General Motors Corp. v. McGee

• Decision Date: 18 December 2002
• Docket Number: No. 4D99-240., No. 4D98-2795
• Citation: 837 So.2d 1010
• Parties: GENERAL MOTORS CORPORATION, a Foreign Corporation, General Motors Corporation Buick, Oldsmobile, Cadillac Group, and General Motors Corporation Oldsmobile Division, Appellants, v. Robert J. McGEE, Individually, Constance McGee, Individually, Kelly Amber McGee, a Minor, through her Parents and Natural Guardians, Robert J. McGee and Constance McGee, and Robert J. McGee and Constance McGee, as Personal Representatives of the Estate of Shane McGee, Deceased, Valley Forge Insurance Company, a Pennsylvania Corporation, Progressive American Insurance Company, a Florida Corporation, State Farm Mutual Automobile Insurance Company, an Illinois Corporation, and Valley Industries, Inc., Appellees.
• Court: Florida District Court of Appeals

837 So.2d 1010

GENERAL MOTORS CORPORATION, a Foreign Corporation, General Motors Corporation Buick, Oldsmobile, Cadillac Group, and General Motors Corporation Oldsmobile Division, Appellants, v. Robert J. McGEE, Individually, Constance McGee, Individually, Kelly Amber McGee, a Minor, through her Parents and Natural Guardians, Robert J. McGee and Constance McGee, and Robert J. McGee and Constance McGee, as Personal Representatives of the Estate of Shane McGee, Deceased, Valley Forge Insurance Company, a Pennsylvania Corporation, Progressive American Insurance Company, a Florida Corporation, State Farm Mutual Automobile Insurance Company, an Illinois Corporation, and Valley Industries, Inc., Appellees.

Nos. 4D98-2795, 4D99-240.

District Court of Appeal of Florida, Fourth District.

December 18, 2002.

As Modified On Grant of Clarification March 5, 2003.

Frank M. Hinman, David M. Heilbron, Joy K. Fuyuno, Anthony T. Falzone, Monty Agarwal, and Christina M. Wheeler of Bingham McCutchen, LLP, San Francisco, California, William L. Kirk, Jr., and Daniel J. Gerber of Rumberger, Kirk & Caldwell, P.A., Orlando, John H. Pelzer, and Terrence Russell of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, and John Beranek of Ausley & McMullen, Tallahassee, for appellants.

Sheldon J. Schlesinger, Robert W. Kelley, and John J. Uustal of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, for appellees-Robert J. McGee, individually, Constance McGee, individually, Kelly Amber McGee, a minor, through her parents and natural guardians, Robert J. McGee and Constance McGee, and Robert J. McGee and Constance McGee, as Personal Representatives of the Estate of Shane McGee, deceased.

GROSS, J.

This products liability case arises from a lengthy trial where the plaintiffs recovered a substantial verdict in compensatory damages and the jury declined to award punitive damages.

We affirm. The trial was marred by the behavior of the attorneys on both sides. Nonetheless, the trial judge guided the trial to its conclusion with a steady, even hand.

The Accident and Plaintiffs' Injuries

On July 3, 1991, Robert and Connie McGee were on vacation in Virginia with their children, eleven-year-old Kelly and thirteen-year-old Shane. The family were passengers in a 1983 Oldsmobile Cutlass Cruiser station wagon owned by a family member, Jane Renze, who was also in the car. The Oldsmobile¹ stopped at a toll booth near Virginia Beach.

Meanwhile, Curtis Cayton was driving his pick-up truck pulling a homemade trailer. The trailer disconnected from the truck, crossed four lanes of traffic, and hit the Oldsmobile. Kelly felt "a little bump." Robert felt a bump, like "somebody had just not quite stopped, pulled up and tapped us." Connie felt a "slight tap." Jane Renze described the accident as "not an impact situation," more like a "thud" as though the car had been hit by a stone.²,³

The trailer tongue pierced the station wagon's gas tank, causing the tank to leak fuel, ignite, and explode. The car was a big ball of fire. Robert, Connie, and Kelly made it out of the car, although all three suffered severe burns. Sitting in the front of the car, Shane was restrained by his seat belt, so he had more difficulty escaping.

When Shane got out of the car, his hair was on fire and his skin was black. Most of his recognizable facial features had been burned away; only his braces were identifiable.⁴ His clothes had burned off. Streaming blood came from his mouth. His eyes were red with blood. Hindered by their own injuries and restrained by others, Robert and Connie were unable to help or comfort their son.

