Amicus Curiae Brief — Ford Motor Motor Co. v. Buell-Wilson (No. 09-297)

Supteme Court, U,8.

FILED

OCT 5 - 2009 |

No. 09-297 OFFICE OF THE Gira

Jn the Supreme Court of the Gnited States

FORD MOTOR COMPANY,

Petitioner.

V.

BENETTA BUELL-WILSON, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to

The California Court of Appeal

BRIEF OF THE PRODUCT LIABILITY

ADVISORY COUNCIL, INC. AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

HUGH F. YOUNG, JR. EVAN M. TAGER

The Product Liability Counsel of Record

Adutisory Council, Inc. BRIAN D. NETTER

1850 Centennial Park Mayer Brown LLP

Drive, Suite 510 1999 K Street, NW

Reston, VA 20191 Washington, DC 20006

(703) 264-5300 (202) 263-3000

Counsel for Amicus Curtae

The Product Liability Advisory Council, Inc.

l

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

ae ea ae ease ease eiaiidcesaneesne vsvess 3

A. The Product-Design Process Necessarily

Requires Manufacturers To Make

Complex Cost-Benefit Decisions About

Proposed Design Features

. The Imposition Of Punitive Liability In

This Case Will Have An Irrational And

Dangerous Impact On The Product-

Sc aniewendweiucrun 6

’. This Court Should Grant Review To

Confirm That The Due Process Clause

Prohibits States From Imposing

Punitive Damages On A Product

Manufacturer For Conduct That

Reasonable Persons Could Have

Concluded Was Lawl. ...............cccccccccccccccceee 7

eared a pein in ipa ted iveiisershetevencnsssaens 13

APPENDIX A: Corporate Members of the

Product Liability Advisory Council .............0..0..0.00... la

ll

TABLE OF AUTHORITIES

Page(s)

CASES

BMW of N. Am., Inc. v. Gore,

517 U.S, Beara c lice sevccssscce... 2,8

Burke v. Deere & Co.,

Oe yh 6 5 Oe 10

Carroll v. Otis Elevator Co.,

896 F.2d 210 (7th Cir. 1990).......cccccccecccecceceeeeeees 13

Colautti v. Franklin,

439 UG. Bras vrccesevnnssnsce.0.0.. ll

Connally v. Gen. Constr. Co.,

ZEO UB, Be aie cechcedscsssscesee. 1]

Guaccio v. Pennsylvania,

Bee UU oe cieveresecesces 8

Hillrichs v. Auco Corp.,

14 NW. 2 Bee re Boo ncce cs cece esses ccsceceeese 10

Lankford v. Idaho,

5OO UB. Fe a vavisnicsvsscrcosccecee. 8

Loitz v. Remington Arms Co..,

S63 N.EE.2e ae oars cn scessscsccevecescces00e 10

Masaki v. Gen. Motors Corp..,

TBO PD Ge Cee ac ccccnssescccssececccece 9

Mercer v. Pittway Corp.,

G16 N.W.2el Ge Gem Be voncncnsccneeoesces0....2...0.. LO

Owens-Corning Fiberglas Corp. v. Garrett,

GB2 A.D TGs Ge erie casnvecacovsnece.s:........ 10

Pac. Mut. Life Ins. Co. v. Haslip,

199 USS. 0 ear cecsuncnececesses. 2,9

Philip Morris USA v. Williams,

549 U.S. eee ee iiciiscssenvessecscces 0, O

1

TABLE OF AUTHORITIES—continued

Page(s)

Satcher v. Honda Motor Co.,

OS Ft SOLE COC Ce. FOGG). vvcscccsecscssssecevesccvneasss 10

State Farm Mut. Auto. Ins. Co. v. Campbell,

Fe lec Me i asnisnecasonecnccsechesonseecssknasencesants 2,8

Sw. Tel. & Tel. Co. v. Danaher,

238 U.S. 482 (1915)....... ee ee oe 1]

MISCELLANEOUS

go ace 4 WE Eon fae Ey 8 ES. : Se ne 6

Steven Garber, Punitive Damages and Deter-

rence of Effictency-Promoting Analysis: A

Problem Without a Solution?, 52 STAN. L.

