitude" comes from Roger S. Braugh, who objects to our post on the Rose Marie Munoz case, where a woman who didn't wear a seatbelt received a $29 million verdict in a failure-to-warn case where a recall notice had been issued. We've posted the full comment and my full response at the original post; a lengthy partial point-by-point rebuttal is after the jump here. In addition, Brough has offered to answer questions about the case; I've posted a preliminary list.

Brough's complaint about those "spending millions of dollars" on tort reform is ironic; he is allegedly a member of what a community paper calls Mikal Watts's "Millionaire Lawyers Club" that allegedly handpicks judges and influences elections on the 148th District Court in Corpus Christi. But given that a runaway plaintiffs' bar is costing the American economy hundreds of billions of dollars a year, it's unsurprising that some of the victims of that problem seek to fix it. But the plaintiffs' bar outspends reformers by a 3-1 ratio.

Point by point to the underlying criticisms, with Brough's comments in italics, and mine in roman text:

(1) Ms. Munoz was a rear seat passenger, not required by law to wear a seatbelt, and the case predated 2003 changes in Texas law, which now makes seatbelt use admissible in such cases.

Whether Munoz is required by law to wear a seatbelt is irrelevant to her negligence in failing to wear one. It is unjust to judge the design of the safety of a vehicle and its components when the safety gear of the vehicle is left unused.

(2) Ford/Mazda did not allege that Ms. Munoz was negligent or did anything wrong that caused her injury. In a court of law, you have to file pleadings asserting who was at fault, and failing that, you can't just make it up as you go along. The belt use issue was not even pled by Ford.

The law does not allow Ford to allege Munoz was negligent for her failure to wear a seatbelt. To blame Ford for being subject to an unjust law is adding insult to injury.

(3) Too late in the case, Ford hired an "expert" who it had paid literally tens of millions of dollars to over the past two decades to say that if Ms. Munoz would have had her seatbelt on, her injury would not have occurred. This same expert has given no less that 10 contradictory opinions, under oath, in the past two years alone where belted occupants receive fatal or paralyzing injuries in a Ford vehicle rollover. In those cases, his testimony has been that stuff like this just happens, regardless of belt use, in dynamic rollovers.

That other injuries have occurred while wearing a seatbelt is hardly evidence that an expert opinion regarding the failure to wear a seatbelt here is "contradictory" or "wrong." Especially in a case where none of the other passengers are injured. The proximate cause of Munoz's injuries was her failure to wear a seatbelt.

(4) The jury was in fact informed that Ms. Munoz was ejected from the vehicle, and Ford's lawyers hammered that issue throughout trial.

The jury instructions did not permit the jury to consider Munoz's fault for wearing a seatbelt. Ford may have attempted jury nullification, but one can hardly blame the jury for following the court's instructions with a bad law.

(5) Ford's position that it took publicly after the verdict that the accident was caused by "driver error" is a farse. Ford's own experts, corporate representatives, and lawyers at trial all admitted and TOLD THE JURY NOT TO BLAME THE DRIVER.

I welcome Ford attorneys to write me and defend themselves here. All I know is what the press reports, and Mr. Brough's other statements have sufficient inaccuracies that I'm more inclined to trust Ford's press release than his characterization.

(6) Referring to Ms. Munoz's injury as "limp" is insulting, ignorant, or worse yet, absolutely false and misleading. Ford, Mazda and Firestone all agreed that she had a greivious injury. For example, Ford's own experts put her in a wheelchair by age 50. She was incontinent of bowel and bladder. She was a quadriplegic, for heaven's sake. That she remains capable for a number of years between now and age 50 to walk by dragging her right side is a testament to her efforts at rehab and unwillingness to quit. Your attempts to diminish her injuries are completely at odds with even Ford and Mazda, not to mention the truth.

Interested readers can google for television footage of Munoz walking out of court after her verdict, which I did before writing about the case when press coverage differed as to the extent of Munoz's injuries. "Limp" is certainly more accurate and less misleading than Mr. Brough's use of the term "quadriplegic" without the additional qualifying adjective "incomplete." Most lay readers think of a Christopher Reeve when they think of a quadriplegic, and that's not Ms. Munoz's fate. If my mistake was so egregious here, it's curious that Brough buried it as his sixth point.

