2014-09-26 Memorandum of Law in Support of Motion to Add a Punitive Damages Claim & Amplify...

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jeffrey Paul Hinkemeyer,

Plaintiff,

v. Ford Motor Company,

Defendant.

Case No.: 0:13-cv-00739 (MJD-LIB) MEMORANDUM IN SUPPORT OF MOTION TO AMEND THE COMPLAINT TO ADD A PUNITIVE DAMAGES CLAIM AND AMPLIFY POST-SALE WARNING CLAIM

INTRODUCTION

We are before the Court on Plaintiff’s motion for an order granting Plaintiff

leave to amend his Complaint to add a claim for punitive damages against

Defendant Ford Motor Company (hereinafter “Ford”) and to address Ford’s

allegation that Plaintiff’s amended complaint failed to allege that Ford had a post-

sale/continuing duty to warn. Because there is an abundance of evidence of

Ford’s willful and deliberate disregard for the rights and safety of the motoring

public in general, and Plaintiff in particular, a claim for punitive damages should

be allowed. Because the same conduct which supports a punitive damages

claim against Ford also creates the “special circumstances” which support a

post-sale warning claim, and because of Ford refuses to acknowledge the

allegation it once tried to dismiss, “good cause” exists for amplification of

Plaintiff’s previously-pled post sale warning claim. Therefore, Plaintiff’s Motion to

Amend should be granted in its entirety.

CASE 0:13-cv-00739-MJD-LIB Document 142 Filed 09/26/14 of 46

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FACTS

This matter arises out of the May 30, 2009 Ford Pinto fire which resulted in

catastrophic burn injuries to Plaintiff Jeffrey Hinkemeyer. More specifically,

Plaintiff alleges the choices Ford utilized in designing the Ford Pinto caused an

explosive fire hazard, which Ford was well aware of but tried to hide. As a

consequence of Ford’s reprehensible conduct, Jeff Hinkemeyer was literally

incinerated in a post-collision fuel fed fire. Witnesses at the scene will testify that

Jeff’s skin looked like melting wax dripping off his body, and now Jeff is left

permanently disfigured and disabled. The May 30, 2009 Pinto fire was not an

isolated or unique event. Rather, the May 30, 2009 Pinto fire was simply the

latest in a long line of catastrophic burn injuries resulting from Ford’s indifference

to public safety.

A. Evidence Supporting Amendments

Discovery in this matter is continuing and incomplete. For example,

Plaintiff has been prevented from taking Ford’s Rule 30(b)(6) deposition, and

Ford has withheld numerous documents, including post-sale crash tests and

evidence relating to non-Pinto vehicles. As a result, despite the evidence

hereinafter cited, Plaintiff has been deprived of critical evidence to support his

claims.

However, an abundance of evidence exists to support the prima facie

showing required by Minn. Stat. § 549.191. Since the evidentiary record in this

matter is too voluminous to present in its entirety, Plaintiff presents the following


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non-exhaustive description of evidence supporting Plaintiff’s proposed Amended

Complaint.1

Leading up to Ford’s manufacture and sale of the subject 1979 Ford

Pinto2, Ford knew at least 600 (and perhaps as many as 3,500) burn deaths, and

countless injuries, were occurring every year as a result of post collision fuel fed

fires. 9/18/1973 Memorandum (Ex. 4), pages 1, 4, 6, 7. It knew “when

occupants are burned, the injuries tend to be quite serious”. Id. However, Ford

felt $200,000.00 per human life and $67,000.00 per burn injury was the “upper

bound” of the benefit it could achieve by protecting the motoring public from post-

collision fuel fed fires. Id. (arguing Federal crash fire standards were not cost

effective); see also 10/11/1973 Memorandum (Ex. 5), page 2 (stating costs of

rear impact requirement “are comparable to the most generously estimated

benefits, indicating marginal cost-effectiveness.” (emphasis added)).