Wee RE CIEE a wixciacesiadecier scacrsmeen eee binestiss 9

David G. Owen, Problems in Assessing Puni-

tiue Damages Against Manufacturers of De-

fective Products, 49 U. CHI. L. REV. 1 (1982) LO, 1:

Aaron D. Twerski, Punitive Damages: Through

the Five Prisms, 39 VILL. L. REV. 353 (1994)...... 12

W. Kip Viscusi, Jurors, Judges, and the Mi-

streatment of Risk by the Courts, 30 J. LE-

CSAS STUHR, TF a hc koko a ee 13

ww

BRIEF OF THE PRODUCT LIABILITY ADVI-

SORY COUNCIL, INC. AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The Product Liability Advisory Council, Inc.

(PLAC) is a non-profit association with 103 corporate

members representing a broac: cross-section of Amer-

ican and international product manufacturers.

These companies seek to contribute to the 1mprove-

ment and reform of law in the United States and

elsewhere, with emphasis on the law governing the

liability of product manufacturers. PLAC’s perspec-

tive is derived from the experiences of a corporate

membership that spans a diverse group of industries

in every major facet of the manufacturing sector. In

addition, several hundred of the leading product lia-

bility defense attorneys in the country are sustaining

(non-voting) members of PLAC. Since 1983, PLAC

has filed over 850 briefs as amicus curiae in both

state and federal courts, presenting the broad pers-

pective of product manufacturers seeking fairness

and balance in the application and development of

the law as it affects product lability. A lst of

PLAC’s corporate members is attached as Appendix

A.!

! Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other tha. amicus and its counsel made a monetary contribu-

tion to its preparation or submission. Counsel of record for all

narties received notice at least 10 days prior to the due date of

the intention of amicus to file this brief. The parties’ letters

consenting to the filing of this brief have been filed with the

Clerk's office.

As part of the regular product-design process,

PLAC’s corporate members must routinely analyze

and resolve questions about safety. PLAC members

who manufacture products with the potential to

cause serious physical injury or death—uincluding

pharmaceuticals, medical devices, pesticides, foods-

tuffs, chemicals, appliances, power tools, and auto-

mobiles—have a particular interest in the legal rami-

fications of product-design decisions.

By imposing punitive lability against a manu-

facturer without requiring any assessment of wheth-

er its conduct was objectively reasonable, the Cali-

fornia courts have embraced a regime of post hoc

second guessing that would deprive any manufactur-

er of the ability to know in advance whether its deci-

sions will subject it to punishment. Such an ap-

proach not only deprives manufacturers of “fair no-

tice * * * of the conduct that will subject [them] to

punishment” (BMW of N. Am., Inc. v. Gore, 517 U.S.

559, 574 (1996)) but also “‘mak[es] the law se arb:

trary that [manufacturers] will be unable to avoid

punishment based solely upon bias or whim” (State

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,

418 (2003) (quoting Pac. Mut. Life Ins. Co. v. Haslip,

499 U.S. 1, 59 (1991) (O'Connor, J., dissenting))).

When punitive damages are imposed for objec-

tively reasonable conduct, their assessment is di-

vorced from their constitu‘‘onally-authorized pur-

pose. It is particularly important to PLAC’s mem-

bers that the law provide clear guidance on how

manufacturers can avoid the imposition of punitive

liability.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves a $55 million punitive damag-

es award attributable to the design decisions of peti-

tioner Ford Motor Company (“Ford”). Notwithstand-

ing the magnitude of the award, when Ford made its

design decisions, it had no reason to believe that

those decisions would subject it to any liability what-

ever. Nonetheless, the California courts concluded

that Ford could be mulcted for punitive damages

without regard to whether its design decisions were

objectively reasonable. The ramifications of this post

hoc approach to the imposition of punitive damages

are chilling.

