# Opposition Brief — Ford Motor Company v. Buell-Wilson, 127 S. Ct. 2250 (2007) (No. 06-1068)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2116%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

No. 06-1068

IN THE

Supreme Court of the United States

Senertaeiemnanitieetinattinaiessclemaienes

FORD MOTOR COMPANY,
Petitioner,
.
BENETTA BUELL-WILSON and BARRY S. WILSON.

Respondents.

Ow Pretririon FOR A Writ oF CERTIORARI TO THE
Court oF ApPpEAL OF CALIFORNIA,
Four. H AppEi tate District, Division Ont

BRIEF IN OPPOSITION

Jerome B. Fark. Jr. Dennis A. SCHOVILLE
Counsel of Ree ‘ord Louis G. ARNELL

Steven L. Maver James S. LAGMIN

Keith D. KESSLER SCHOVILLE & ARNELE, LLP

Howsarp Rick NEMEROVSK! 1230 Columbia Street

Canapy Fark & RABKIN Suite 800

A PRroression At CORPORATION San Diego. CA 9210]
Three Embarcadero Center (619) 232-990]

7th Floor
San Francisco, CA 94111]
(415) 434-1600

Attorneys for Respondents

i
QUESTIONS PRESENTED

Ford prefaces its statement of the Questions Presented with
an incomplete précis of the facts. Although the jury verdict was
for more than $368 million, the trial court reduced the award to
$75 million in compensatory damages and $75 million in
punitive damages. Petitioner’s Appendix (Pet. App.) 15a.
The California Court of Appeal then reduced the total
compensatory damages for both plaintiffs to $27.606 million
and the punitive damages to $55 million. /d. at 61a.

li

TABLE OF CONTENTS

Page
PUBS TIONS PRESENTED ....ccccccccccccecs i
TE OF CONEBINIG ccccccccccccvcccccccs ii
TABLE OF CITEDAUTHORITIES ............ iv
TABLE OF APPENDICES ..........cccccccees ix
STATEMENT OF THE CASE ................. l
REASONS FOR DENYING THE PETITION ..... 4

I. FORD DID NOT PROPERLY RAISE ANY

OF ITS THREE QUESTIONS PRESENTED

AT EVERY STAGE OF THE STATE COURT
CME, ov vcsccccscercvcesere 4

Il. FORD’S VAGUENESS CLAIM PRESENTS
NO ISSUE MERITING CERTIORARI. .... 10

ll. THE OPINION’S ANALYSIS’ OF

REPREHENSIBILITY PRESENTS NO
ISSUE MERITING CERTIORARI. ....... 14

IV. NOTHING IN PHILIP MORRIS SUPPORTS
PEPUEED GP PEER EEOENe ccc ccccccvcvccvcces 19

A. Ford Did Not Preserve Any Issue Affected

By Philip Morris, Precluding A Grant And
CC 19

1. Ford Did Not Preserve The

Substantive Issue Addressed In

ESL 19

iii

Contents

2. Ford Did Not Preserve An
Instructional Error Claim. ........

B. The Court of Appeal Did Not Punish Ford
For Injuring Occupants Of Other Ford
WO Sedctaceks deen ueeteccess

l.

CONCLUSION

SA eke eee aaa em Bee

IN es oe ar te ae eee

The Opinion Does Not Allow
Improper Uses Of Evidence Or Jury
Arguments Of Any Sort Rejected In
Pu NGS Shes bee 406 ee ee ws.

a.

Plaintiffs Did Not Offer
Improper Evidence Of Bronco II
I . nv sucweesuetebune

Plaintiffs Made No Improper
Argements About Bronco II
PS ar aenecducnpeaneos

The Opinion Does Not Endorse
Improper Arguments About Non-
Party Explorer Injuries. ......

eeeseeeeseseneesegceeceseesneseesescaes

Page

20

21

21

22

24

24

25

26

30

iv

TABLE OF CITED AUTHORITIES

Page
Cases
Am. Drug Stores, Inc. v. Stroh, 10 Cal. App. 4th 1446
SE bb beat ee ade cevike us hebedsan sce 6
Baker v. ExxonMobil Corp. (In re: Exxon Valdez), 472
wo oF, le | Ree eer 18
Barclays Bank, PLC v. Franchise Tax Bd., 512 U.S.
EE cic chr venres idee ea tiers ouees 13
Beck v. Washington, 369 U.S. 541 (1962) ........ 5
Clark v. Chrysler Corp., 436 F.3d 594 (6th Cir. 2006)
SA Ee ern ie Pee PL eee ae 16,17, 18
Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000)
ie peu eee pet ek ies Cree See in 18
Coll. Hosp., Inc. v. Superior Ct., 8 Cal. 4th 704 (1994)
BE Ee EE eee eee ne eae er ee 14
Denny v. Ford Motor Co., 662 N.E.2d 730 (N.Y. 1995)
sate AAs wd CG CREE eS kad Dw 18
Dunn v. HOVIC, | F.3d 1371 (3d Cir. 1993) ...... 13
Evans v. Centerstone Dev. Co., 134 Cal. App. 4th 151
SE 6h 5.9 00a whe Wah date MeN sea a snekes 5

Fibreboard Paper Prods. Corp. v. E. Bay Union of
Machinists, 227 Cal. App. 2d 675 (1964) ...... 21

Cited Authorities
Page

Ford Motor Co. v. Ammerman, 705 N.E.2d 539 (Ind.

oF ERT ORE Cee eer rit oer ee passim
Gotcher v. Metcalf, 6 Cal. App. 3d 96 (1970) ..... 29
Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757

SRUEE kb oe hb eb ao aoe ss Rieu sce taeeeeEes 12
Hasson v. Ford Motor Co., 32 Cal. 3d 388 (1982) ... 12
Hockensmith v. Ford Motor Co., 116 Fed. Appx. 244

te. ES A PSUR Reeser wanes pers oy wf anya a i9
In re Marriage of Goddard, 33 Cal. 4th 49 (2004) ... 9
In re S.C., 138 Cal. App. 4th 396 (2006) ......... 5
Jaramillo v. Ford Motor Co., 116 Fed. Appx. 76 (9th

PE EE erry ot ede 19
Karlsson v. Ford Motor Co., 140 Cal. App. 4th 1202

CE oss ub bab ca Nee VNA EO eee 25
Neumann vy. Bishop, 59 Cal. App. 3d 451 (1976) ... 29

Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991)
EN PET ey eee eae (cipetece tasenee aaa

People v. Gray, 37 Cal. 4th 168 (2005), cert. denied,
beg Oe ho: RR es beans coed 8

People v. Stitely, 35 Cal. 4th 514, cert. denied, 126
i se GOOG? Kaede dccconsud cee baeee 25

vi

Cited Authorities
Page
People v. Wader, 5 Cal. 4th 610 (1993) .......... 29
Philip Morris USA v. Williams, _ U.S. __, 127
De TEE, 6 bc Jobard neds seeunneuas passim
Prince v. United Nat’l Ins. Co., 142 Cal. App. 4th
DRE “Scents chcedubeeniweneade vada 6
Roberts v. Lomanto, \12 Cal. App. 4th 1553 (2003)
NP ee ee Pe epee antennae Pema ee Papal ays 5
Romw v. Ford Motor Co., 113 Cal. App. 4th 738 (2003)
atin eet nehe ba ae areas beaban wairenetes 12
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
MEE. “SoG ab a Goce e eh edie oe eke rea peeet 2, 16
Sweatman v. Dep't of Veterans Affairs, 25 Cal. 4th 62
SEE valved eke weuwadaepenw eens PPR weae 9-10
Tilbury Constructors, Inc. v. State Comp. Ins. Fund,
137 Cal. App. 4th 466 (2006) ................ 7
TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443
re Oo ee ea Pe a Li 13
Unilogic, Inc. v. Burroughs Corp., 10 Cal. App. 4th
OSC Se ee ee 5
Village of Hoffman Estates v. Flipside Hoffman
Estates, Inc., 455 U.S. 489 (1982) ............ 12

Vii

Cited Authorities
Page

Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir.

Are eo erry earn geo eer eer 15, 23
White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002)

bane ie Raden cade ea neat eoenk ne tees 13
Witte v. United States, 515 U.S. 389 (1995) ....... 22, 24
Statutes

as EE ok ib aonb we ela cu eek ae aee wee 19
ee ee OE Va covewcdckawanesearewaes 16
Car. Civ. CODE

DE Scum) oie deeds aed bat ie wan ek cares ome 7,10

DE dn kde owes ed oes choo ee cedar a wian 14

EE i aka 0 6 'u wand oo see u6 ew beeen 14
Ral; Se Gas ts IIE 6 Sb vv pwiescdwaeebens 29
Ca. R. Cr.