(7) Yes, Firestone settled and Ford could have too, before trial. Instead, Ford chose to take a risk of loss, offering $0 to this young woman, who had over $2,500,0000 in medical expenses alone. We can't make a defendant do the right thing. We demanded a very reasonable amount in settlement and had $0 offered. By getting a sizeable verdict, maybe Ford and Mazda will do the right thing now. Of course, because we were forced to trial, we had to spend over $300,000 to prepare and try the case to verdict, so the process is exceedingly costly and not ideal for any party.

Why should Ford settle when they are not responsible for the accident? The idea that a civil defendant has only itself to blame when it insists on defending itself against improper accusations instead of settling for the plaintiffs' demands and is then faced with a large verdict is a strange one that the plaintiffs' bar pushes. We've seen it before in the McDonald's coffee case. No one ever says that the allegedly-innocent death row prisoner should have plea bargained his way into a life sentence.

(8) The case was not decided "against Ford and Mazda" solely on the basis of the tire aging theory. The case was decided on a number of factors, many of which you fail to mention: (a) hundreds of internal Ford documents showing that engineers at Ford had warned management of the problems with the Ford Explorer and why it was going out of control from tire failure events, but management decided to conceal this fact from the American public and let hundreds die instead of fixing the problem; (b) the jury was shown evidence that Ford actually heavily participated in the design of this recalled tire (Firestone made the same tires for GM and Toyota, which were not recalled)-only the Ford specification was recalled; (c) the tire had a manufacturing and design defect that Ford failed to inspect for/notice when mounting the tire at the assembly plant—Ford admitted these defects; and (d) Ford has known for years about the hazards of tire aging but provides the consumer with no information about that hazard, not even how to tell the age of a tire.

Here, Mr. Brough simply repeats an argument I refute without any attempt to address what I said. Internal debates are not evidence of a cover-up, as we've discussed on this website on multiple occasions; if internal debates are used with 20/20 hindsight to punish defendants, then what is being deterred are internal debates, and we're all much less safer as a result. I stand by my point.

(9) Your claim that we settled with Firestone and then got to somehow only blame Ford and hid the fact that we blamed Firestone is absurd, false, and just plain stupid. We did blame Firestone, and so did Ford and Mazda, and the law allows that, especially against a settling defendant such as Firestone. That is why the jury charge asked the jury to find defects in the tire. That is why the jury charge asked the jury to apportion fault between Ford, Firestone, Mazda, and the driver. Do the truth and facts matter in your perfect political ideology that all lawsuits are bad and if won, were cheated, wrong, misguided, etc.?

Brough is being disingenuous if he is claiming that his trial strategy was precisely the same as it would have been if Firestone had refused to settle and had remained in the case as a genuine co-defendant. He may have "blamed" Firestone at trial for tactical reasons, but surely asked the jury to apportion a tiny percentage of fault to them--and I'm quite confident that that percentage was a smaller percentage than Brough threatened Firestone with during settlement discussions. If Brough wishes to provide us with the settlement correspondence sent to Firestone and the transcript of the closing argument, we'll be happy to compare the two figures.

(10) Ford’s owner’s manuals were not used against Ford somehow improperly. Ford lied to the jury, and we are allowed to prove it, just like Ford would be allowed to prove the jury if we lie in trial. Ford and its experts stated UNDER OATH that tire aging was not a safety issue that can cause tire failures, or even be remotely hazardous to a user. According to Ford and its experts, you can use a tire that is 25 years old without any problems. But if you look at Ford’s 2005 tire safety section on the Ford website and certain 2006 owner’s manuals, Ford warns that tire aging is in fact a safety hazard and to not use tires that are more than 6 years old. The system would certainly be broken if we were not allowed to prove that someone is lying under oath in a court of law.

If the manuals were used as proper impeachment of directly contradictory testimony, that would be one thing, but I suspect that isn't what happened, not least because of what the jurors told the press. Regardless, Ford is in a no-win situation: if Ford believes after internal debate that it's safe to use a spare tire for the lifetime of the vehicle, but plaintiffs persist in bringing litigation over the issue, Ford can either stand by its safety manual (and face punitive damages for recalcitrance because the internal debate is used against it), or change the safety manual in a surplus of caution and then have the manual used against it at trials. Either way, consumers are worse off.