The rationale underlying a punitive award pre-

supposes that the defendant could have—and should

have—conformed its conduct to society’s expectations

but strayed so far from its responsibilities that a

sanction of a quasi-criminal magnitude is required.

The imposition of punitive damages for objectively

reasonable conduct unhinges punitive liability from

these purposes and implicates the Constitution in

two respects. First, it squarely breaches the due

process imperative of fair notice. If a design decision

may subject a manufacturer to punitive lability

notwithstanding the existence of objective indicia

that the design decision was reasonable, then the

manufacturer could not have been on notice that it

was committing sanctionable misconduct. Second,

this approach runs afoul of the due process proscrip-

tion against arbitrary punishments. Due process re-

quires procedures to “cabin the jury’s discretionary

authority” (Philip Morris USA v. Williams, 549 U.S.

346, 352 (2007)) to impose lability for punitive dam-

ages. every bit as much as it requires procedures to

4

limit the jury’s discretion regarding the amount of

punishment. When a jury imposes punitive damages

for conduct that an objective observer could have

deemed lawful, the result is arbitrariness—the pro-

verbial bolt from the blue.

In the product liability context, the consequences

of unpredictable and arbitrary punitive awards can

be severe. Past punitive awards create powerful—if

often irrational—incentives for manufacturers at-

tempting to design products in similar situations.

Safety-related decisions should be made on the me-

rits of competing designs and not the fear that juries

will, out of sympathy for a badly injured plaintiff or

misplaced anger against a large corporation, levy

massive punitive exactions without regard to wheth-

er the manufacturer had an objectively reasonable

basis for its design decision. To avoid the deleterious

consequences of overdeterrence and ensure that

manufacturers are afforded their due process rights

to fair notice and protection against arbitrary depri-

vations of property, this Court should grant review

and hold that punitive damages cannot be imposed

upon a manufacturer whose design decision was ob-

jectively reasonable.

A. The Product-Design Process Necessarily

Requires Manufacturers To Make Com-

plex Cost-Benefit Decisions About Pro-

posed Design Features.

No product is completely safe. Nor does tort law

require manufacturers to build the safest product

that money can buy. ‘Thus, airplanes are not con-

structed entirely from the materials that comprise

the indestructible “black box,” subway trains are de-

signed to permit standees when sitting might be sa

fer, and automobiles are not equipped with a NAS

CAR-style roll cage. lhe process of product design

necessarily involves complex cost-benefit decisions.

When contemplating a particular design feature, a

manufacturer must consider many factors: the risks

nat are present in the design (including their like-

lihood and severity), the risks present in alternative

designs, and the relative costs and benefits of the

feature with respect to other design considerations

such as performance, efficiency, marketability, ap-

pearance, ease of operation, durability, freedom from

maintenance or repair, ease of manufacture, and

costs to consumers. The task of a responsible manu-

facturer is to strike a reasonable balance between

these often countervailing interests.

Of course, the result of this complex cost-benefit

analysis can be affected by externalities. Sometimes,

statutory and regulatory requirements—developed in

daylight with public input and debate—can alter a

manufacturer's independent judgment.

Similarly, the threat of punitive damages can

skew the design judgments of even the most con-

scientious manufacturers. Put simply, when puni-

tive damages are awarded for a defective product de-

sign, they have the purpose and effect of deterring

other manufacturers from making similar design de-

cisions. This may be appropriate in some circums-

tances, but when manufacturers are left to guess

what decisions may be subjected to quasi-criminal

condemnation and sanctions, the result is a scatter-

shot of design deviations based on no effective policy

foundation.

6

B. The Imposition Of Punitive Liability In

This Case Will Have An Irrational And

Dangerous Impact On The Product-

Design Process.