ES oe ee an iced e Wee ies 5,7,8,9

Sy ab chk Oe dala be 0404 ered eRe eee 10

I hanno he on a eek bare eae eae ee ee 5

Fe a ae ee ees re? Pech papa eT 5,7

EE us) doe wea oka eh sussced theres 5

Ea 6 ise 50-6 are hd eee ees eevee 5
ForMerR CAL. R. Cr.

BE ON rsa Ge ka ok a elke eee oe eee 10

Ee sc cl bon lub k abc k cites naaraues 10

rT nt eee ie ea es cal nei 10

vill

Cited Authorities
Page

Other Authorities

TER. Rap. NO. GF-177O LISS) inc ivicivedesucess 16

ix

TABLE OF APPENDICES
Page
A — Excerpts of Appellants’ Opening Brief in the
Court of Appeal of the State of California, filed
ne as cledet keen eve ketene os la

B — Excerpts of Appellant’s Petition for Review
in the Supreme Court of California, filed
i nese whw-o wae bee eedes 7a

I

Respondents respectfully request that the Court deny the
Petition for Writ of Certiorari (the Petition) seeking review of a
decision of the California Court of Appeal.

STATEMENT OF THE CASE

Ford’s Petition and its Supplemental Brief offer a one-sided
account of the facts and evidence. The Court of Appeal’s opinion
(the Opinion) fairly summarizes the events that led to this
litigation, the Wilsons’ catastrophic injuries and the evidence
at trial. Pet. App. 5a-14a.

The jury awarded Mrs. Wilson $109.6 million, and Mr.
Wilson $13 million, in compensatory damages. Pet. App. 14a.
It also awarded $246 million in punitive damages. /d. at 15a.
The trial court reduced the compensatory damages to $70 million
for Mrs. Wilson and $5 million for Mr. Wilson, and the punitive
damages to $75 million. /d.

The Court of Appeal affirmed the finding of liability. Noting
that Ford had not challenged the sufficiency of the evidence
(id. at 9a), the court described the history of the Explorer’s
design. Ford based the Explorer on a prior SUV (the Bronco II}
with a history of great instability and susceptibility to rollovers.
Id. at 9a-10a. Although it knew of these problems, Ford retained
critical Bronco II design elements bearing on stability (a narrow
track width and high engine mount and center of gravity) and
carried over a high percentage of parts from the Bronco II, while
rebranding it as the Explorer. /d. at 10a. Because making the
necessary design changes would have delayed the Explorer’s
release date, Ford management rejected repeated requests by
its engineers to increase the vehicle’s track width and lower its
center of gravity, thus preserving a lethal feature of the Bronco
Il. Jd. at 9a-10a. For cosmetic reasons, management also
increased the Explorer’s tire size, exacerbating the vehicle’s
instability. /d. at lla. In subsequent years, as it modified the
Explorer’s design, Ford management again declined for
economic reasons to improve its stability. /d. at 12a-13a.

2

The Explorer was not just unstable; it also had a weak roof
structure prone to cfush in a rollover. Jd. at 8a, 13a. Rollovers
in vehicles with sturdy roofs are relatively nonviolent events
for passengers who are properly restrained (as was Mrs. Wilson).
Id. at 13a. Ford could have significantly strengthened the roof
for about $20 per vehicle. Jd.

The Court of Appeal upheld Mr. Wilson’s $5 million
compensatory damage award and Mrs. Wilson’s $4.6 million
economic damage award, but reduced her noneconomic damages
to $18 million. /d. at 36a-37a, 60a-61a. The Petition does not
challenge the resultant $27.6 million award of compensatory
damages.

With respect to punitive damages, the Court of Appeal found
that Ford had known that the vehicle was dangerously unstable
and prone to rollover in normal driving conditions; had known
that the roof structure was weak and prone to collapse in a
rollover; and had known of technologically and economically
feasible ways to stabilize the vehicle and strengthen its roof but
chose for financial reasons not to use them. /d. at 43a-44a. The
court also found that Ford had “evinced a reckless disregard for
the safety of its customers” and had engaged in “a pattern of
deficient design regarding safety in favor of increased financial
returns and was [sic] the result of the conscious disregard of
Ford executives.” /d. at 56a. It thus concluded that “the
reprehensibility of Ford’s conduct was high.” /d. at 55a; accord,
id. at 58a, 59a.

Nevertheless, the court reduced the punitive damages to
$55 million, a ratio of essentially 2:1. /d. at 60a. It noted this
Court’s comment in State Farm that “‘[w|hen compensatory
damages are substantial, then a lesser ratio, perhaps only equal
to compensatory damages, can reach the outermost limit of the
due process guarantee.’” /d. at 58a (quoting State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)). In this
case, however, it concluded “that a two-to-one ratio is warranted
because the degree of Ford’s reprehensibility is also high.”
Pet. App. 58a-59a. It added that “[a]n award exceeding a two-

3

to-one ratio would exceed the constitutional maximum . . . under
the facts of this case.” Jd. at 60a.'

1. Ford’s incomplete statement of the case demonstrates its failure
to absorb any lesson from the Court of Appeal’s admonition that it had
“neglect[ed] to discuss the evidence in support of the Wilsons’ damages
at all, much less in the light most favorable to the judgment.” Pet. App.
27a n.6. For example, Ford seriously misrepresents the testimony of
the Wilsons’ stability expert: “Respondents” expert agreed that design
characteristics, other than those reflected in the stability index, affect
stability. As he testified, ‘[y]ou can’t tell until you go out and test it.’”
Pet. 4 (citations omitted). Ford neglects to say that the expert did test
the Explorer, and that it fared very poorly. Far from relying solely on
paper calculations of the Explorer’s stability index—as the Petition
suggests (see id. at 3)—Plaintiffs relied on their expert’s extensive
stability testing of production-model Explorers, as well as the real-world
tests that Ford itself had conducted, until the vehicle’s tendency to roll
over at 40-55 m.p.h. led Ford to abandon such tests in favor of computer
simulations. See Pet. App. 11a; 8 RT 1281-83, 1293-1301, 1318-27; 28
RT 5059:10-13; | RA 164-66, 1447-49; 9 AA 2503-17.

Ford compounds these omissions by misdescribing the testing it
does acknowledge. It stresses its claim that the Explorer “passed” the
Consumers Union (CU) test. Pet. 5. But the CU test is not a stability
test that vehicles “pass” or “fail.” As conducted by NHTSA and CU, it
measured the Explorer’s handling. Pet. App. lla; 23 RT 4115. The test
entails turning at increasing speeds through a series of cones; it ends
when the vehicle reaches a speed at which it starts to slide and hit cones.
20 RT 3513-16. It thus yields not a “pass” or “fail” but a maximal speed
at which a vehicle can navigate the course. 20 RT 3514-15, 3645-46. If
that speed is 'ess than the speed at which the vehicle rolls over, the test
will not show that rollover speed. CU and NHTSA testing thus did not
show that the Explorer rolls over on flat dry roads at sub-highway speeds.
But Ford’ own testing did reveal that fact. Ford used the CU course
differently, in order to test the Explorer for rollover. It did not stop the
test when the Explorer hit a cone, but kept going in order to determine
the speed at which it rolls over in accident-avoidance maneuvers like
that which resulted in Mrs. Wilson’s accident; that speed was 40-55
m.p.h. See 8 RT 1298-1303, 1318-27; 1 RA 164-66; 5 RA 1236-48,
1296-1300; 6 RA 1437, 1447-49; 9 AA 2503-17. When Plaintiffs’ experts
tested prodwetion-model Explorers, the results were similarly dismal.

(Cont'd)

4

REASONS FOR DENYING THE PETITION

Ford has not challenged the judgment insofar as it finds
liability for marketing a defective and dangerous product and
awards compensatory damages. The Petition seeks review only
of the award of punitive damages.

The Petition should be denied. Ford did not properly
preserve any of its Questions Presented in state court. See Part
1, infra. And on none of the issues presented does the opinion
below conflict with a decision of this Court, a federal Court of
Appeals or the highest court of a state. See Parts II-III, infra.
Finally, there is no reason to remand the case for reconsideration
in light of the decision in Philip Morris USA v. Williams, —
U.S. —, 127 S. Ct. 1057 (2007), as Ford urges in its
Supplemental Brief, for the Court of Appeal’s opinion is fully
consistent with Philip Morris. See Part IV, infra.