(11) As to the recall notice issue, this vehicle was purchased used by Derek Saenz and his father. Saenz graduated with high honors and was a good, smart kid. They were not sent a recall notice, but heard about the recall and took the vehicle in during the recall just to be safe. Two tires were replaced, but the tire store missed the spare tire and thought it was not recalled. This was typical of the early, confused days of the recall. Many spare tires were not replaced or even checked due to tire shortages as well. Moreover, Mazda claimed it did send a recall notice to the Saenz, but the recall notice was wrong-it did not recall the spare tire. So, if the Mazda recall actually got to the Saenz, it would have advised them to keep the bad tire. There was no allegation of a need for a second recall letter.

Again, Brough is disingenuous. The main allegation was a "failure to warn." Mazda did warn, and the complaint is that Mazda did not warn enough, and should have warned more. Warnings include additional recall notices. And why is it Ford's fault that the tire store failed to replace a recalled tire, or that Mazda failed to adhere to Ford's recall requests?

Brough offered to answer any questions I have about the case. I have several. Perhaps readers can think of others, and maybe he'll respond in the comments.


1. Who was the judge on the case?
2. How much money did your law firm contribute to that judge's election campaign?
3. How much money did the Watts Law Firm contribute to that judge's election campaign?
4. If your theory of the case is that auto manufacturers fail to warn consumers of tire deterioration, and that all tires deteriorate, what relevance is it that Ford contributed to the design of the tire?
5. Why doesn't the tire store's failure to replace a recalled tire break the chain of causation? Are you claiming that Ford told the tire store not to replace the tire?
6. Were any of the other belted passengers in Saenz's car injured? If not, how does an expert's testimony that some belted passengers may be injured in a different rollover "contradict" his testimony that a belted passenger would not have been injured in this rollover and that Munoz's injuries came from her ejection and failure to wear her belt?
7. Re #2 in your comments: is it your position that Ford should plead defenses that are explicitly barred by Texas state law? Or is it your position that there is a way to plead contributory negligence for failure to wear a seatbelt that complies with pre-2003 Texas law?
8. What percentage fault did the plaintiffs' closing argument ask the jury to attribute to Firestone? What percentage fault did the plaintiffs threaten to attribute to Firestone if they failed to settle?
9. Were there any Texas citizen co-defendants? If so, who, and when (if ever) were they dismissed from the case? Did Ford attempt removal to federal court on grounds of fraudulent joinder? If so, did your firm seek remand?
10. Did any settlement communications with Ford or Firestone mention the propensity of Nueces County juries to award large verdicts?
11. Did any settlement communications with Ford or Firestone mention the propensity of local judges to favor plaintiffs' firms that supported their election campaign?
12. What was the amount of the settlement demand made of Ford?
13. Did the plaintiffs make any motions to exclude evidence that were granted? If so, for what?
14. Did Ford make any motions to exclude evidence that were denied that resulted in the evidence being introduced into trial? If so, for what?

Posted by Ted Frank on February 16, 2006 07:15 PM | Permalink
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» Rose Marie Munoz and the $29-million limp from Overlawyered
(Post updated on Jan. 30 to reflect confirmation that Munoz was a passenger.) Here's a case that could almost serve as a "spot-the-issues" model question for a law-school exam on the need for litigation reform.... [Read More]

Tracked on February 16, 2006 07:24 PM

» El Defenzor on the Watts Law Firm from Overlawyered
El Defenzor, a Corpus Christi paper of questionable credibility, claims to have uncovered e-mails among the plaintiffs' bar in that town hand-picking judges for the bench at election time. Unfortunately, this germ of an interesting... [Read More]

Tracked on February 18, 2006 10:32 AM
Comments

Are you aware of the testing performed by Car & Driver magazine regarding the Explorer tire failure/rollover cases?

They took an Explorer, and were repeatedly able to bring it to a stop from 70mph after blowing the rear tire, without leaving the lane, and with no hands on the steering wheel.