1 All exhibits are attached to the 9/19/2014 Affidavit of Raymond Konz (“Konz Aff.”). Plaintiff’s proposed Second Amended Complaint is attached as Exhibit 1. A version of the proposed Second Amended Complaint with tracked-changes is attached as Exhibit 2. See LR 15-1. 2 Transcript of Testimony of Harley Copp in Grimshaw v. Ford Motor Co., Cal. Ct. Nos. 197 761; 197 397 (“Copp Trans.”) (Ex. 3), 10/20/1977, 25:15 - 19 (“I was Assistant Chief Engineer of Research, and there was another Assistant Chief Engineer of Research, and he was responsible for making the cost weight evaluations on what was known as the Phoenix, which was later the Special Maverick, and then the Pinto.” (emphasis added)). Cf. Fed. R. Evid. 804(b)(1); Fed. R. Evid. 801(d)(2)(D).


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Long before the Ford Pinto’s introduction, technical materials had warned

against locating a vehicle’s fuel tank “in the extreme rear . . . because of rear-end

collisions and the danger of its being punctured by sharp objects that may cause

explosions due to sparks.” See, e.g., M. Halsey, "The Relationship Between

Automobile Construction and Injury Accidents", SAE Paper No. 320056 (1932)

(Ex. 6), page 258. In 1968, on the basis of 55 mile-per-hour car-to-car crash

tests, using vehicles donated by Ford, one article concluded that:

Fuel tanks should not be located directly adjacent to the rear bumper or behind the rear wheels directly adjacent to the tender sheet metal as this location exposes them to rupture at very low speeds of impact. . . .

D. Severy et al., "Vehicle Design for Passenger Protection from High-Speed Rear

End Collisions," SAE Paper No. 680774 (1968) (Ex. 7) (recommending over-the-

axle fuel tank location as safest design); see also 3/27/1976 Memorandum (Ex.

8) (recognizing state-of-the-art design alternatives).

Rather than heed these warnings, Ford simply ignored them. In fact, none

of Ford’s General Product Assessment Specifications (“GPAS”) for fuel systems

addressed “fuel system integrity in rear end impacts . . . even remotely”.

4/26/1978 Memorandum (Ex. 9); Example “GPAS (Ex. 10). As a result of Ford’s

corporate indifference, it located the Ford Pinto’s fuel tank at the extreme rear,

directly adjacent to both the rear axle and the rear bumper. See 3/9/1978 Pinto

Rear Structure Study (Ex. 11); Representative Underbody Photograph (Ex. 12).


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Safety was not among Ford’s objectives for the Pinto, apparently because

it had other priorities. See, e.g., 12/9/1968 Memorandum (Ex. 13) (listing

“appearance” as an objective, but not safety).3 Rather, cost and weight seemed

to be Ford’s paramount concerns. See, e.g., 2/13/1969 Memorandum (Ex. 15),

page 2 (“cost and weight control of [the Pinto] program [was] critical to its

success”); 5/12/1969 Memorandum (Ex. 16) (“it is the E & F position that the

stock thickness increase [of the fuel tank] from .030” to .060” can not be

eliminated but may be reduced to .048”. This could reduce the $.75 penalty to

$.40.”); 11/11/1970 Memorandum (Ex. 17), page 1 (“Pinto-Type Cost Control

System . . . provides[s] the opportunity for substantial profit improvement . . .”).

In other words, evidence suggests Ford cut corners in order to increase its profit

margin for the Ford Pinto.

Rather than taking the time to do it right, the Ford Pinto’s “[f]inal rear end

arrangement including fuel tank, fuel filler, [rear leaf spring suspension], exhaust

system and rear rails” were “urgently” designed on a “crash basis”. 10/15/1968

Memorandum (Ex. 18). Despite the fact that the Ford Pinto was “a ‘new, new’

car from the ground up” (which presumably required at least the normal length

design time), in a rush to market Ford reduced the Pinto’s design schedule by

3 In contrast to the Pinto design process, Ford began incorporating safety “into basic planning procedure” in the early 1980s. 10/21/1980 Memorandum (Ex. 14) (Ford’s “future product safety requirements . . . provides guidance for the inclusion of . . . safety . . . into basic planning procedure . . .”); cf. Ford Motor Co. v. Zahn, 265 F.2d 729, 732 (8th Cir. 1959) (“[Ford’s quality control manager] testified: ‘safety of the automobile is a most important factor.’”).