I. FORD DID NOT PROPERLY RAISE ANY OF ITS
THREE QUESTIONS PRESENTED AT EVERY
STAGE OF THE STATE COURT PROCEEDINGS.

Question 1 is whether California’s punitive damages statute,
as applied in this Case, is unconstitutionally vague and fails to

(Cont'd)
See 9 RT 1416-32; 20 RT 3537-43, 3546; 5 RA 1306-07; 6 RA 1615
(video).

Ford also suggests that Plaintiffs relied on evidence in ways they
did not. It asserts that “Respondents’ expert . . . relied on a Ford document
’ suggesting the Bronco IT had a ‘rollover rate three times higher than the
Chevy S-10 Blazer’” (Pet. 3 (quoting Pet. App. 10a)) and that “[wyJhile
admitting evidence concerning comparative rollover rates of other
vehicles, the trial court refused to allow Ford to present such data as to
the Explorer itself.” Pet. 3 But as the Opinion shows, Plaintiffs’ expert
briefly referred to the Ford document only to show Ford’s awareness of
the instability problem in the vehicle on which it based the Explorer--
and its propensity to conceal rather than fix such defects. Pct. App. 10a.
The court never mentioned “evidence concerning comparative rollover
rates of other vehicles” in describing Plaintiffs’ case for the simple reason
that they did not use such evidence to prove the Explorer’s defectivencss.

5

provide “fair notice.” Pet. i, 10-11. While Ford raised that issue
in the Court of Appeal, it did not present it properly to the
California Supreme Court in its Petition for Review.

Ford implies that it did so in footnote 5 of that Petition.
Pet. 9. It did not. California appellate rules require that all briefs
“{s]tate each point under a separate heading or subheading
summarizing the point.” Cac. R. Cr. 8.204(a)(1)(B); id. 8.504(a)
(subjecting petitions for review to Rule 8.204); Jn re S.C., 138
Cal. App. 4th 396, 408 (2006). Consequently, an issue raised
only in a footnote is not properly presented and is deemed
waived. See, e.g., Evans v. Centerstone Dev. Co., 134 Cal. App.
4th 151, 160 (2005) (“[P]laintiffs raise this issue in a two-page
footnote in the introduction to the opening brief. This is a
violation of court rules that require arguments to be contained
in discrete sections with headings summarizing the point. We
do not have to consider issues discussed only in a footnote”
(citation omitted)); Roberts v. Lomanto, 112 Cal. App. 4th 1553,
1562 (2003) (same); Unilogic, Inc. v. Burroughs Corp., 10 Cal.
App. 4th 612, 624 n.2 (1992) (“We do not view as adequate to
preserve an issue on appeal . . . one footnote[d] mention of
fit]”). Moreover, a Petition for Review “must begin with a
concise, nonargumentative statement of the issues presented for
review” (CAL. R. Cr. 8.504(b)(1)); the California Supreme Court
ordinarily does not consider issues not expressly raised or fairly
included therein. /d. 8.520(b)(2), (3).

Ford met none of these requirements. Its Petition for Review
identified three “Issues Presented” on which review was sought
(Respondents’ Appendix filed herewith (Resp. App.) 10a);
vagueness/"fair notice” was not among them. Nor do the
Petition’s topic headings ever mention the issue. See id. at 8a-
9a. Indeed, the body of the Petition includes not a word about a
void for vagueness or “fair notice” issue.

The issue appears only in a footnote, which is insufficient
under California law. Question | is thus procedurally barred.
See Beck v. Washington, 369 U.S. 541, 553 (1962) (federal claim
not raised in “assignments of error” in state supreme court brief,

6

as required by state procedural rule, was waived, even though
one sentence of brief mentioned claim).

Question 2 is whether the Court of Appeal “rendered the
‘reprehensibility guidepost’ a nullity.” Pet. i. Ford mainly argues
that the court misanalyzed “reprehensibility” when it “gave no
weight to the many objective factors, such as industry custom,
federal regulatory judgment, and reasonable grounds for
disagreement, that significantly mitigate against any finding of
reprehensibility.” Pet. 24.’

Ford did contend in the Court of Appeal that it had met
federal regulatory standards, and that experts reasonably disagree
about the design issues. See Appellants’ Opening Brief (AOB)
42-56. However, Ford presented this issue only as one of state
law. Id. at 56 (“[A]t most . . . Ford’s managers and engineers
were aware of reasonably debatable safety issues and made
reasonably defensible judgments about them. That cannot, under
California law, be boot-strapped into a finding of malice’’)
(emphasis added). Ford’s opening brief never claimed that the
federal Constitution required that weight be given to either of these
factors in assessing the reprehensibility of its conduct. See id. at
78-79.’ Accordingly, the claim is also procedurally barred.

2. Ford also contends that the Court of Appeal misapplied the
“reprehensibility” factor when it found that Plaintiffs were “vulnerable”
(Pet. 25) and that “*Ford’s actions were the result of intentional conduct
and deliberate decisions by Ford’s management.’” Pet. 26 (quoting Pet.
App. 57a). Ford’s Petition for Review did not present either point. See
Resp. App. lla-15a (argument that punitive damages were excessive).

3. One paragraph in Ford’s reply brief argued that federal law
required the Court of Appeal, in assessing reprehensibility, to consider
Ford’s alleged compliance with regulations and so-called “industry
custom.” Appellants’ Reply Br. 48. But California law precludes the
raising of new issues in reply briefs. See, e.g., Prince v. United Nat'l:
Ins. Co., 142 Cal. App. 4th 233, 238 (2006) (citing Am. Drug Stores,
Inc. v. Stroh, 10 Cal. App. 4th 1446, 1453 (1992)). Nor did Ford frame
its regulatery compliance and “industry custom” arguments in terms of
fedcral law in its Petition for Rehearing to the Court of Appeal. See Pet.
Reh’g 43-50.

7

The same is true of Ford’s claim about “industry custom”
(i.e., comparative statistical evidence regarding the Explorer’s
rollover rate). Ford’s opening brief in the Court of Appeal never
contended that the federal Constitution required consideration
of such evidence in determining the reprehensibility of conduct
in order to assess the amount of punitive damages. See Resp.
App. 5a-6a. Moreover, under California rules of appellate
practice, Ford’s Petition for Review adequately raised the
exclusion of its comparative statistical evidence only as an issue
of state evidence law. See Pet. Rev. 14-21. The section of the
Petition discussing federal constitutional issues (id. at 32-37)
never mentions the exclusion.* That claim, too, is procedurally
barred.

4. The Petition asserts in passing that comparative statistical
evidence “was also relevant to the due process issue of the degree of
reprchensibility of Ford’s conduct, and was required to be admitted as a
matter of state and federal due process.” Pet. Rev. 22-23. However, this
sentence was placed in a section arguing that the evidence was admissible
as a matter of state evidentiary law to determine whether Ford’s conduct
was “despicable” under Civil Code Section 3294, California’s punitive
damages statute. See Pet. Rev. 21-25 (Part I(B)); see also id. at 13 (Part
I) (framing evidence argument as raising a state law issue). But even if
it had been placed in the portion of Ford’s Petition for Review expressly
addressing federal constitutional issues, the single sentence in the
Petition contending that due process required the admission of
comparative statistical evidence would have_been insufficient under
California’s rules of appellate procedure to present this issue to the
California Supreme Court. See, e.g., Tilbury Constructors, Inc. v. State
Comp. Ins. Fund, 137 Cal. App. 4th 466, 482 (2006) (applying Rule
8.204(a)(1)(B) (as then numbered) to reject party’s attempt to raise issues
“{iJn a single sentence in its opening brief contained within its arguments
about [another issue]”).

Nor did the Petition for Review’s statement of “issues presented”
include the “due process/comparative statistics” issue. See Resp. App.
10a. A single sentence in the Petition’s body docs not comply with the
California Supreme Court’s requirement, discussed at p. 5, supra, that
every Petition “must begin with a concise, nonargumentative statement
of the issues presented for review” (Cat. R. Cr. 8.504(b)(1)) and that
only those issues will normally be considered by that court.