Posted by: dweeb | February 17, 2006 04:11 PM

As a defense attorney practicing in South TX, and longtime fan of OL, I was very dismayed to see a link to a Defenzor article used as the only cite in making accusations impugning the integrity of our local bench. For those who don't know, El Defenzor is the publishing equivalent to the National Enquirer, and I think falls behind in circulation numbers to even one of the local highschool newspapers.

El Defenzor is basically one tinfoil hat -wearing individual’s exercise in stretching the boundaries of the First Amendment. There is no real staff, no real offices, it is not recognized by any press association, and has been threatened with libel suits countless times for the often ludicrous accusations made about both public and private individuals.

While many of us will agree that the Munoz case has several issues that need to be examined in a public light, I would posit that citing a blatant push-article with numerous “unnamed sources” in an inflammatory tabloid such as El Defenzor is the very definition of being disingenuous. What’s next, a debate on foreign relations in the Middle East, using only air-dropped propaganda leaflets from the first Gulf War?

I was somewhat surprised that Mr. Braugh (whom I have never met) was kind/brave/foolish enough to take part in this discussion -- hopefully both sides can keep their blows above-the-belt, as it were. Watching a pissing match between two complete strangers, one of whom has a vested financial bias in the outcome of the case (and no doubt its effect on similar trials in the future), while the other appears to have conducted no legal research on TX-specific law, that he himself has called into question, does not do much to further intelligent discourse on the Munoz case. At this rate, I would predict Godwin's Law will be invoked within the next 3 posts.

Questions I personally would like to see addressed:
– How many plaintiff attorneys wound up getting referral fees from this case (compared to those that actually tried the case)?

– How did the Plaintiff’s case deal with the issue of the spare tire being used in excess of the recommended MPH for a spare tire at the time of the accident?

-- A brief discussion about any settlement credits, hi/lo issues, and/or the % of comparitive fault/breakdown the jury returned with.

Posted by: wheat | February 17, 2006 05:56 PM

It's not true that El Defenzor is the only cite; I also cited to a San Antonio Express News story that is consistent with the saner allegations in the El Defenzor rant. I agree that I wouldn't put any great deal of credibility on El Defenzor; they hurt their own credibility with wild-eyed conspiracy accusations beyond the scope of the evidence they have marshalled. But forging e-mails would seem to be an especially reckless activity; the e-mails that El Defenzor are quoting from appear genuine, and my reference to the accusations is a reference to the inferences one can draw from the e-mails themselves. I'd love to see a credible press organization researching these e-mails: there seems to be a germ of a big story there. Anyone from the Houston Press or Dallas Observer or Texas Monthly reading this?

It's also not true that I did no Texas-specific research; I specifically looked into the seat-belt issue. The main point I made about the settling co-defendant--that the status quo permits a plaintiff to play co-defendants off one another in a "divide and conquer" strategy, and that the jury never learns this--remains true, even if I was incorrect about the minor Texas-specific detail regarding post-verdict offsets.

I have no intention of being the one who fulfills Godwin's rule. But I tire of the chutzpah of the most successful lobby in America complaining about a counter-lobby.

I'll pass along your questions, which are good ones.

Posted by: Ted Frank | February 18, 2006 05:00 AM

Actually, here's one question both of you seem to have missed: Regarding plaintiff's lawyer's point (10)--copied below--can I assume the accident happened at least four or five years before the trial? If so, how does the plaintiff's lawyer try to use a 2005 Ford manual for a 2001 (or earlier) car, instead of using the Ford manual specific to that car's actual model year? [Unless plaintiff is saying that the manual hadn't changed at all from the model year of the car to the 2005 manual.]

(10) Ford’s owner’s manuals were not used against Ford somehow improperly. Ford lied to the jury, and we are allowed to prove it, just like Ford would be allowed to prove the jury if we lie in trial. Ford and its experts stated UNDER OATH that tire aging was not a safety issue that can cause tire failures, or even be remotely hazardous to a user. According to Ford and its experts, you can use a tire that is 25 years old without any problems. But if you look at Ford’s 2005 tire safety section on the Ford website and certain 2006 owner’s manuals, Ford warns that tire aging is in fact a safety hazard and to not use tires that are more than 6 years old. The system would certainly be broken if we were not allowed to prove that someone is lying under oath in a court of law.