Emergency personnel helicoptered Shane to a Norfolk hospital with burn treatment facilities. By the time he arrived, Shane was alert, with full thickness burns on 98% of his body.⁵ A full thickness burn is one that penetrates through all of the skin layers and requires skin grafts in order to heal. The treating physician described Shane's injuries as "the single worst burn [that he had] ever seen in a surviving patient." He told Shane that he was going to die. Shane signaled that he understood by shaking his head, because his eyes were sealed shut from the burns and his vocal cords were scorched. The emergency staff tried to make Shane comfortable by cutting through his burned skin to relieve pressure on his chest and by giving him morphine. He died two hours after his arrival at the emergency room.⁶

Robert, Connie, and Kelly were initially taken to a Virginia Beach Hospital for treatment. Because of the severity of their burns, they were later transferred to the Norfolk hospital where Shane had died. At the burn unit, Connie and Kelly endured painful debridement treatments in burn tubs. A debridement treatment requires the patient to be immersed in a stainless steel tub full of antiseptic, such as Betadine or Clorox, and to have the blisters covering the burned areas scrubbed off.

Robert and Connie heard Kelly screaming from the pain of her twice-a-day debridement procedures. Both Connie and Kelly required morphine to bear the procedure. Connie's treating physician described the torment of her injuries and treatment as "among the severest pain and constant pain that individuals that I have treated will suffer ... [one] of the most painful forms of injury that a person can sustain."

Robert suffered a burn on his leg and a burn on his hand that required a skin graft. Connie sustained burns on 50% of her body. The burns on her arms, hands, legs, and ankles required skin grafts. Kelly's burns covered 20-24% of her body, involving her face and neck, both legs and both arms. Kelly and Robert stayed in the hospital for two and a half weeks before their release. Because her burns were more severe, Connie was hospitalized for five to six weeks.

Once home, Connie required outpatient surgeries to correct the scar tissue around her mouth, which had sealed the corners of her mouth shut and deformed her facial features. Connie had trouble walking and bending her fingers. She was unable to stand without assistance. She suffered severe itching and had difficulty controlling her body temperature, because sweat and oil glands had been burned away. Circulatory problems created by the burns caused Connie's mouth and legs to swell. She underwent reconstructive surgery because the scars had started to web her fingers.

Kelly was permanently disfigured from the scarring. She struggled with nightmares and depression and felt embarrassed about her scars. The entire family required psychological counseling to deal with Shane's death and their own painful experience. The emergency room physician and therapist who treated the McGees both needed therapy to cope with their exposure to the family's suffering.

The McGees settled their cases with the truck driver, Cayton. They pursued a case against GM on the theories of negligence and products liability. They sought punitive damages on the ground that GM had "actual knowledge" that it had marketed "an inherently dangerous automobile." Chrysler Corp. v. Wolmer, 499 So.2d 823, 826 (Fla.1986). The McGees contended that GM had willfully, intentionally, and unnecessarily exposed them and the American public to death by fire, for monetary reasons. They argued that GM did not provide adequate safety measures on fuel systems because the fire-related deaths did not cost the company enough per vehicle to justify any added expense for safety.

The Plaintiffs' Case for Liability

John Marcosky

John Marcosky, a former GM engineer, testified that the placement of the fuel tank between the rear axle and bumper made the tank vulnerable to breach and puncture, because there was nothing between the tank and the bumper to insulate the tank from rear impacts. He opined that the vehicle was "defectively manufactured and designed at the time of the accident and at the time it left the factory." Describing the placement of the tank close to the ground, he said that the "defect just jumps out at you."

Based on his examination of the Oldsmobile after the accident, Marcosky concluded that the car design was defective because the tank materials, the absence of a shield, and the tank location made the tank vulnerable to direct impacts, fuel leakage, and fire. Marcosky told the jury that the gas tank was made of steel .024 inches thick and opined that the thin material contributed to the tank's breach. He noted that the trailer coupler in the accident struck the metal fuel tank straps, which were made of 1/16 of an inch thick steel and which deflected the impact and avoided puncture of the tank.

According to Marcosky, GM was aware of the fuel tank's design hazards. The design flaw derived from GM's inability to get the size of gas tank they wanted while keeping the floor height in the station wagon at a certain level. Marcosky said that several people had identified the dangers of the fuel tank's placement and that rear impact collision and ground clearance tests raised "red flag" warnings that the fuel tank was vulnerable to puncture. Tests "revealed the fuel tank [involved in this case] was compromised in rear end impact testing, and breached and fuel discharged." Other tests resulted in scraping of the tank from six and eight inch curbs; Marcosky said that these test results were a "red flag that [said] a failure mode for this particular tank should be investigated.... [I]f the vehicle is contacted under these of the lightest possible conditions, what else is there, what else should we consider?"

Marcosky informed the jury that if a car maker decides to "stick with a bad design" and put the tank in a vulnerable spot, then the manufacturer needs to "reduce the hazard and risk of injury" by putting a "band-aid on it." He noted that GM considered different alternatives to protect the fuel tank from punctures, such as liners, bladders, and shields, with costs ranging from $3.87 to...