8

Finally, even if Ford had adequately presented this issue to
the California Supreme Court, the Court of Appeal also affirmed
the exclusion of Ford’s comparative rollover evidence as
unreliable and misleading under California law. See Pet. App.
23a-24a. Hence, the exclusion of this evidence rests on an
adequate and independent nonfederal ground having nothing to
do with Ford’s belated federal claims.

Question 3 is whether the Due Process Clause prohibits
“punish[ing] a manufacturer for selling products not at issue in
the case” or “for selling products . . . to third parties not before
the court.” Pet. i. Ford did not preserve that issue either.

As explained below (see pp. 20-21, infra), Ford did propose
a jury instruction touching on this issue. But it did not contend
before the Court of Appeal or California Supreme Court that
the refusal to so instruct the jury was error, let alone of
constitutional dimension. (And it was not error: as explained
on pp. 20-21, infra, the instruction misstated the law.)

While Ford did complain to the Court of Appeal that
Plaintiffs had asked the jury to punish it for Bronco II injuries
suffered by non-parties (see AOB 14-15; Appellants’ Reply Br.
4-5), Ford had and has forfeited that claim in no less than three
ways (two at trial and one on appeal). At trial, Ford never
objected to the parts of Plaintiffs’ closing that it now claims
improperly sought punishment for non-party injuries, thus failing
to preserve the issue. See, e.g., People v. Gray, 37 Cal. 4th 168,
215 (2005), cert. denied, 127 S. Ct. 38 (2006). Moreover, Ford
itself proposed an instruction authorizing the jury to consider
evidence of harm to non-parties. See pp. 28-29, infra. And on
appeal, Ford raised Bronco II-related jury arguments only in
the part of its brief challenging the use of Bronco II evidence as
a matter of state law (AQB 14-15}—not in those addressing

‘punitive damages. Cf Resp. App. 2a-4a.; AOB 40-63, 74-79.
In California appellate practice, a passing reference to the federal
Constitution in the text of an argument about state evidence

9

law does not preserve a federal constitutional claim. See CAL.
R. Cr. 8.204(a)(1)(B) and authorities cited at p. 5, supra.

In the wake of Philip Morris, Ford suggests that Plaintiffs
offered not just jury arguments but evidence of non-party injuries
suffered in Bronco Ils or Explorers. Supplemental Brief for
Petitioner (Supp. Br.) 4-8. Ford cites no such evidence in the
record because, as discussed below (see pp. 24-26, 27 n.14,
infra), there is none. But even if there were, Ford’s Petition for
Review did not challenge its admission. Cf Resp. App. 8a-9a.

That Petition did briefly contend that the Court of Appeal
had “found Ford’s conduct ‘more reprehensible’ because it was
‘repeated and not an isolated incident’ based on the fact that
Ford mass-marketed the Explorer [and] Bronco II.” Resp. App.
14a (quoting Pet. App. 56a-57a).° But neither the paragraph from
which Ford quotes the “repeated not isolated” passage (see Pet.
App. 56a-57a) nor any other part of the Opinion mentions the
mass-marketing of those SUVs as a reason Ford’s conduct was
reprehensible. Because the Opinion never states the proposition
that Ford attributes to the court (i.e., that mass-marketing turns
the design and sale of a defective product into “repeated
misconduct’), Ford’s argument must be that the Court of Appeal
relied on that idea implicitly, without examining its correctness.°
But to preserve that argument for review, California law required
Ford to call the Court of Appea!’s alleged (and assertedly
erroneous) assumption to that court’s attention in a petition for
rehearing. CaL. R. Cr. 8.500(c); In re Marriage of Goddard, 33
Cal. 4th 49, 53 n.2 (2004); Sweatman vy. Dep t of Veterans Affairs,

5. Philip Morris makes clear that a jury may, in evaluating the
reprehensibility of a manufacturer’s conduct, consider the disregard for
public safety inherent in knowingly selling dangerous products.
See pp. 21-22, infra.

6. In reality, the Court relied on no such idea: it found Ford’s
misconduct “repeated” because Ford repeatedly made choices sacrificing
public safety for profits and production schedules, through the
long history of the Bronco II and successive models of the Explorer.
See p. 23, infra.

10

25 Cal. 4th 62, 68 n.1 (2001).’ Ford did not do this: the treatment
of mass-marketing as repeated misconduct, or indeed the
imposition of punishment based in any way on third-party
injuries, is one of the few issues that Ford’s 68-page Petition
for Rehearing did not raise. Accordingly, Ford failed to preserve
any such issue.

Summary. Not one of the issues Ford now presents was
properly raised at every stage of the proceedings below.
Moreover, Question 2 is also barred, insofar as it concerns
comparative statistical evidence, because the Court of Appeal’s
affirmance of the ruling excluding this evidence rests on an
adequate and independent state law ground.

Il. FORD’S VAGUENESS CLAIM PRESENTS NO
ISSUE MERITING CERTIORARI.

Ford’s vagueness argument is really a quarrel with
California law that it has tried to repackage as a federal question.
Ford first contends that the Court of Appeal “dismissed as
irrelevant all objective standards,” including “compliance with
federal regulations and policy judgments, and the existence of
an objectively reasonable disagreement in the engineering
community,” in awarding punitive damages. Pet. 13 (emphasis
added). It then argues that this decision has rendered the state’s
punitive damages statute (CaL. Civ. Cope §3294) void for
vagueness, at least as applied to it. Pet. 9-22. Even if Ford had
properly presented this issue to the California Supreme Court,
it would not merit certiorari.

7. California Rule of Court 28(c) (now Rule 8.500(c)) provided
that “[a]s a policy matter, on petition for review the Supreme Court
normally will not consider an issue that the petitioner failed to timely
raise in the Court of Appeal” (id. 28(c)(1)) and that the Supreme Court
“normally will accept the Court of Appeal opinion’s statement of the
issues and facts unless the party has called the Court of Appeal’s attention
to any alleged omission or misstatement of an issue or fact in a petition
for rehearing.” /d. 28(c)(2). Here, the “opinion’s statement of the issues”
never mentions mass-marketing as a basis for finding reprehensibility;
the California Supreme Court was entitled to accept that framing of the
issue.

11

In the first place, the argument’s premise is demonstrably
false. Ford contended below that, as a matter of California law,
those circumstances preclude punitive damages. The Court of
Appeal did hold that compliance with federal regulations and
the existence of disputes in the engineering community are not
absolute defenses to an award of punitive damages. Pet. App.
43a-Sia. However, it did not hold that evidence of compliance
with federal standards or of engineering disputes was irrelevant
or inadmissible. Indeed, Ford was free to present evidence in
the trial court concerning its claimed regulatory compliance and
the views of its experts as to the design and safety issues pertinent
to this case, and it did so. See, e.g., 2 AA 528-35; 10 AA 2618-
56; 1O RT 1723-36; 28 RT 5145, 5179 (regulatory compliance);
28 RT 5152-54, 5164-67; 3 AA 716-19, 756 (expert
disagreement); cf, e.g., 3 AA 605-717 (NHTSA’s decision not
to regulate stability). Similarly, the trial court did not preclude
Ford’s counsel from arguing to the jury that it should not award
punitive damages, or should lessen their amount, because Ford
(allegedly) complied with regulations and/or because some
experts support its design decisions. Ford’s vagueness argument
thus rests on misstatements of what the California trial court
did and what the Court of Appeal held.

Moreover, Ford concedes that “the California punitive
damage standard is theoretically capable of rational application ,
in many circumstances” (Pet. 12) and that it “is making an as-
applied challenge, and is not arguing that the statute is
unconstitutional on its face.” /d. at 13 n.2. This concession
necessarily narrows the range of cases to which the principles
Ford advocates might be applied, thereby diminishing the
importance of review in this case.

Even as applied to products liability cases, Ford’s vagueness
argument is unworthy of review. That argument is premised on
two propositions: (1) that “California’s standards for determining
strict liability for defective product designs are exceedingly
vague and subjective” (Pet. 11-12); and (2) that an automobile
manufacturer cannot “determine, in advance, if its design

12

decisions . . . would subject it to punishment in California, and
[is left] with no guidance as it makes day-to-day design decisions
about what might subject it to punitive damages.” Pet. 14. The
first of these propositions is not properly before the Court. Ford’s
Petition challenges only the award of punitive damages. Having
chosen not to contest its liability for compensatory damages
under California tort law, Ford has no standing to complain
that California’s standards for imposing such liability are
unconstitutionally vague. See Village of Hoffman Estates v.
Flipside Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)
(because “‘[vJagueness challenges to statutes which do not
involve First Amendment freedoms must be examined in light
of the facts of the case at hand,’ ‘[o]ne to whose conduct a statute
clearly applies may not successfully challenge it for vagueness”)
(citations omitted).