======================================
Am I the only one who sees something . . . ODD . . . in this?

Posted by: Melvin H. | February 18, 2006 01:21 PM

I cannot respond to all of your questions in this forum, because to do so would require me typing hundreds of pages in response to your questions. The court file is a public record and anyone can go look at it and copy it if you want to see motions to exclude evidence, the court's rulings, the trial transcripts, etc. I will not respond to political questions or any questions that attempt to impugn the bench or bar as these questions are not deserving of a response.

With respect to your comments in response to my original posting, Ford contended that even under the "old law" that made seatbelt use inadmissible in most cases, the belt use issue was still admissible to negate causation (i.e., to prove that the only reason she got hurt was lack of belt use). So, if Ford is correct, yes, Ford should have pled and contended this and it may have been more successful in using the belt evidence.

In response to your response to (5) of the original posting, I don’t know what to say. You claim you can’t trust me because of some unspecified “inaccuracies” by me. You were not at trial. You have not bothered to read the trial transcript. And you won’t even accept the fact that Ford told the jury in closing argument to put 0% responsibility on the driver and 100% responsibility on Firestone. That is what us common folks call inherent bias being exposed.

In response to your response to (6) and (7) of the original posting, you were not at this three week trial, have seen none of the evidence, and yet you somehow know that Ford was not responsible for the accident and that the injuries were insignificant. How can that be? Would it surprise you to know that Ford hired a $1,500 per hour damages expert who testified that Ms. Munoz needed at least $1.4 million in future medical care from her injuries sustained in the accident? Does that sound like someone who is mildly injured?

Your claim that I am disingenuous in response to (11) in stating that the case was something other than a failure to warn case and somehow claim to know that the “main allegation was a ‘failure to warn.’” You are just making this up as you go along with no basis in fact whatsoever. If you read the jury charge, question 1 was design defect in the vehicle, question 2 was marketing defect in the vehicle (warnings); question 3 was design defect in the tire; question 4 was manufacturing defect in the tire; question 5 was marketing defect in the tire (warnings). So, in truth, only one of 5 liability questions asked the jury to hold Ford/Mazda responsible for failure to warn (question 2). In fact, the majority of the questions sought to hold Firestone accountable for the tire defects (and these questions were strongly urged by Ford in its defense).

Response to Question 4: With respect to the relevance of Ford's design of the tire in a case in which tire aging is an issue, you have several questions and have made several comments that seem to suggest a fundamental misunderstanding of the law. Under the law (and good common sense as well), it is axiomatic that there can and often is more than one cause of an accident or product failure. That's why juries are required to apportion fault/responsibility between products and people. Thus, the relevance of Ford's design of the tire is that the design of the recalled tire contributed to the tire failure in some respects, and even Ford agreed with that by blaming Firestone for the bad design. The truth, however, was that Ford and Firestone had blame for the design. The ultimate relevance, then, is that this evidence assists the jury in assessing proportionate responsibility for the accident between all parties.

Response to Question 5: Again, there can be and is often more than one cause of an event. For example, a tire store’s failure to replace the recalled tire may be a superceding cause if the only reason for the accident was a tire failure. But in a case such as this, it just is not true for a number of reasons: (1) Ford and Mazda failed to argue it (maybe they should hire you); (2) many vehicles have tire failures, but not all vehicles have a suspension design defect that cause the vehicle to fly wildly out of control in such events; and (3) the recall was for design defects, and we proved that the tire failed in part due to age degradation. The Explorer has some rather unique and harsh handling responses to tire tread separation events that (depending on the specifics of the event) may make the vehicle literally uncontrollable. To say that someone should be held 100% responsible for failing to pull the spare tire off during the recall would be like blaming the driver for getting up out of bed that day (if the driver just would have stayed at home that day, the accident would never have happened). One simply cannot divorce “causation” from fault or responsibility—they must coincide and the law allows and requires the jury to consider everyone’s percentage of blame.