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roughly 40% compared to the “standard” schedule. 6/2/1970 Engineering the

Pinto Outline (Ex. 19) 2d-3d, pages; see also 10/11/1968 Work Plan Chart (Ex.

20). Ford knew that an early introduction date would result in “defects that might

have been corrected or corrected with more appropriate fixes”. 1971 Special

Maverick Job #1 Timing Memorandum (Ex. 21), page 1. Its engineers expressed

concern that they would not be able to give the Pinto the “same degree of

attention that could be given” in a longer design process. 5/8/1969 Car Product

Planning Memorandum (Ex. 22). Ford knew, because the Pinto was “being

designed to minimum cost and weight levels”:

there [were] sure to be many areas that will be underdesigned and failures or inadequacies will show up during testing. If we were to take the safe route and overdesign the [Pinto] to preclude failures, we would not have a program because of excessive cost and weight. The current timing for Job # 1 is not compatible with the late changes that will be required due to the criteria of minimum cost and weight design.

4/18/1969 Memorandum (Ex. 23), page 2. Ford knew that it could only meet the

compressed design schedule “if there are no changes in program direction or

significant change to initial release drawings.” 10/29/1969 Memorandum (Ex.

24), page 1. Despite listing rear impact testing as “problem area” requiring

managerial attention, Ford pressed forward with its compressed design schedule.

1/15/1970 Memorandum (Ex. 25); cf. 4/22/1971 Memorandum (Ex. 26), page 4

(longer design schedule “would let us do a fundamentally better job of

incorporating” safety and flexibility into body design). The result was the basic

flawed design Ford utilized in all 1971-1980 Ford Pintos. 10/15/1982 Affidavit of


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Robert Pautsch (Ex. 27), ¶ 35 (“As an engineer . . . there is absolutely no basis

whatsoever to distinguish between the [1977-1980] Ford Pinto vehicles on one

hand and all other Pinto vehicles manufactured by [Ford] since 1971 on the

other.”).

Even before the Ford Pinto was introduced, Ford knew the Pinto suffered

from poor fuel system integrity. See, e.g., 5/8/1969 Advanced Vehicles

Memorandum (Ex. 27), page 2 (“There are a number of current design problems

. . . [including] Fuel Tank – Front and rear crash protection appears to be

inadequate.”). Early in the design process, Ford’s engineers “expressed concern

about the fuel tank location because of rear/side impacts.” 1/23/1969

Memorandum (Ex. 29), page 2. In contrast to the design actually chosen by Ford

(locating the Ford Pinto’s fuel tank in the crush-zone), Ford knew that that the

“safest” (i.e. “Optimum”) location for a fuel tank is “directly above the rear axle . . .

[where it] is above and forward of vehicle components likely to crush during the

collision or deform it”. 1/23/1970 Memorandum (Ex. 30), page 1; see also

7/26/1976 Memorandum (Ex. 31), 3d page (“Ostensibly, [the over-the-axle]

location offers the optimum place for maintaining fuel system integrity during car

to car collisions . . .”); cf. 7/7/1971 List (Ex. 32), page 2 (disadvantage of behind-

axle fuel tank location is “Tank volume may decrease during impact due to

deformation”). In fact, Ford considered relocating the Ford Pinto’s fuel tank over-

the-rear axle, but abandoned the proposal “[d]ue to the undesirable luggage

space attained with these proposals”. 1/31/1969 Memorandum (Ex. 33), 2d


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page; see also Transcript of Testimony of Harold MacDonald in Yarborough v.