In this case, there was no way for Ford to know

that it risked punitive liability when it made its de

sign decisions. It complied with the standard on roof

strength (FMVSS 216, 49 C.F.R. § 571.216) set by

the National Highway Traffic Safety Administration

(“NHTSA”), whose experts believed that vehicles

with roofs designed to meet the standard were rea-

sonably safe. Likewise, NHTSA considered and re-

jected the roll-over stability standards relied upon by

plaintiffs’ experts after the fact. Pet. 4.

When the Explorer was designed, Ford’s engi-

neers faced an inevitable dilemma in determining

the center of gravity: A high center of gravity in-

creases the risk of injuries caused by rollovers, while

a low center of gravity increases the risks of injuries

from head-on collisions. See, e.g., Ford's Ct. App. Br.

47-48. Likewise, experts disagreed about how to

measure vehicle stability. Jd. at 47-49. The exis-

tence of these genuine ongoing disputes among ex-

perts over the merits of the disputed “safety fea-

tures’ colors the nature of Ford’s design decision in

this case. Ford had to analyze competing expert opi

nions on the fundamental safety-related merits of

various design features. There was no consensus

about whether certain alternatives created an unrea

sonable risk. Indeed, with respect to the Explorer's

center of gravity, there was no consensus about how

to balance the tradeoff between rollover risk (with its

high severity but low probability) and head-on risk

(with relatively lower severity but higher probability)

in crafting a safe vehicle overall. Ford’s ultimate de

cision was based on its attempt to strike a reasonable

balance between all of the diverse factors discussed

above. In other words, the design decision involved

in this case was not simply a question of dollars and

cents versus safety but involved a fundamental con

troversy about the relative safety of different product

designs.

re

We take no position on the merits of these com

peting viewpoints or whether [ord’s ultimate deci

sion was correct in hindsight. Those are questions

that are appropriately resolved by a factfinder when

deciding whether to award compensatory damages

Nor do we take a position on the more complicated

question of when a design decision that straightfor

wardly chooses costs over known safety risks should

give rise to punitive liability. Instead, our point is

that, contrary to plaintiffs’ theory of the case, punt

tive liability is never appropriate when, at the tim¢

that design decisions were being made, there was an

objectively reasonable basis for making the deci

31i0n—and no reason to believe that it would be sub

jected to punitive sanctions

C. This Court Should Grant Review To

Confirm That The Due Process Clause

Prohibits States From Imposing Puni-

tive Damages On A Product Manufac-

turer For Conduct That Reasonable

Persons Could Have Concluded Was

Lawful.

This Court repeatedly has stated that “[u]nless a

State insists upon proper standards that will cabin

the jury's discretionary authority, its punitive dam

ages system may deprive a defendant of ‘fair notic

*** of the severity of the penalty that a State may

impose” and “threaten ‘arbitrary punishments,’ Le

5

punishments that reflect not an ‘application of law’

but ‘a decisionmaker’s caprice.” Philip Morris, 549

U.S. at 352. Accordingly, “this Court has found that

the Constitution imposes certain limits, in respect

both to procedures for awarding punitive damages

and to amounts forbidden as ‘grossly excessive.” Id.

at 353. By the same logic, a State that fails to cabin

the jury's discretion deprives a defendant of fair no-

tice of the conduct that will expose the defendant to

punitive liability in the first place.

Both the requirement of “fair notice” and the li-

mitation on “arbitrary punishments” are implicated

when California courts sustain punitive liability

without regard to whether the defendant had an ob-

jectively reasonable basis for believing that its con

duct was permissible.

l. “[T]he concept of fair notice is [the] bedrock of

iny *** procedure.” Lankford v. Idaho, 500 U.S.