Response to Question 6: Other belted and unbelted occupants received a variety of non-life-threatening injuries. Interestingly, in a case that my firm reviewed this week, there were six unrestrained occupants of a vehicle in a tire failure rollover accident and only one restrained occupant. The six who were ejected were fine. The belted driver died. Injury causation in rollover accidents involved complex science and biomechanics. You really can’t assume belt use will save the day, although I strongly believe we should all wear belts at all times.

Response to Question 7: Again, Ford contended that even under the "old law" that made seatbelt use inadmissible in most cases, the belt use issue was still admissible to negate causation (i.e., to prove that the only reason she got hurt was lack of belt use). The case law is somewhat divided and unclear of this issue. Some states that have a seatbelt law like Texas’ former law allow belt use to be admitted on the limited issue of causation. So, if Ford is correct, yes, Ford should have pled and contended this and it may have been more successful in using the belt evidence at trial.

Response to Question 8: Plaintiffs asked the jury to put 80-90% on Ford and Mazda. We never threatened Firestone with anything. This was the first trial where relative fault of Ford and Firestone in a recalled tire/Explorer case was assessed, so threats get you nowhere. No one knows/knew how the evidence will come in and how or even whether each defendant’s product will be found to be both defective and a cause of the accident. It is not our practice to guess at these matters. In any event, Ford and Firestone are significantly savvy when it comes to lawsuits and negotiation strategies. One of my favorite quotes comes from a Firestone lawyer responding to threats by a plaintiff’s lawyer—“Bring it on.” Threats do little but make you an ass or a target, so I try to avoid them.

Response to Question 9: Yes, there were Texas defendants in the case, including the driver and his father, who Ford and Mazda sued. They were never dismissed, the case was never removed, and there was no remand.

Response to Question 10: No.

Response to Question 11: No.

Response to Question 12: I won’t say what the demand was exactly because doing so can violate confidentiality in a number of respects. I will, however, tell you that the demand was made before my firm was ever hired to try the case and that it was a request that Ford pay substantially the same as what was paid by Firestone in settlement.

Response to Questions 13-14: Both sides make objections to evidence throughout trial. Ford and I both won and lost literally hundreds of evidence objections throughout the trial. Again, if you want a blow by blow, you need to read the three weeks of trial transcripts.

Response to the Car and Driver Question: Tire failure testing has evolved over the years. It has been difficult to come up with an accelerated artificial tire failure test that accurately represents real world failures. The critical thing to know is that testing has shown that tire blowout (or air loss) failures are very different from tread belt separation failures. Tread seps have been demonstrated to be very deadly, as is confirmed by the over 200 dead and thousands injured in Ford Explorer tire tread separation failure accidents. Whether testing reveals a significant safety hazard depends in large part on the testing and the protocols used. In testing, professional drivers are used who are expecting the failure and who are trained in how to respond. The nature of the failure event itself, however, seems to be more critical. For example, most tread separation testing involves using a sharp knife that pre-cuts the tread almost all the way through so that the time to failure is minimized. As a consequence, the duration of the tread peel is very short (the tread comes off very quickly and usually in one piece). In these testing circumstances, there is very little vehicle-tire interaction and hence very little vehicle disturbance and no problem with safely stopping the vehicle. In a recent study conducted by the National Highway Traffic Safety Administration, over 60% of normal drivers who are not expecting a tread separation in an Explorer-type vehicle were shown to lose control in the National Advanced Driving Simulator. In our case, testing conducted by Ford showed a professional driver losing control of an Explorer during a tread separation event. In that testing, the tire failure event was longer and resulted in multiple tread pieces and fragments. The vehicle required over 150 degrees of rapid steering and counter-steering to keep the vehicle out of the median, but even the professional driver who was expecting the event crossed two lanes of traffic and went onto the emergency lane.

In response to the questions of the practicing attorney in South Texas:

– How many plaintiff attorneys wound up getting referral fees from this case (compared to those that actually tried the case)?

No one. Verdicts are not paid, so there are no fees to divide. The case was settled with Firestone before my firm was hired, so there was no sharing of the Firestone settlement with my firm. If this case settles, fees will be divided, with the client’s consent, between my firm and the original firm that handled the Firestone part of the case and assisted in trial prep and case workup in the Ford part of the case.

