Mathes (Mo Lawyer's Weekly)

#5 Plaintiff's Verdict: Ford Hit For $12.5M Over Pickup Crash

Husband, Wife And Grandson Died In Blaze

By Geri Dreiling

A wrongful death suit against Ford Motor Company alleging a defective product design on a 1997 F150 pick-up truck netted a $12.5 million verdict from a Jackson County jury.

John and Shirley Mathes and their 8-year-old grandson Jacob died in a fiery crash in October 1999.

It was the first case in the country to allege that the fuel tank's plastic shield was inadequate, allowing pointed anti-lock brake guards to pierce the tank.

To prove the product defect, the plaintiff's attorneys, J. Kent Emison of Lexington and Roger L. Ponder of House Springs, introduced seven internal crash tests conducted by Ford starting in 1993.

"Ford never passed their internal standards for vehicle-to-vehicle crash testing on a production model with the small plastic shield that was on the Mathes pickup," said Emison.

Using the crash test results, the plaintiff prepared a timeline which Emison described as "very important to the jury. In fact, that was an exhibit that the jury asked for during deliberations."

The March 4 verdict came in Mathes v. Ford Motor Company, et al.

Hunting Trip

On Oct. 9, 1999, John and Shirley Mathes went on a hunting trip with their grandson Jacob Mathes. They were traveling westbound on Interstate 70 after a hard rain. John, 64, was driving the 1997 two-wheel drive Ford F150 pickup truck and towing a camper-trailer with two propane tanks. Shirley, 58, and Jacob, 8, were passengers in the truck.

Unknown to the Matheses, a short time earlier a Sher Express tractor-trailer headed east on I-70 near Warrenton had lost control on the wet pavement, crossed the median and came to rest across both westbound lanes.

The Mathes pickup came up over a hill and collided with the tractor-trailer. The pickup was then struck from behind by another vehicle, which "underrode" it.

Between two and five minutes after the collision, the pickup burst into flames that shot 18-feet into the air. All three were trapped in the truck and died.

Gordey Mathes — son of John and Shirley and father of Jacob — brought a wrongful death suit against Sher Express and Ford Motor Company.

The case was filed in the Jackson County Circuit Court in 2002. Mathes alleged negligence by Sher Express and its truck driver. He also claimed that the fuel system of the two-wheel-drive Ford F150 pickup truck was defectively designed because the fuel tank was not adequately shielded, allowing two pointed anti-lock brake system guards on rear axle to puncture the tank.

Although Sher Express appeared as a defendant at trial, the company admitted liability and the plaintiff agreed to limit his recovery to the company's $1 million insurance policy.

With Sher's liability settled, "the whole focus of the trial was on Ford's responsibility," Emison said.

To make their case against Ford, the plaintiff's attorneys had three major points to prove:

* The Ford F150 was defectively designed.

* The fire after the accident was caused by leaking gas from the pickup's punctured fuel tank and not by the propane tanks or some other flammable liquid present at the accident scene.

* The Matheses died in the fire, not the initial collision.

Crash Tests

The product defect allegations focused on the small plastic shield covering the Ford F150's fuel tank, as well as the ABS guards on the rear axle that Emison described as "arrow-like prongs."

According to Emison and Ponder, the two-wheel-drive Ford F150 that the Mathes family was driving was equipped with a small plastic shield that covered the back of the tank.

"The four-wheel-drive version of the F150 has a large steel shield that covers the complete bottom of the tank and a very small part of the side," Emison said. "The main point we tried to make was that the small plastic shield was completely inadequate."

To back the claim up, the plaintiff's attorneys introduced Ford's vehicle-to-vehicle crash tests on Ford F150s equipped with the small plastic shield.

"Ford ran seven vehicle-to-vehicle crash tests before they put the Mathes pick-up on the road," Emison said. "In the very first vehicle crash test, which was a prototype, not a production model, they did not have a leak."

But the 50 mile-per-hour crash tests on production models with plastic shields yielded a different result.

"They failed every test," Emison said, "meaning there was a large leak from the fuel system."

Armed with the crash test data, the plaintiff's lawyers prepared a persuasive timeline exhibit.