The same principle precludes Ford from arguing that
California’s punitive damages standards are unconstitutionally
vague as applied to it. The evidence established that Ford
knowingly produced and sold an automobile that (1) would roll
over in normal driving conditions and on dry pavement if a
driver swerved to avoid an obstacle, (2) had a roof so weak that
it would collapse during a rollover and (3) could easily have
been made more stable and given a stronger roof through well-
known, available and cost-effective design changes. Pet. App.
43a. Yet Ford declined for profit-maximization reasons to make
feasible and affordable design corrections urged by its own
engineers. Jd. at 10a, 12a-13a. Thus, however California punitive
damages law may be applied in other cases, Ford unquestionably
had notice that its conduct could result in punitive damages
liability. Indeed, courts in California, among other states, had
instructed Ford on that very subject before. See Hasson v. Ford
Motor Co., 32 Cal. 3d 388 (1982) (Continental); Romo v. Ford
Motor Co., 113 Cal. App. 4th 738 (2003) (Bronco); Grimshaw
v. Ford Motor Co., 119 Cal. App. 3d 757 (1981) (Pinto);
see also, e.g., Ford Motor Co. v. Ammerman, 705 N.E.2d 539
(ind. Ct. App. 1999) (Bronco II).

13

In any event, Ford’s suggestion that California’s punitive
damages standards are unconstitutionally vague is meritless.
Ford cites a great many of this Court’s vagueness opinions from
1915 to 1966 involving dissimilar statutes applied in dissimilar
contexts. Pet. 15-18. But its reliance on these dissimilar cases
ignores the principle that “rules against vagueness are not
‘mechanically applied,’ but depend in their application, on ‘the
nature of the enactment.’” Barclays Bank, PLC v. Franchise
Tax Bd., 512 U.S. 298, 316 (1994) (citation omitted).
Consequently, the relevant vagueness cases—which Ford
altogether ignores—are this Court’s two much more recent
decisions rejecting similar vagueness challenges to punitive
damages laws far less specific than California’s. See 7XO Prod.
Corp. v. Alliance Res. Corp., 509 U.S. 443, 465-66 (1993)
(plurality opinion) (“the notice component of the Due Process
Clause is satisfied if prior law fairly indicated that a punitive
damages award might be imposed in response to egregiously
tortious conduct”); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S.
1, 19-20, 24 n.12 (1991).’ (Ford’s statement (Supp. Br. 2) that
“{t]his Court has never directly addressed the due process
constraints on the imposition of punitive damages liability in
the first instance” is obviously incorrect.) Indeed, Ford cites no
case holding a punitive damages statute unconstitutional, and
makes no mention of decisions rejecting similar vagueness
challenges to punitive damages laws. See, e.g., White v. Ford
Motor Co., 312 F.3d 998, 1026 (9th Cir. 2002); Dunn v. HOVIC,
1 F.3d 1371, 1381-82 (3d Cir. 1993) (en banc).

In comparison to the punitive damages statutes upheld in
TXO and Haslip, the California statute gives prospective
defendants ample notice. It requires “clear and convincing

8. Justice O’Connor dissented in Haslip, arguing that Alabama’s
punitive damages law—which was implemented by an instruction telling
the jury that “[iJmposition of punitive damages is entirely discretionary
with the jury, that mcans you don’t have to award it unless this jury
feels that you should do so” (see 499 U.S. at 6 n.1)—was void for
vagueness. /d. at 42-53. No other member of the Court joincd that dissent.

14

evidence that the defendant has been guilty of oppression, fraud,
or malice.” Cat. Civ. Cope §3294(a). It defines “malice” as
“conduct which is intended by the defendant to cause injury to
the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights
or safety of others.” Jd. §3294(c)(1). Moreover, this jury was
instructed (in accordance with California precedent) that
“*djespicable conduct’ is conduct that is so mean, vile, base or
contemptible that it would be looked down on and despised by
reasonable people.” 35 RT 8281.’ The California Supreme Court
has explained that the requirement to show “despicable” conduct
“represent[s] a new substantive limitation on punitive damage
awards.” Coll. Hosp., Inc. v. Superior Ct., 8 Cal. 4th 704, 725
(1994).

These standards go far beyond those previously upheld by
this Court, and ensure that punitive damages are imposed only
on defendants whose conduct merits punishment. Accordingly,
they are not unconstitutionally vague, especially as applied to
Ford’s reprehensible conduct here.

Ill. THE OPINION’S ANALYSIS OF REPREHENSIBIL-
ITY PRESENTS NO ISSUE MERITING CERTIO-
RARI.

Ford contends that the Court of Appeal violated the federal
Constitution because, in assessing the reprehensibility of Ford’s
conduct, it “gave no weight to the many objective factors, such
as industry custom, federal regulatory judgments, and reasonable
grounds for disagreement, that significantly mitigate against any

9. Likewise, in the trial’s second phase, which decided the amount
of punitive damages, the court also gave standard California instructions
far more detailed than the one upheld in Has/ip. Among other things, it
told the jury that “[{i]n deciding the amount of punitive damages, if any,
you should consider . . . A, how reprehensible was the defendant’s
conduct; B, is there a reasonable relationship between the amount of
punitive damages and Benetta Wilson’s and Barry Wilson’s harm; C, in
view of the defendant’s financial condition, what amount is necessary
to punish it and discourage future wrongful conduct.” 41 RT 8527.

15

finding of reprehensibility.” Pet. 24. As already noted, this
contention was not properly presented below, and challenges a
ruling that rests in part on an adequate and independent non-
federal ground. See pp. 5-8, supra.

In any event, Ford’s argument presents no issue meriting
certiorari. Ford cites no case holding that either factor, if
established, is an absolute bar to punitive damages. And to the
extent its argument, toned down from its California submission,
is merely that compliance with applicable regulations or
reasonable disagreement among experts are factors to be taken
into account in determining the degree of reprehensibility, and
therefore the maximum constitutionally permissible ratio
between punitive and compensatory damages, neither the Court
of Appeal nor Plaintiffs disagree. As noted above, Ford was
free to argue, in both the trial court and the Court of Appeal,
that compliance with regulations and the existence of a
reasonable disagreement between experts were reasons not to
award punitive damages at all, or to reduce the amount of the
award. See pp. 6, 11, supra. There is no reason to think these
arguments fell on deaf ears: after all, the trial judge reduced the
punitive damages award from $246 million to $75 million, and
the Court of Appeal reduced it further, to $55 million.

The reason why Ford’s arguments for mitigation didn’t
reduce the punitive damages further still was that those
arguments suffered from a weak factual basis. As the Court of
Appeal pointed out, “there are no federal standards for stability
of vehicles, one ground upon which Ford’s liability for punitive
damages is based.” Pet. App. 49a-50a; see also Watkins v. Ford
Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). Nor are there
any federal regulatory standards regarding roof-strength
warnings, another ground for liability.'° And, as the Court of

10. Although one non-preemptive federal regulation does govern
roof structure, there was a serious factual dispute at trial, never resolved
by a jury finding, as to whether Ford had complied with it. See 12 RT
2136-37, 2141-42 and 10 AA 2621 (evidence that Ford only passed

(Cont'd)

16

Appeal also emphasized, federal automobile safety regulations
expressly do not preempt state law liability for defective vehicles
(49 U.S.C. §30103(e)) and thus do not “‘affect the rights of
parties under common law particularly those related to warranty
... and tort liability.’” Pet. App. at 48a-49a (emphasis omitted)
(quoting H.R. Rep. No. 89-1776, at 24 (1966)).

As for the claimed disagreement among experts, the Court
of Appeal found that Ford engineers had proposed design
changes that would have improved the Explorer’s stability, but
that management rejected them because implementation “would
have delayed the vehicle’s release date and impacted profits.”
Pet. App. 9a-10a, 12a. Ford presented no evidence that its
management had relied on any recommendations by Ford safety
engineers against the rejected safety proposals. Nor did it present
any evidence that its management had studied any debate among
outside safety experts. Nothing in the record suggests that Ford’s
management made anything but a pure business decision—not
one based on that management’s good-faith, reasonable review
of an engineering disagreement.

