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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy LLP successfully defended a jury’s finding that the 1999 Ford Expedition was not defectively designed simply because the plaintiff was injured when he ran the vehicle into a tree.

Plaintiff David Michery was driving his neighbor’s 1999 Ford Expedition down a city boulevard when he jumped the curb into a planted median and crashed into a palm tree, injuring his leg. Michery sued Ford for products liability, alleging the Expedition was defectively designed because its front bumper design was not strong enough to prevent the tree from deforming the vehicle into his leg space. At trial, Ford presented evidence that Michery’s injury was caused by the crash forces, not vehicle deformation into Michery’s leg space; that the Expedition met or exceeded all safety specifications; and that reinforcing the design as Michery proposed could have made the vehicle less safer, rather than more. The jury found for Ford, answering the first question on the verdict form—whether Ford proved the benefits of the designed outweighed the risks—in Ford’s favor, and never reached any other issues, including whether the design of the vehicle was even a cause of Michery’s injury. The district court entered judgment for Ford. Michery appealed, arguing (1) that the district court should have placed the causation question on the verdict form before the design defect question; (2) that the district court was required to instruct the jury on comparative fault, even after Ford withdrew its comparative fault defense, given Ford’s arguments about Michery’s role in causing his own injuries; and (3) that the district court committed various evidentiary errors.

Horvitz & Levy was retained to represent Ford on appeal. The Ninth Circuit affirmed the judgment for Ford in a short memorandum disposition, agreeing with all of our arguments. A defendant is entitled to assert the defense of no causation without proceeding with an affirmative defense of comparative fault, and in any event, there was no prejudice from the lack of a comparative fault instruction because the jury never reached the issue of causation. Further, while placing the causation question after the design defect question did not strictly follow CACI, the jury was properly instructed on the elements of the risk-benefit test for design defect, so the order those questions appeared on the verdict form caused no prejudice to Michery. Finally, there was no merit to Michery’s evidentiary error arguments.