Then the plaintiff addressed the defective design claim involving the anti-lock brake system sensor guards

"We called them pointed steel prongs — they looked kind of like an arrowhead," Emison said. "They were pointed toward the tank, 6 1/2 inches from the tanks. It was our claim that those prongs punctured the tank."

The plaintiff argued that the prongs didn't have to be sharp and pointed, noting that Ford had redesigned the sensors for other models, adopting a rounded and smooth shape.

"What is important is that Ford had even redesigned those prongs to be rounded and smooth on the replacement axles [for the F150]," Emison said.

"What we argued to the jury was that if the F150 had had the rounded prongs or the proper guarding, there would've been no fire," Emison said.

The jury agreed with the plaintiff's defective design arguments but Ford Motor Company still disputes it.

Ford's defense counsel referred all questions to Kathleen Vokes, the company's spokesperson, who said, "The F150 was developed to meet a crash standard almost three times more severe than the federal safety standard. The plaintiff's theory of defect has never been the basis for any other claim against the F150."

Cries For Help

The second challenge the plaintiff faced was proving that gasoline leaking out of a 6-by-1.5 inch hole in the fuel tank caused the fire.

"[Ford] had an expert come in and claim it was brake fluid that started the fire or power steering fluid or propane," Emison said.

The plaintiff countered with his own fire cause and origin expert. And he also had dramatic and emotional testimony from some of the witnesses at the scene.

One witness testified that while he was standing beside the truck before the explosion, he smelled gas and saw it running in ripples underneath the truck. Afraid it would explode, he pulled another would-be rescuer away from the vehicle.

"When they got about 50 feet away from the truck, it did explode," Emison said, sending flames 18-feet above the truck. The witness said that the explosion sounded like one that occurs when gas is poured on leaves and then lit.

"There's a 'whoosh' sound — that's a classic gas vapor explosion," Emison said.

But the plaintiff also had to convince the jury that John, Shirley and Jacob died in the fire, not from the initial impact.

Vokes said: "The medical examiners for both sides agreed that there was no objective medical evidence that the occupants survived the crash into the semi-trailer. There was no soot found in their throats, airways, or lungs; no autopsy findings that they had breathed in heated air; and no carbon monoxide detected in laboratory tests."

Emison disagreed. Using a true/false questioning strategy on cross-examination, Emison said, "Both of Ford's experts agreed with our expert that there was no evidence that any crash-related injuries to any of the three decedentswould have been fatal."

And while some of the witnesses described the three decedents as slumped over and motionless after the crash, three construction workers testified that they heard screams coming from the truck.

"We had three ironworkers from St. Louis who were standing probably within 20 feet of the truck when it exploded and they said that they heard two or three voices yelling from the truck: 'Help me, help me, somebody help me.'"

Ponder said that after the fire, "At least two of them were found sitting straight up with their backs against the seat."

Emison added, "None of the three were slumped over."

At the end of the two-week trial, the jury awarded $3 million for John Mathes' death, $2.5 million for Shirley Mathes', and $7 million for Jacob Mathes'. A punitive damages instruction wasn't submitted.

"The damages awarded were pretty much in line with what we asked for," Emison said, except that the jury came back with more than they requested for Jacob's death.

The damage award also wasn't apportioned between the defendants.

Mike Matteuzzi, the Kansas City lawyer who represented Sher Express, indicated that his client paid $975,000 to the plaintiff before the trial so that Sher's only remaining exposure is $25,000.

Vokes, who indicated that Ford will appeal, also insisted in a written statement that Sher Express, not Ford, caused the accident because the "driver of a tractor trailer was traveling at an excessive speed in a construction zone, lost control of his vehicle and rolled the 60,000-pound rig into oncoming traffic."

Both Matteuzzi and Emison have taken issue with Vokes' statement.

"There was no construction zone and no excessive speed," Matteuzzi said.

While Emison praised Ford's defense lawyers Frank Kelly and Paul Williams with Shook, Hardy & Bacon, he characterized Ford's press release regarding the tractor-trailer as "a complete fabrication."

Size of Verdict: $12.5 Million

Status: Appeal pending

Type of Case: Products Liability

Date of Verdict: March 4, 2004

Case Name: Mathes v. Ford Motor Company

Court: Jackson County Circuit Court

Plaintiff’s Attorneys: J. Kent Emison and Kevin Stanley, Langdon & Emison, Lexington; Roger Ponder, House Springs