Even if these factors gave some support to Ford’s argument
for mitigation of the punitive damages award, there would be
no reason for this Court to review whether the California courts
weighed those factors correctly. In the end, the Court of Appeal
reduced the punitive damages beyond the trial court’s reduction,
resulting in a ratio of 2:1. Nothing in its analysis contradicts the
standards established in State Farm or either of the decisions
claimed by Ford to be in conflict with the decision in this case.

The opinion here is consistent with (and in critical respects
distinguishable from) Clark v. Chrysler Corp., 436 F.3d 594,
602 (6th Cir. 2006). The panel majority in Clark did reduce a
$3 million punitive damages award to roughly $470,000, based
(Cont’d)

FMVSS 216 roof crush test by improper means); 12 RT 1980, 2131-32

(evidence that many Explorers on the road have roofs tou weak to pass
test).

17

in part on the existence of a good-faith dispute over the need to
test the strength of the failed part at issue. 436 F.3d at 602; cf.
id. at 614 (Moore, J., dissenting in part) (finding award not
excessive). But the Clark majority found that, in light of the
scientific dispute and other evidence, the maximum
constitutionally permissible ratio of punitive to compensatory
damages was 2:1 (id. at 600); the dissenting judge found the
original ratio of 13:1 not excessive. Id. at 614 (Moore, J.,
dissenting in part). Clark hardly supports an attack on an award
bearing the very ratio it upheld.

Moreover, in Clark “there [was] no evidence that a boxed-
in B-pillar [i.e., plaintiff's alternative design] would have
prevented the harm suffered by Mr. Clark.” Jd. at 602.
Accordingly, Clark’s experts “did not conduct any tests to see
whether another B-pillar would have prevented (the accident]
under similar circumstances.” /d. In contrast, there was ample
evidence in the present case that greater stability or a stronger
roof or a warning about the roof’s weakness would have
prevented the injuries suffered by Mrs. Wilson. Pet. App. 8a-
9a, 13a, 14a; 9 RT 1391-92; 19 RT 3420-23; 20 RT 3543; 12
RT 2159; 15 RT 2642-43, 2668-69; 25 RT 4495-96; 26 RT 4657.
In particular, Plaintiffs’ expert based his testimony that Plaintiffs’
proposed alternative designs would have prevented the harm
suffered by the Wilsons in significant part on extensive
independent testing. See note 1, supra (citing expert testimony,
and documentation and videos of testing, presented to jury).
Moreover, the Clark majority expressly found that Chrysler was
not a recidivist: “In this case, there is no evidence that Chrysler
knew that its use of the unboxed B-pillar could cause Mr. Clark’s
injury. Indeed, there is no evidence of earlier, similar accidents
that might have alerted Chrysler to the problem.” 436 F.3d at
604-05 (footnote omitted), In this case there was ample evidence
of Ford’s recidivism: the contrast between Chrysler’s lack of
notice in Clark, and the trail of “earlier, similar accidents”

~~

ri

18

involving the Bronco II that had alerted Ford to the danger of
instability,"' could not be starker.

Ford also contends that the decision below conflicts with
Clark and Baker v. ExxonMobil Corp. (In re: Exxon Valdez),
472 F.3d 600 (9th Cir. 2006), because the Court of Appeal said
that automobile consumers “were vulnerable as they would not
understand vehicle design, development and manufacture, and
would rely on Ford to inform them of risks as they made
purchasing decisions.” Pet. App. 56a. There is no conflict. Clark
held that Chrysler's wealth could not be considered in
determining the vulnerability of the plaintiff. 436 F.3d at 604.
The Court of Appeal made no such error in this case.'? In Exxon
Valdez, there was no “dispute that subsistence fisherman were
financially vulnerable” (472 F.3d at 616-17); the Ninth Circuit
merely held that Exxon had “not intentionally target{ed]
subsistence fisherman.” /d. (emphasis added). Neither Clark
nor Exxon Valdez hinted, let alone held, that courts analyzing
reprehensibility must ignore “vulnerability” of an injured party
that is due to a lack of specialized knowledge on an esoteric
scientific topic like automobile safety engineering, or an inability
to obtain adequate information on that issue. Ford cites no case
so holding. There is no conflict for this Court to resolve.

Finally, Ford claims that, because it assertedly won eleven
Explorer cases before the trial of this case, the Court of Appeal

11. See Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 545-49,
556-57, 562 (Ind. Ct. App. 1999); Clay v. Ford Motor Co., 215 F.3d _
663, 665 (6th Cir. 2000); Denny v. Ford Motor Co., 662 N.E.2d 730,
733 (N.Y. 1995); see also 9 AA 2527-53, 2565-82; 5 RA 1273 (evidence
Ford knew that roof crush causes injury in rollovers).

12. Ford misrepresents the opinion below as having said that “*[t]he
defendant’s financial condition is an essential factor in fixing an
amount’” of punitive damages (Pct. 25) without so much as an ellipsis
to indicate that the sentence continued as follows: “. . . that is sufficient
to serve these goals without cxceeding the necessary level of
punishment.” Pet. App. 51a. Accordingly, the Court of Appeal did not
endorse use of the defendant’s wealth in evaluating the plaintiff's
vulnerability—the trial court’s error in Clark.

19

erred in finding its conduct “repeated and not an isolated
incident.” Pet. 27 (citing Pet. App. 56a-57a). The trial court
refused to allow Ford to use prior verdicts in its favor (41 RT
8516, 8534-37), and Ford did not challenge this ruling on appeal
or, for that matter, in its Petition for Review. (Significantly, two
of the verdicts have since been reversed, with directions to
exclude on retrial the comparative rollover statistics that the
trial and appellate court excluded in the present case.
See Jaramillo v. Ford Motor Co., 116 Fed. Appx. 76, 78-79
(9th Cir. 2004); Hockensmith v. Ford Motor Co., 116 Fed. Appx.
244 (11th Cir, 2004)). In any event, Ford’s premise—that it was
punished for “repeated” sales of Ford Explorers to other
persons—is false. See Part IV, infra. That juries in other cases,
presented with different witnesses and evidence by different
lawyers, came to different conclusions than the jury in this case
has no bearing on whether the conduct Plaintiffs proved in this
case was reprehensible.

IV. NOTHING IN PHILIP MORRIS SUPPORTS FORD’S
PETITION.

Ford asked the Court to hold the Petition until it announced
a decision in Philip Morris USA v. Williams, _ U.S. _, 127
S. Ct. 1057 (2007). The Court announced that decision on
February 20. Ford then filed its Supplemental Brief. However,
nothing in Philip Morris supports any argument in the Petition
or warrants a remand.

A. Ford Did Not Preserve Any Issue Affected By Philip
Morris, Precluding A Grant And Remand.

1. Ford Did Not Preserve The Substantive Issue
Addressed In Philip Morris.

In its Supplemental Brief, Ford urges the Court to grant
certiorari in order to remand for reconsideration in light of Philip
Morris. But the Court has power to grant, vacate and remand
only if Ford’s petition satisfies the jurisdictional requirements
of 28 U.S.C. §1257(a).

Pane gga

20

As shown in Part I, at pp. 8-10, supra, it does not: Ford did
not properly preserve the issue that would be the subject of a
grant, vacate and remand order. Ford’s complaint is that the
Court of Appeal improperly punished it for mass-marketing
Explorers and Bronco IIs to third parties. Because Ford did not
adequately present this issue as one of federal law, or raise it in
a petition for rehearing as California law required, the Court
lacks jurisdiction of it.

2. Ford Did Not Preserve An Instructional Error
Claim.

An issue raised (but not resolved) in Philip Morris was
whether the trial court erred in refusing to instruct the jury that
it could “consider the extent of harm suffered by others in
determining .. . [the] reasonable relationship” between plaintiff s
harm and punitive damages, but could not “punish the defendant
for the impact of its alleged misconduct on other persons.”
Philip Morris, 127 S. Ct. at 1061. As the Court noted, the
instruction Philip Morris had proposed “distinguishe[d] between
using harm to others as part of the ‘reasonable relationship’
equation (which it would allow) and using it directly as a basis
for punishment” (which it would not). /d. at 1064.