110, 120-121 (1991). As this Court has explained,

‘the point of due process—of the law in general—is

to allow citizens to order their behavior.” State

Farm, 538 U.S. at 418 (internal quotation marks

omitted). It follows inexorably that an unpredictable

sanction does not permit a party to order its behavior

and therefore violates due process. Accordingly,

‘leJlementary notions of fairness enshrined in [this

Court's] jurisprudence dictate that a person receive

fair notice * * * of the conduct that will subject him

to punishment.” BMW, 517 U.S. at 574; see also

Giacciwo \ ennsylvania, 382 U.S. 399, 402-403

(1966) (“a law fails to meet the requirements of the

Due Process Clause if it is so vague and standardl«

that it leaves the public uncertain as to the conduct

it prohibits )

9

Punitive damages can violate this principle in

two ways. A statute that is vague on its face makes

it impossible for any defendant to predict what con-

duct will be penalized. Alternatively, the circums-

tances of a particular case can render punitive dam-

ages unpredictable such that the governing statute is

vague as applied. Both concerns are particularly po-

tent in the product-liability context. Tort law ex-

pects manufacturers to make risk-utility assess-

ments of design proposals. If they cannot adequately

anticipate the risk of punitive damages, however,

those calculations will be less likely to maximize e1

ther utility or public safety.

As one commentator has observed, in the prod-

uct-liability context an award of punitive damages

can give rise to “indirect’ costs that manufacturers

appear to take very seriously, such as publicity about

litigation that may damage the company’s reputation

or trigger additional lawsuits, reactions of consumers

that could reduce product demand, and reactions of

safety regulators such as investigations, product re-

calls, or stricter regulations.” Steven Garber, Pun

tiue Damages and Deterrence of Efficuency-Promoting

Analysis: A Problem Without a Solution?, 52 STAN. L.

REV. 1809, 1814 (2000); see also Haslip, 499 U.S. at

54 (O’Connor, J., dissenting) (“[T]here is a stigma at

tached to an award of punitive damages that does

not accompany a purely compensatory award. The

punitive character of punitive damages means that

there is more than just money at stake. This factor

militates in favor of strong procedural safeguards.”):

Masaki v. Gen. Motors Corp., 780 P.2d 566, 575

(Haw. 1989) (punitive damages “can stigmatize the

defendant in much the same way as a criminal con

viction’ and therefore “can be onerous when loosely

assessed’)

10

Sensitive to these concerns, several courts have

held as a matter of state law that punitive liability is

inappropriate when the manufacturer has made a

design decision that was supported by contempora-

neous expert opinion—such that an objective observ-

er could have concluded that the decision was rea-

sonable—even though other experts might have be-

lieved that the design created an unreasonable risk

of injury.”

2 See, e.g., Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th

Cir. 1995) (vacating punitive award in part because “there is a

genuine dispute in the scientific community as to whether leg

guards do more harm than good”); Burke v. Deere & Co., 6 F.3d

497, 51i (8th Cir. 1993) (reversing denial of j.n.o.v. because

“fa]n award of punitive damages ts not appropriate when room

exists for reasonable disagreement over the relative msks and

utilities of the conduct at issue”); Loitz v. Remington Arms Co.,

563 N.E.2d 397, 407 (ill. 1990) (reversing punitive award in

part because there was a good-faith disagreement among metal-

lurgical experts regarding the safety of the material used in

making the gun barrel that exploded, causing plaintiffs injury);

Mercer v. Pittway Corp., 616 N.W.2d 602, 618 (lowa 2006) (con-

cluding that, where there was reasonable disagreement among

experts about adequacy of product design and testing, rational

jury could not find defendant liable for punitive damages even

though it could reasonably find hability on plaintiffs’ underly-

ing tort claims); Hillrichs v. Avco Corp., 514 N.W.2d 94, 100

(lowa 1994) (affirming j.n.o.v. on punitive damages because “an

award of punitive damages is inappropriate where room exists

for reasonable disagreement over the relative risks and utilities

of the conduct and device at issue”); Owens-Corning Fiberglas

Corp. v. Garrett, 682 A.2d 1143, 1163-1165, 1167-1168 (Md

196) (reversing punitive award in part because there was a

genuine scientific dispute regarding the safety of the product at

issue); see generally David G. Owen. Problems tn Assessing Pu-

nittue Damages Against Manufacturers of Defective Products, 49

U. CHI. L. REV. 1, 38 (1982)

iat

Likewise, in equivalent contexts, this Court has

recognized that due process precludes the imposition

of punishment whenever t. > defendant reasonably

could have concluded that its conduct was lawful.