Ford Motor Co., Tx. No 80-CI-409 (Ex. 34), 11/19/1980, 877:5-11 (“[the over-the-

axle tank location] didn’t enhance the luggage compartment so we never got to

the safety aspects of it.” (emphasis added)). Indeed, Ford’s explanation for the

locating the Ford Pinto’s fuel tank “aft-of-axle [is] it was a practical and feasible

location for the fuel tank.” Def.’s Answer Pl.’s Interrog. 7 (Ex. 36), 3d page; cf.

7/15/1970 Corporate Safety Position Paper (Ex. 35) (“Gas Tank Location[:]

Believed minimal consideration”).

Rather than fix the Ford Pinto’s fuel leakage problem, Ford decided that

“[a]ny changes to the rear body structure to meet rear impact safety requirements

will be established at a later date”. See 2/3/1969 Memorandum (Ex. 37), page 3.

By delaying design changes necessary for the Ford Pinto to survive a rear-

impact crash test, Ford anticipated savings of “$1.2 million for car”. 10/3/1971

Memorandum (Ex. 38), page 3; Fuel System Integrity Program Financial Review

(Ex. 40), page 2 (“Based on these estimates, it is recommended that the addition

of the ‘flak’ suit to all unitized cars be delayed until 1976 . . . A design cost

savings of $7.4 million can be realized by this delay.”); cf. 5/3/1971 Memorandum

(Ex. 39), page 1 (“The tank over axle location showed a significant margin of

safety when tested [but this direction was subsequently cancelled because of

conflict with the 3-door package requirements and cost ($12.65 penalty)].”).

Perhaps unsurprisingly, considering Ford’s lack of concern for safety, each

of Ford’s four pre-production rear-end Pinto crash tests resulted in fuel leakage,


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as did the first post-introduction crash test. Copp Trans. (Ex. 3), 10/26/1977,

18:4-20:7, 21:26-22:2, 31:4-32:23 (Ford employee stated “We are going to have

more damn lawsuits on our hands than you can shake a fist at.”). Despite its

knowledge that Ford Pinto occupants would be subjected to a risk of severe burn

injury at speeds as low as 17.8 miles per hour, Ford released the Pinto for

production anyway. Crash Test 1360 Report (Ex. 41).

At the time the Ford Pinto was introduced, there was no Federal Motor

Vehicle Safety Standard governing fuel leakage in rear-end collisions. Rather,

the “minimum” rear-impact fuel leakage standard did not go into effect until

September 1, 1976. 49 C.F.R. 571.301 (“FVMSS 301”); cf. Pokorny v. Ford Motor

Co., 902 F.2d 1116, 1122 (3d Cir. 1990) (“the Safety Act’s purpose was ‘to

reduce traffic accidents and deaths and injuries to persons resulting from traffic

accidents.’”).

Once the minimum Federal Motor Vehicle Safety standard was adopted,

rather than strive to save Pinto occupants from needless burn injury, Ford’s

“objective [was] to satisfy the 1977 Safety Requirements at minimum cost . . .”

6/4/1975 Memorandum (Ex. 42), page 2. Ford’s goal was, “[w]here minimum

performance requirement must be met, it must be exceeded only by the amount

of possible laboratory inaccuracy to assure compliance . . .” See 6/14/1973

Memorandum (Ex. 43), page 2. In fact, Ford adopted a policy of not making

modifications to improve fuel system integrity “until required by law”, suggesting

Ford was not concerned with preventing needless burn injuries, but was


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concerned, instead, only with keeping the government off its back. 4/26/1971

Memorandum (Ex. 44).

Ford’s “minimum” safety design approach was criticized even within Ford

Motor Company. As one Ford engineer observed:

Chassis Research Department suggests that the proposed “minimal design change approach” to meet a low test-severity target does not adequately meet the objective of a substantial reduction in fire hazard which is the intent of the Government’s proposed amendment to FMVSS 301.

