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Tenn. Jury Returns $105M Verdict Against
DaimlerChrysler Over Minivan Seats
Seat collapse in Tennessee wreck blamed for death of
baby

R. Robin McDonald
Fulton County Daily
Report
12-01-2004

A Tennessee jury has socked DaimlerChrysler Corp.
for $105.5 million after finding that a baby's 2001 death was caused
by a faulty minivan seat.

The Nov. 23 verdict in the
Tennessee case, Flax v. DaimlerChrysler, No. 02C1288, (Tenn.
1st Cir., Nov. 23, 2004), is one of four product liability cases
that Columbus, Ga., attorney James E. Butler Jr. has brought against
DaimlerChrysler targeting minivan seat backs that collapsed during
collisions, injuring or killing passengers.

Butler said
DaimlerChrysler previously settled two of those cases confidentially
with his clients. Another one is awaiting trial in Orlando, Fla.

The three-week trial in Nashville, Tenn., featured the
testimony of a former DaimlerChrysler manager, who testified that
the automaker knew the seats in its minivans were unsafe and
colluded with a federal regulatory agency to cover up the
information, according to Butler and co-counsel George W. Fryhofer
III, both partners at Butler, Wooten, Fryhofer, Daughtery &
Crawford in Columbus and Atlanta.

Last week's verdict is one
of at least a half-dozen big jury verdicts that Butler and his firm
have secured in the past decade, many of them in vehicle
product-liability cases. In two actions against General Motors
Corp., Butler's firm won $150 million in a 1996 SUV rollover case,
and $105 million in a 1993 case where a pickup's side fuel tanks
caused it to burst into flame after a collision.

In 1998,
the firm won a $454 million verdict against Time Warner -- the
largest civil verdict affirmed by the state appellate courts in
Georgia's history -- on behalf of investors in Six Flags Over
Georgia. In the suit, Six Flags investors accused Time Warner of
skimping on capital investments, thereby lowering the park's market
value and total worth.

DaimlerChrysler has vowed to appeal
the Tennessee verdict, which includes $98 million in punitive
damages, claiming that the crash that led to 8-month-old Joshua
Flax's death was caused by a reckless driver, not a flaw in the
design of the automaker's Dodge Grand Caravan. In a news release
distributed in response to calls for comment about the case,
DaimlerChrysler labeled the verdict "grossly excessive,
unconstitutional, and a miscarriage of justice."

Cleveland,
Ohio, attorney Lawrence A. Sutter of Sutter, O'Connell, Mannion
& Farchione defended DaimlerChrysler. Sutter's office referred
questions about the verdict to DaimlerChrysler's American
headquarters in Auburn Hills, Mich.

CHRYSLER: DRIVER ALSO
RESPONSIBLE

DaimlerChrysler spokesman Michael Aberlich
said that during the compensatory damages portion of the trial,
jurors found that the speeding driver of the car that rear-ended the
minivan, Louis A. Stockell Jr., shared equal responsibility for the
baby's death. "But when it came to punitives, the company bore the
brunt of it," Aberlich said.

The Tennessee case went to
trial because the baby's parents, Jeremy Flax and Rachel Sparkman,
"were people of very strong convictions," explained Fryhofer.

"Even though they had an opportunity to settle the case,
they wanted to get the word out about this defect and realized the
only way to do that was through a jury verdict," Fryhofer said.
"They wanted to be sure no more parents had to watch their own kids
killed or brain-damaged by these defects." Fryhofer said he could
not disclose the settlement offers Daimler-Chrysler made.

At
the end of the trial's first phase, the jury awarded $5 million in
compensatory damages for the baby's wrongful death and $2.5 million
to the child's mother for negligent infliction of emotion distress
caused by witnessing the infant's fatal injury and death.

During the punitive damages portion of the trial, the jury
deliberated just two hours before awarding $98 million to the
infant's parents. Butler said he had asked for $100 million in
punitives.

CARMAKER ACCUSED OF COVER-UP

Throughout the trial, the plaintiffs' attorneys accused
DaimlerChrysler of a cover-up of "hundreds of other similar
incidents" of seat back collapses resulting in passenger injury or
death while it continued to market its Chrysler Town and Country
minivan, Plymouth Voyager, and Dodge Caravan as safe, family
friendly vehicles. The automaker has sold more than seven million
minivans.