See generally Colauttit v. Franklin, 439 U.S. 379, 401

(1979) (finding criminal statute predicating liability

on a “complex medical judgment about which experts

can—and do—disagree” to be unconstitutionally va-

gue); Connally v. Gen. Constr. Co., 269 U.S. 385, 392

(1926) (criminal law “should not admit of such a

double meaning that the citizen may act upon the

one conception of its requirements and the courts

upon another”); Sw. Tel. & Tel. Co. v. Danaher, 238

U.S. 482, 490 (1915). Nevertheless, the court below

specifically refused to consider whether punitive lia-

bility could coexist with the objectively reasonable

belief that the design decision was correct.

This case accordingly exemplifies the need for

this Court to clarify that the fair notice component of

due process—not just state law—precludes imposi-

tion of punitive damages when the record contains

objective indicia of the reasonableness of the defen-

dant’s conduct.

2. This Court’s oft-expressed concern about arbi-

trary punishments further supports the need for re-

view. For a variety of reasons, product lability cases

pose significant and persistent risks that punitive

damages will be imposed arbitrarily. First, such cas-

es frequently involve catastrophic injury or death.

Second, many products—no matter how well-

designed—carry unavoidable risks. Third, the de-

sign process necessarily involves attempts to identify

and valance risks. Thus, manufacturers are parilcu-

larly susceptible to findings of punitive liability by

12

juries that are exhorted to conflate intent to design a

product in a certain way with intent to injure.3

Serious injuries viewed through the lens of hind-

sight can result in scrious penalties that have no

power to deter future misconduct.

As Judge Easterbrook has explained:

The ex post perspective of iitigation exerts a

hydraulic force that distorts judgment. Engi-

neers design [complex products] to minimize

the sum of construction, operation, and in-

jury costs. * * *

Come the lawsuit, however, the [plaintiff]

injured by {the product] presents himself as a

person, not a probability. Jurors see today’s

injury; persons who would be injured [by an

alternative design] are invisible. Although

witnesses may talk about them, they are

spectral figures, insubstantial compared to

the injured plaintiff, who appears in the

flesh. *** j{N]jo matter how conscientious

jurors may be, there is a bias in the system.

Ex post claims are overvalued and technical

arguments discounted in the process of litiga-

tion. And the claims of crippled neighbors

receive more weight than do potential inju-

ries to be felt by [consumers] (and stockhold-

ers) in other states.

Design defect cases inevitably involve “conscious design

choice{s]’ * * * impheat[ing! a manufacturer’s decisionmaking

process concerning risk-utility’; “[uJnlike the standard negli-

gence case of yesteryear, the modern products liability case

comes with ‘intent’ built in.” Aaron D. Twerski, Punitive Dam-

ages: Through the Five Prisms, 39 VILL. L. REV. 353, 35€ (1994);

see also Owen, supra note 2, at 22—26.

13

Carroll v. Otis Elevator Co., 896 F.2d 210, 215-216

(7th Cir. 1990) (Easterbrook, J., concurring) (citation

omitted); see also W. Kip Viscusi, Jurors, -ludges,

and the Mistreatment of Risk by the Courts, 30 J. LE-

GAL STUD. 107, 116 (2001).