Ford proposed no such instruction. Its proposal, which the
trial court rejected, was erroneous and one-sided:

In determining the appropriate amount of
punitive damages, if any, in this case, you may
consider only the harm to the plaintiffs. Any
individuals other than the plaintiffs who might claim
to have been harmed by Ford have the right to bring
their own lawsuit seeking damages for any alleged
injuries they may have incurred. Therefore, if you
decide to award any punitive damages, your award
must be limited to redressing the injuries incurred
only by the plaintiffs in this lawsuit. (Pet. App. 103a)

Unlike Philip Morris’s instruction, Ford’s would have
barred the jury from considering Ford’s overall conduct in

21

determining reprehensibility. Because that instruction did not
completely state the governing legal principles, the trial court
properly rejected it under California law. E.g., Fibreboard Paper
Prods. Corp. v. E. Bay Union of Machinists, 227 Cal. App. 2d
675, 716-17 (1964) (judge has no duty to rewrite incorrect
instructions). The refusal thus rests on an adequate and
independent state ground.

In any event, no instructional error issue has been preserved.
Before the Court of Appeal and in its Petition for Review, Ford
did not claim—even on state law grounds and certainly not on
federal constitutional grounds—that the trial court incorrectly
instructed the jury or erred by refusing to give the foregoing ~
instruction. See Resp. App. 2a-4a, 8a-9a.

B. The Court of Appeal Did Not Punish Ford For
Injuring Occupants Of Other Ford Vehicles.

Ford claims that the Court of Appeal punished it “for its
sales of the Explorer—as well as the Bronco II-—to third parties
not before the court.” Pet. 2-3. Even if that argument had been
properly preserved, it would still rest on a misreading of the
Opinion. In fact, the Court of Appeal evaluated the punitive
damages award in prescient accord with the principles this Court
later enunciated in Philip Morris.

1. The Principles Set Forth In Philip Morris.

Philip Morris draws a line between “show[ing] harm to
others in order to demonstrate reprehensibility” and “punish[ing]
a defendant directly on account of harms it is alleged to have
visited on nonparties.” 127 S. Ct. at 1064. While barring the
latter, the Court affirmed the propriety of the former:

Evidence of actual harm to nonparties can help to
show that the conduct that harmed the plaintiff also
posed a substantial risk of harm to the general public,
and so was particularly reprehensible . . . . (/d.)

The Court later reiterated its “recogni{tion] that conduct that
risks harm to many is likely more reprehensible than conduct
that risks harm to only a few.” /d. at 1065.

22

After noting the heightened reprehensibility of acts that
threaten harm to many victims, the Court further invoked the
principle, derived from criminal recidivism cases, that an act is
more reprehensible if it is the latest in a string of similar
misdeeds. Jd. (describing Witte v. United States, 515 U.S. 389,
400 (1995), as holding that “recidivism statutes taking into
account a criminal defendant’s other misconduct do not impose
an additional penalty for the earlier crimes, but . . . a stiffened
penalty for the latest crime, which 1s considered to be an
aggravated offense because a repetitive one”) (citation and
internal quotation marks omitted). In short, Philip Morris affirms
that a manufacturer’s long history of disregard for public safety
can be considered in evaluating the “reprehensibility” of its
conduct toward the plaintiff.

2. The Opinion Accords With Philip Morris.

Although we discuss below Ford’s mistaken assertions that
the trial transcript includes evidence or closing arguments
inconsistent with the above principles (see Part IV(B)(3), infra),
the crucial point is that the Opinion adheres to those principles.
What most matters to the Court’s exercise of its certiorari
jurisdiction, after all, is not passages in a trial transcript but the
text of the published appellate opinion allegedly creating
confusion or conflict in the law.

That text in no way suggests that Ford was or should be
punished for selling Explorers (or Bronco IIs) to multiple buyers.
The passages of which Ford complains are all in a section
of the Opinion headed “Reprehensibility of conduct.”
Pet. App. 55a. They form part of the Court’s analysis of the
“reprehensibility” of Ford’s conduct—an analysis concluding
that, because “the degree of Ford’s reprehensibility is . . . high,”
a “two-to-one ratio is warranted.” Pet. App. 59a. There is no
dispute that this is how the Court of Appeal used Ford’s past
conduct: Ford’s Petition for Review acknowledged that the court
had analyzed its past conduct as relevant to reprehensibility.
See p. 9, supra (quoting Resp. App. 14a).

23

As part of that reprehensibility analysis, the Opinion notes
that “Ford had a pattern of deficient safety design that was
ignored in favor of increased financial returns . . . [as] evidenced
by Ford’s refusal to follow its engineers’ recommendations to
improve the stability of the Explorer.” Pet. App. 57a. This
conclusion had nothing to do with punishing Ford for injuries
suffered by other Explorer occupants. What made Ford’s design
and marketing of the Explorer that injured the Wilsons
reprehensible were (1) Ford’s similar disregard of public safety
in designing the Bronco II; (2) its decision to carry over, into
the Explorer, design features that made the Bronco II unstable
and unsafe, despite its own engineers’ recommendations to make
the design safer; (3) its disregard of prior product liability
judgments and punitive damage awards regarding the Bronco
II when it designed and produced the successor vehicle that
injured the Wilsons; and (4) its repeated failure to correct the
original Explorer’s stability and roof strength defects in
successive models, even though it was feasible and cost-effective
to do so, because Ford favored maximizing financial returns
and meeting production schedules over ensuring the safety of
Explorer occupants. See Pet. App. 9a-10a, 12a-13a, 43a-44a,
56a-57a.

The reprehensibility of Ford’s failure to correct the Bronco
Il’s safety defects when it produced the Explorer is underscored
by a string of decisions finding the Bronco II to be dangerous
and defective, and often imposing significant punitive damages.
See, e.g., Watkins, 190 F.3d at 1216-18; Ammerman, 705 N.E.2d
at 556-57, 562. Yet Ford produced a new-generation vehicle,
rebranding it “the Explorer,” without correcting its predecessor’s
fundamental stability defects. To consider, as part of a
reprehensibility analysis, a manufacturer’s wrongful acts in
designing a related series of defective products over an extended
period differs entirely from punishing that manufacturer for the
injuries caused to non-parties because it mass-produced a single
product, or for the injuries caused to non-parties by the prior,

om in date cited

24

related products. See Philip Morris, 127 8. Ct. at 1065; Witte,
515 U.S. at 400.

In sum, the Opinion does not punish Ford for the injuries
that the Explorer’s design defects have caused non-parties.
Instead, it bases its calculation of punitive damages on the $27.6
million in compensatory damages received by the Wilsons. That
base, by definition, includes compensation only for their injuries;
it includes no dollars intended to compensate non-parties (or
punish Ford) for such persons’ injuries. The Court of Appeal
did then consider Ford’s recidivism in determining that Ford’s
behavior was sufficiently reprehensible to warrant an award of
punitive damages equal to twice the compensatory damages
base. That calculus was entirely consistent with Philip Morris.

3. The Opinion Does Not Allow Improper Uses
Of Evidence Or Jury Arguments Of Any Sort
Rejected In Philip Morris.

Trying to shoehorn this case into the analysis in Philip
Morris, Ford contends that “‘the sort of evidence that was
introduced at trial [and] the kinds of argument the plaintiff made
to the jury’” created an undue risk that the jury punished Ford
for harming third persons. Supp. Br. 10 (quoting Philip Morris,
127 S. Ct. at 1065). Neither part of that contention is correct (or
properly preserved; see Part I, supra).

a. Plaintiffs Did Not Offer Improper Evidence
Of Bronco II Injuries.

Ford did complain in the Court of Appeal, as in its
Supplemental Brief, about the admission of evidence of the
Bronco II’s instability. Supp. Br. 4-6. However, Ford does not
cite even a shred of evidence submitted to the jury of injuries
suffered by third parties in Bronco Ils—and there wasn’t any.
Cf. id.; Pet. 29 (citing only (1) evidence of Bronco II instability

13. The trial court of course instructed the jury that arguments of
counsel are not evidence (35 RT 8155; 41 RT 8505)—an instruction
(Cont'd)

AEA TR LUE DNL, SN

25

evidence of the Bronco II’s instability, and Ford’s knowledge
thereof, in order to show the history of the Explorer’s
development (e.g., Ford documents assessing the Explorer’s
stability in light of the Bronco II’s known deficiencies) and to
show Ford’s notice of the problem and of the need to fix it. Pet.
App. 17a-20a. The notice issue concerned Ford’s liability for
punitive damages in the first place, and the reprehensibility of
its conduct—not the amount of harm it had caused.