The backward collapse of front seat backs in the
minivans during rear-end collisions would propel the drivers and
front-seat passengers backward in a rear-end collision, often
causing their heads to collide with children riding in the middle
seats, Butler said. That is what happened to 8-month-old Joshua Flax
when a driver slammed into the back of the baby's grandparents'
minivan at 70 mph in 2001 in Nashville, he said.

Five other
passengers walked away from the accident with only minor injuries.
But the front-seat passenger's seat back collapsed, throwing a
family friend backward. He was not injured, but his head collided
with the baby's skull, fracturing it, said Fryhofer. Joshua Flax
died the following day. The baby was injured "only because the seat
back collapsed on him," Fryhofer said. "This has been a defect that
has been brain-damaging and killing children in the family minivans
for years."

"The horrible thing about these cases," said
Butler, "is that in almost every case, it's a parent whose head
kills or maims his or her own child."

RECORDS SEALED

Testimony during the Tennessee trial revealed that the
automaker has sealed court records of an undisclosed number of suits
involving failed minivan seat backs. A former Chrysler employee who
testified at trial said he is aware of eight other cases, in
addition to Butler's, that DaimlerChrysler has settled
confidentially.

Butler said the automaker was compelled in
the Flax case to inform Tennessee Circuit Judge Hamilton
Gaden of the total number of seat back failure cases the company has
settled and the sums paid to plaintiffs in each case. But Fryhofer
said, over his and Butler's objections, the judge allowed
DaimlerChrysler to file that information under seal. The attorneys
also said they were barred by the court from informing the jury or
releasing that information to the public.

"I guess they
don't want the public to know," Butler said.

But Chrysler
spokesman Aberlich argued that the manner in which the Flax baby's
skull was fractured was "a freak occurrence."

"This was a
high-speed accident," he said. "Many things can happen in a
high-speed accident. My understanding is that five people walked
away. The irony, the real sad irony, is that one did not."

Butler argued during the trial that DaimlerChrysler "has
known for over 20 years" that its minivan seats were "deadly
dangerous" because of their tendency to collapse backward during a
collision.

Testimony from experts at the trial, among them
former Chrysler manager Paul V. Sheridan, showed that minivan seats
collapsed in every rear impact test the automaker conducted.

"Notwithstanding the knowledge that the seat was collapsing
in all of its internal rear crash tests, Chrysler was encouraging
parents to put children behind the seats they knew would collapse,"
Fryhofer said.

In 1992, Sheridan was appointed to chair
Chrysler's "Minivan Safety Leadership Team" to investigate minivan
safety concerns. The leadership team concluded that the collapsing
seatbacks needed to be redesigned, but Chrysler disbanded the team
and destroyed the minutes of its meetings, according to Sheridan's
testimony.

MANAGER LATER FIRED

Sheridan said
he was fired a month later. By then, he said, he had informed his
superiors that he intended to go to federal regulators with his
safety concerns. Sheridan said Chrysler then sued him to prevent him
from speaking about the company. Chrysler later withdrew the suit.

Sheridan said the committee also reviewed other safety
complaints against minivans, which prompted an agreement involving
Chrysler, the National Highway Traffic Safety Administration and the
Justice Department. As part of that deal, Sheridan testified, NHTSA
agreed that it would reject requests for information about minivan
safety defects made under the federal Freedom of Information Act and
Justice Department attorneys would defend NHTSA's refusal to release
the requested material.

NHTSA's current general counsel,
Jacqueline Glassman, formerly worked in the general counsel's office
at Chrysler, Sheridan testifed. According to Butler, NHTSA's former
rulemaking chief, Barry Felrice, is now working at DaimlerChrysler.

Company spokesman Aberlich said he could not verify
information about the employment of Glassman or Felrice.

But
the Chrysler spokesman argued that the company's minivan seat
standards "far exceed" NHTSA standards. The seats, he said, are
designed to absorb the impact of a crash. In minivan seats, the
impact of a crash is reduced by the seat back collapse, he argued.
While the plaintiffs' lawyers argued that a stronger seat was safer,
Aberlich continued, "There is not a universal agreement as to which
is better" among auto industry engineers."

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