The arbitrary nature of punitive damages in the

product liability context is at its zenith when such

damages are imposed in the face of objective evi-

dence of the reasonableness of the design decision—

such as evidence that the decision complied with

NHTSA standards or evidence of a legitimate, good-

faith dispute among experts over the best way to

balance risk against functionality. If punitive dam-

ages are permitted in such circumstances, there is no

way (other than building a fortress on wheels) for the

manufacturer to protect itself from punitive damag-

es. That is the height of arbitrariness. For this rea-

son as well, review is warranted to make clear that

the Due Process Clause prohibits the imposition of

punitive damages when the defendant had an objec-

tive basis for believing its conduct to be permissible.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

HUGH F. YOUNG, JR. EVAN M. TAGER

The Product Liability Counsel of Record

Advisory Council, Inc. BRIAN D. NETTER

1850 Centennial Park Mayer Brown LLP

Drive, Suite 510 1999 K Street, NW

Reston, VA 20191 Washington, DC 20006

(703) 264-5300 (202) 263-3000

Counsel for Amicus Curiae

The Product Liability Advisory Council, Inc.

OCTOBER 2009

APPENDIX

APPENDIX A

Corporate Members of the

Product Liability Advisory Council

3M

A.O. Smith Corporation

ACCO Brands Corporation

Altec Industries

Altiria Client Services Inc.

American Suzuki Motor Corporation

Andersen Corporation

Anheuser-Busch Companies

Arai Helmet, Ltd.

Astec Industries

BASF Corporation

Bayer Corporation

Beretta U.S.A Corp.

BIC Corporation

Biro Manufacturing Company, Inc.

BMW of North America, LLC

Boeing Company

Bombardier Recreational Products

BP America Inc.

Bridgestone Americas Holding, Inc.

Briggs & Stratton Corporation

Brown-Forman Corporation

Caterpillar Inc.

Chrysler LLC

Continental Tire North America, Inc.

Crown Equipment Corporation

Daimler Trucks North America LLC

The Dow Chemical Company

Kf. DuPont De Nemours and Company

Mili Lilly and Company

Emerson Electric Co.

Engineered Controls Internatiozial, Inc

sD,

tac

Estee Lauder Companies

Exxon Mobil Corporation

Ford Motor Company

Genentech, Inc.

General Electric Company

GlaxoSmithKline

The Goodyear Tire & Rubber Company

Great Dane Limited Partnership

Harley-Davidson Motor Company

Hawker Beechcraft Corporation

The Heil Company

Honda North America, Inc.

Hyundai Motor America

Illinois Tool Works, Inc.

International Truck and Engine Corporation

Isuzu Motors America, Inc.

Jarden Corporation

Johnson & Johnson

Joy Global Inc., Joy Mining Machinery

Kawasaki Motors Corp., U.S.A.

Kia Motors America, Inc.

Koch Industrics

Kolcraft Enterprises, Inc.

Kraft Foods North America, Inc

Leviton Manufacturing Co., Inc

Lincoln Electric Company

Magna International Inc.

Mazak Corporation

Mazda (North America), [ne

Medtronic, Inc.

Merck & Co., Inc.

Microsoft Corporation

Mitsubishi Motors North America, In

Mueller Water Products

Newell Rubbermaid Ine

Nintendo of America, Inc

3a

Niro Inc.

Nissan North Amcrica, Inc.

Novartis Pharmaccuticals Corporation

PACCAR Inc.

Panasonic

Pfizer Inc.

Porsche Cars North America. Inc.

Purdue Pharma L.P.

Remir ston Arms Company, Inc.

RJ Reynolds Tobacco Company

Schindler Elevator Corporation

SCM Group USA Inc.

Senco Products, Inc.

Shell Oil Company

The Sherwin-Williams Company

Smith & Nephew, Inc

St. Jude Medical, Inc.

Subaru of America, Inc.

Synthes (U.S.A.)

Terex Corporation

Textron, Inc.

TK Holdings Inc.

The Toro Company

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

Vermeer Manufacturing Company

The Viking Corporation

Volkswagen of America, Inc.

Volvo Cars of North America, [nc.

Vulcan Materials Company

Watts Water Technologies, Inc.

Whirlpool Corporation

Yamaha Motor Corporation, U.S.A.

Yokohama Tire Corporation

Zimmer, Inc