Thursday, October 5, 2006
I don't think I've linked to Tort Deform as yet. It's a project of the Drum Major Institute, and it's got some interesting items from time to time. It is worth reading.
That said, I've got some issues with today's post from a factual standpoint. [Update: The TortDeform post has removed the memo excerpt and noted the errors in the version on the front page; at least right now, the first link in this paragraph still goes to a version with the memo.] The basic idea of it is to use the Ford Pinto gas tank litigation as a basis for an argument against a variety of liability modifications.
To be clear, I'm generally opposed to many of the modifications that they're against (caps, etc.), but let's take a look at the use of what is identified as "the actual Ford memo relied upon in deciding to let people die." Earlier in the post, it is made clear that the subject is the gas tank:
The gas tank in the Pinto was known by Ford engineers to be defective. If a Pinto was rear-ended at under 30mph, there was a likelihood that the gas tank would be torn open by protruding bolts, causing gasoline to pour into the car's interior. At 40mph, the same thing would happen... except the doors would also be jammed shut and people would be trapped in their burning Pinto.
And here's the excerpt shown in the post:
Now, a couple of years ago, I wanted to talk about this very memo in class, and I dug around for a few minutes and found this version of it:
Now, the one I found is clearly different, so maybe it's not the original. Given the timeframe, my guess is that the one on Tort Deform is the original one (given its non-proportional typeface).
But I do notice that the latter one has a header that suggests the issue involves rollovers, not rear-end collisions, and it seems unlikely that it was simply made up. If that's the case, it may be problematic in other cases, but not in rear-end cases.
I also note that among the "costs" (on both versions) are "11 million cars" and "1.5 million light trucks." I cannot imagine that there were ever 11 million Pintos sold, and I'm quite certain that the Pinto was never a light truck.
Gary Schwartz's piece at 43 Rutgers L. Rev. 1013 (1991) did a nice job, fifteen years ago, of explaining the myths associated with the memo -- and pointing out that it was not admitted in the trial precisely because it was irrelevant. It was directed at a proposed NHTSA regulation and used NHTSA's numbers for the financial figures associated with injuries, deaths, etc.
Maybe Ford did this sort of calculation as related to rear-end collisions. Maybe it would be irresponsible for them not to do such a calculation, or maybe it would be irresponsible for them to do one. But this does not appear to be that calculation, and so it's really not the smoking gun it typically gets identified as.
But there are enough good arguments against to the liability modifications involved that I don't think this needs to be in the mix.
[Note: There are rather interesting bits in the comments to this post as well.]