– How did the Plaintiff’s case deal with the issue of the spare tire being used in excess of the recommended MPH for a spare tire at the time of the accident?

The spare tire was not overused or run too fast. It had more than half of its tread life remaining and looked, was never run in excess of its speed rating, and appeared to be just fine. (These tires were rated “105S” which means that they pass a high-speed test of 110-112 mph. The Explorer will not even go that fast, and the accident occurred at about 70mph).

– A brief discussion about any settlement credits, hi/lo issues, and/or the % of comparitive fault/breakdown the jury returned with.

If Ford/Mazda ever are required to pay, then there will be a settlement credit from Firestone that will be deducted from any judgment. A “hi-low” was offered by the plaintiff during trial, but Ford/Mazda refused to even consider the idea. The jury put 75% on Ford, 10% on Mazda, and 15% on Firestone. That was probably one of the questions the jury struggled with the most. There is no magic way to add up fault, no formula. At a basic level, though, Ford has primary responsibility for the vehicle and its defects, failure to warn about the hazards of tire aging, and shared responsibility for the tire design defect and manufacturing defect, whereas Firestone merely had responsibility for tire defects. Mazda’s only real individual exposure was the tire aging issue.

Posted by: Roger S. Braugh, Jr. | February 18, 2006 03:55 PM

What Mr. Brough calls my misunderstanding of the positive state of the law is really a disagreement with my normative position. I'm well aware of the de facto death of proximate causation and that a plaintiff is allowed to ask a jury to disregard multiple interceding causes to place the brunt of an overstated damages award on a remote deep pocket. It doesn't mean that I have to approve of it. (I note further that I never said that Munoz wasn't injured, merely that "quadriplegic" was a misleading description for someone who walked out of the trial.)

If we're to believe Mr. Brough, many of the other problems I identify with the result are justifiable because of supposed mistakes by the defense attorney. Perhaps Ford's attorneys did fail to raise common-sense defenses and also failed to notify the press office that its grounds for appeal do not exist, as Mr. Brough wishes us to believe. But if the result is to be attributed to Brough outlawyering Ford's attorneys, then it speaks to another, different, but just as fundamentally important problem with the justice system today: the concept that a trial is a type of reality game-show, and that millions of dollars in the economy can be shifted based on such games. It means that businesses survive or fail on the skills of their attorneys rather than on the skills of their entrepreneurs and engineers—and that our best and brightest students are drawn to the rent-seeking occupations and the rewards they provide rather than to productive pursuits.

I made no political slurs on the judge in question, but it's interesting that Mr. Brough seems to feel that the very fact of disclosure would constitute such a slur. There's a term in game theory for the inference one can draw by the refusal to disclose. Of course, we know what other plaintiffs' attorneys tell defendants about trying cases in Nueces County.

Posted by: Ted | February 18, 2006 09:09 PM

El Defenzor newspaper has a office on Main Street Robstown. In fact it has the biggest sign in the downtown area and in one of the most attractive building. It does have offices and staff. It is a member of the Texas Community Newspaper Association. The founder and editor -- Homer Villarreal -- has two masters degree and finished his doctoral classes (except his disseration).
El Defenzor servess about 12 counties in South Texas and is bilingual.
George W. Bush, Jesse Jackson, Governor Rick Perry, national and international figures have been interviewed over the years in this publication over the years. In fact even conservative Talk Radio in the Corpus Christi area (1440 KEYS) allows its founder to transmit live for two hours -- 7 am to 9 am -- and most Hispanic radio stations have endorsed and given the founder an unconditional invitation.
Roger Braugh should have been asked about the authenticity of the "emails" ... he is part of "The Club"... Several new articles have appeared on "The Club" and Braugh is clearly in the core group of "millionare lawyers" plotting and scheming to influence the bench... visit www.defenzor.net for futher info.

Posted by: J. Condotti | February 22, 2006 02:41 AM

An anonymous commenter (whose comment I accidentally deleted) writes to say: "Watts' mother was the trial judge. She overruled virtually all of the Ford Lawyers' objections." I haven't been able to verify this, though Watts's mother is a Nueces County trial judge.

Posted by: Ted | March 2, 2006 06:15 PM

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