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COULD A $2 PART HAVE PREVENTED A BURNING DEATH?

Feb 19, 2001

The National Law Journal

Case Type: products liability

Case: Witherspoon v. Mack Trucks Inc.,

CV-97-172C (Clarke Co., Ala., Cir. Ct.)

Plaintiff's Attorneys: Robert T. Cunningham Jr. of Mobile, Ala's Cunningham, Bounds, Yance, Crowder & Brown: and Gaines C. McCorquodale of Jackson, Ala.'s McCorquodale & McCorquodale

Defense attorneys: Edward G. Isaacs Bowron and L. William Daniels of Mobile's Pierce, Ledyard, Latta & Wasden

Jury Verdict: $50 million, reduced to $25 million

In November 1995, truck driver Tonnie Ray Witherspoon, 31, was carrying a load of logs in a 1993 Mack RD 600 tractor in Grove Hill, Ala., when the 18 wheeler "ran slightly off the road and the load of logs forced it to overturn," said plaintiffs' counsel Robert T. Cunningham Jr. "He was not moving at a high rate of speed, but the truck ended up upside down. He was trapped in the cab," he added.

A small fire started in the engine compartment, and despite efforts to put out the fire, it gradually progressed. For more than 10 minutes, witnesses at the scene attempted to get him out of the truck, Mr. Cunningham added, but Mr. Witherspoon ultimately burned alive.

His mother, Mary Witherspoon, filed a products liability/wrongful death action against Mack Truck Inc., charging that "electrical arcing" in the battery system of the truck had started the fire and that Mack Truck could have prevented the fire by installing an electrical cutoff device, or inertia switch, which would have disabled the electrical system in a crash.

"Numerous studies have shown that post-crash fires are a leading cause of fatalities for operators of large trucks, " Mr. Cunningham said. About 1,000 truckers die each year, he said, about 160 of them in post-crash fires. "A principal source of these fires is arcing," an electrically-induced ignition of vapors. "Arcing occurs when there is damage to the battery cables," and in the Witherspoon crash, "that arcing ignited the fire". "An inertia switch is a simple, inexpensive fix," which would cost about $2 to $3 per vehicle, he said. But, the plaintiff contended, Mack rejected using the switch.

Mack denied that there were any defects in the truck and contended that an inertia switch was neither necessary nor required, said defense attorney Edward Bowron. "It's not standard in the industry. No manufacturer uses it. It's not mandatory by NHTSA," Mr. Bowron said. Mack did not prevent any efforts by National Highway Traffic Safety Administration to require an inertia switch, he added. Mack also disputed the source of the fire, maintaining that the fire was ignited by the contact of flammable fuel spilling out onto the hot surfaces in the engine compartment of the truck.

On April 12, a Grove Hill, Ala., jury awarded the plaintiffs $50 million- all in punitives, because Alabama law only allows recovery of punitive damages in a wrongful- death action. On the first day of trial, Mr. Cunningham said, "Mack offered $300,00 to settle, but we never responded." The largest verdict in Clarke County before this was $2 million.

Mack filed post-trial motions for a new trial, remittitur and judgment notwithstanding the verdict. On Aug. 9, Judge Harold Crow reduced the award to $25 million but rejected all other defense post-trial motions. Mack has appealed.

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