There is a qualitative difference between evidence that a
manufacturer knew that a predecessor product had the same
defect as the product at issue, on the one hand, and evidence of
the actual harm that the past defect did to non-parties, on the
other. If Plaintiffs had offered the latter sort of evidence—
é.g., expert testimony detailing the number of Bronco II roll-
overs and calculating the amount of harm they had caused to
non-parties—Ford would have had something to complain
about. But as Ford’s lack of record citations reveals, Plaintiffs
did no such thing.

b. Plaintiffs Made No Improper Arguments
About Bronco II Injuries.

Nor did Plaintiffs’ counsel urge the jury to punish Ford for
the harm suffered by Bronco II victims. Ford block-quotes two
passages in Plaintiffs’ closing argument mentioning the Bronco
II. Supp. Br. 5. Ford contends that these passages fall on the
wrong side of the “use to measure reprehensibility”/"use to
punish for non-party injuries” line, but that is false. Here is the
key passage:

Ford is aware by 1989 that many people are killed
or seriously injured in [Bronco II] rollovers. Right
in this time period, and they are going out to market
with this new launch [i.e., the Explorer] with Job 1

(Cont'd)

that California law presumes the jury to have followed. See, e.g., People
v. Stitely, 35 Cal. 4th 514, 559, cert. denied, 126 S. Ct. 164 (2005);
Karlsson v. Ford Motor Co., 140 Cal. App. 4th 1202, 1229 (2006).

26

with the engineers telling them [of] the same
problems. (35 RT 8173-74 (quoted at Supp. Br. 5))

Counsel could not have made the point more clearly: he
alluded to people hurt in Bronco JI rollovers not to include those
third parties’ injuries in the pool of harm on which the jury
would base Ford’s punishment, but only to show that “Ford
[was] aware” of the instability problem, yet went “to market”
with the Explorer “with the engineers telling them [that] the
same problems” remained. That awareness enhances the
reprehensibility of Ford’s conduct. However, the basis for
calculating the amount of Ford’s punishment—i.e., the amount
of harm to be multiplied by the reprehensibility factor—was
limited to the harm that the Wilsons suffered as a result of those
“same problems.”

While the other block-quoted passage does refer to the
Bronco II having killed or injured many people (35 RT 8172),
one must view that brief comment in context-—i.e., as promptly
followed by the “new launch . .. same problems” passage quoted
above in this brief. The latter passage tied together counsel’s
points about the Bronco II into a single description of how Ford’s
pattern of disregard for the danger of instability began with the
Bronco II and carried over—along with that vehicle’s basic
design flaws—to the original Explorer and, ultimately, the 1997
Explorer that injured the Wilsons. The persistence of that
disregard for safety increases the reprehensibility of the conduct
that injured the Wilsons, but it was only for their injury that
Plaintiffs asked the jury to punish Ford. The Bronco II evidence
merely helped show that that injury was no unforeseen mishap,
but the latest in a string of eminently foreseeable results of
conscious choices. ‘i

c. The Opinion Does Not Endorse Improper
Arguments About Non-Party Explorer

Injuries.
After discussing the Bronco II, the Supplemental Brief
quotes passages in Plaintiffs’ closing argument allegedly seeking
punishment for non-party injuries caused by other Explorers.

27

Supp. Br. 6-7.'* The ¢ » «ges do no such thing, and would not
warrant a grant of certic.uri even if they did.

(1) Other Explorer Cases Are Outside The
Record.

Preliminarily, Ford complains that these alleged arguments
were unfair because “Ford had won the prior eleven cases
involving these defect claims, and there was no actual evidence
of other injuries, their proximate causes, severity, or how this
alleged threat to other drivers compared to that of other SUVs.”
Id. at 6.

This argument goes outside the record and is therefore
improper. There is no evidence in the trial record of any of those
alleged eleven prior verdicts.’ A fortiori, Ford did not introduce
“actual evidence of [the] other injuries, their proximate causes,
[or] severity™~in the prior cases or otherwise lay a foundation in
the record that the accidents or injuries made those cases
substantially similar to this case."

(2) The Quoted Arguments Are Not
Improper.

Ford’s arguments must therefore rest on the four passages
of argument it block-quotes. See Supp. Br. 7. But those passages
will not bear the weight. The first and fourth in no way mention
other Explorer rollover accidents, let alone injuries suffered by

14. Notably, Ford does not claim that Plaintiffs put before the jury
improper evidence of non-party injuries suffered in Explorer rollovers.

15. Ford proffered such evidence at the time of Phase II closing
arguments (41 RT 8534-37); the trial court excluded it (id.); and Ford
did not challenge the exclusion on appeal.

16. While Plaintiffs do not expect that the Court will consider
alleged facts lacking a valid foundation in the record—let alone the
alleged “additional victories” after trial mentioned in Ford’s Petition
(Pet. 27}—-we note that, if the Court expanded its inquiry beyond the
record, it also would find a comparable number of other Explorer cases
involving instability and/or roof crush in which the plaintiffs have
prevailed.

28

_non-parties in such accidents. They merely note the potential
harm to other drivers caused by Ford’s conduct—the very type
of argument this Court approved when it noted in Philip Morris
that “conduct that risks harm to many is likely more
reprehensible than conduct that risks harm to only a few.” 127
S. Ct. at 1065.

The second passage does note “[h]jundreds of Explorer
rollover cases” but vot in order to make the injuries suffered in
those accidents the base for calculating punitive damages. Rather
than mention injuries—let alone suggest their monetary value—
counsel immediately explained the relevance of the long line of
cases: it shows “Ford management’s willingness to accept this
risk from the Bronco II through the [1997 Explorer].” 35 RT
8179 (quoted at Supp. Br. 7). It shows, in other words, that
Ford’s conduct toward the Wilsons was reprehensible because
it was the latest instance in a long string of similar, uncorrected
misconduct. See Philip Morris, 127 S. Ct. at 1065 (approving
use in punitive damages context of principle that recidivist’s
“latest crime .. . is considered to be an aggravated offense
because a repetitive one’’) (citations and internal quotation marks
omitted).

Similarly, the third passage notes that Mrs. Wilson’s
accident was not “a single isolated incident,” as there were
“others in California.” But again, counsel never mentioned or
alluded to injuries suffered in those accidents or invoked the
suffering of non-parties. Instead, he used the fact that this
accident was one in a long line to show the conscious, willful
nature of Ford’s longstanding disregard of the proven risk posed
by its conduct.

(3) Ford Invited Any Error.
Even if the arguments of counsel raised a substantial federal

question, Ford could not complain about them, for they were

addressed to a legal standard given the jury in an instruction
Ford proposed (41 RT 8444-50, 8458, 8475-77):

29

In determining the amount of punitive damages,
if any, that 1s necessary to achieve the proper level
of punishment and deterrence, you may consider only
Ford's wrongful conduct, if any, that has had an ~
adverse impact on the citizens of California.
Accordingly, you may not award any punitive
damages for the purpose of punishing Ford for the
sale of vehicles in other states for any injuries that
may have occurred in other states, or for the purpose
of changing Ford’s conduct in other states. (41 RT
8528 (emphasis added))

Under California law, when a court instructs a jury on the law,
it frames the scope of permissible closing argument. See Gotcher
v. Metcalf, 6 Cal. App. 3d 96, 100 (1970); see, e.g., Neumann v.
Bishop, 59 Cal. App. 3d 451, 479-80 (1976); cf CaL. Cope Civ.
Proc. §607a (court must inform counsel before closing
arguments of instructions it will give). Needless to say, a party
cannot complain of an instruction that it proposed itself. People
v. Wader, 5 Cal. 4th 610, 657-58 (1993). Counsel’s arguments
simply pointed out to the jury that many other Ford Explorers
in California have the same defects as the Wilsons’, and may
also have “an adverse impact on the citizens of California.”
Even if such argument crossed a line drawn by Philip Morris, it
was at Ford’s invitation that Plaintiffs and the Court crossed
that line.

30
CONCLUSION
For these reasons, the Petition should be denied.

Respectfully submitted,

Dennis A. SCHOVILLE JEROME B. FALk, JR.

Louts G. ARNELL Counsel of Record

James S. IAGMIN STEVEN L. MAYER

SCHOVILLE & ARNELL, LLP KEITH D. KESSLER

1230 Columbia Street HowarD Rice NEMEROVSKI

Suite 800 CANADY FALK & RABKIN

San Diego, CA 92101 A PROFESSIONAL CORPORATION

(619) 232-9901 Three Embarcadero Center
7th Floor

San Francisco, CA 94111
(415) 434-1600

Attorneys for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2116%3A03. Public record. Not legal advice.