12/1/1970 D.G. Younger Memorandum (Ex. 45), page 1. As observed by

another Ford employee:

From a Public Affairs standpoint, there is serious question as to whether sufficient measures are being taken to comply with present and proposed safety and damageability requirements.

12/1/1970 T.H. Mecke Memorandum (Ex. 46) (emphasis added); see also Pinto

Fuel Tanks Corporate Requirements Handwritten Notes (Ex. 47) (identifying

concern that Ford engineering organizations “simply did not take [safety

standards] seriously”).

“The Pinto/Mustang vehicles present[ed] a major challenge since their . . .

design d[id] not provide sufficient protection to the fuel tank itself . . .” 3/31/1975

Memorandum (Ex. 48), page 1; see also 2/25/1975 Memorandum (Ex. 49), page

1 (“[the] P[into]/M[ustang] . . . are disasters so far.”); 2/28/1975 Memorandum

(Ex. 50) (Ford was “rapidly coming to a real crisis on Pinto and Mustang.”). Ford

knew that “[d]ata from crash testing as of this date indicate that while problems


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exist, solutions are known for the problem, all cars can pass these requirements.”

4/30/1975 Memorandum (Ex. 51), 4th page.

However, the costs for major problems (Mustang/Pinto . . .) do exceed current objectives. Major efforts are being expended to develop lower cost alternative solutions.

Id. (emphasis added); see also Memorandum from T.H. Cooke et al. (Ex. 52)

(significant changes to the Ford Pinto “would seriously jeopardize containment of

associated costs with the present cycle plan expenditure levels.”).

In just tweaking the design of the Ford Pinto to get it to pass the minimum

federal standard, Ford utilized what even it described as a “patchwork” approach.

5/5/1978 Draft Response to NHTSA Inquiry (Ex. 53), page 6 (“The patchwork

concept was ultimately incorporated into the vehicle”). As Ford itself recognized,

“[t]he ‘Patchwork’ restructure concept . . . was developed to minimize investment

cost,” not for the purpose of maximizing passenger safety. 10/28/1975

Memorandum (Ex. 54); see also 4/7/1975 Design Transmittal (Ex. 55), page 2

(the approach to “’patch up the current structure’ . . . [was] the most cost effective

solution.”); 9/3/1975 Memorandum (Ex. 56), page 1 (“A vehicle with the

maximum cost reduction proposal patchwork structure (bare bones) was tested

8-1-75 (crash test number 3139).”). However, as Ford knew, none of the

“patchwork” changes addressed the Pinto’s real problem.

Ford itself identified the unique and particular defect with the Ford Pinto

design:


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1. The Pinto had the least rear overhang, meaning Ford located the fuel tank in an area with less crush space than other vehicles.

2. The “Pinto’s tank is more exposed and not as well protected”

as other vehicles; and

3. The Pinto’s leaf springs could cause the rear end of the Pinto to lift upwards during rear-end impact, encouraging underride, and further exposing the fuel tank to the risk of crushing impact.4

11/17/1977 Memorandum (Ex. 58); see also 4/7/1972 Memorandum (Ex. 59)

(“The gasoline tank is too close to the rear end of the car.”); Pinto Design Effects

Diagram (Ex. 60) (“‘exposed’ fuel tank vulnerable to direct impact, crushing, and

puncturing in rear-impact collisions”).

None of these problems were rectified by changes Ford made to 1977-

1980 Pintos. See 3/9/1978 Pinto Rear Structure Study (Ex. 11).5 The result of

Ford’s design choices, as explained in an internal Ford memorandum titled “Fuel

Tank Explosion (Pinto)”, is:

The design of the Pinto fuel tank is such that it . . . . is virtually a pressurized bomb waiting for a device for ignition. When it is compressed to the point of rupture it will then spew its contents in an

4 Underride/override is a crash condition in which the bumper of a vehicle colliding into another vehicle slips over or under the impacted vehicle’s rear bumper. M. Appleby et al. “Injuries in Underride-Override Collisions – A Clinical Study”, SAE 700483, (1970) (Ex. 57) pages 1708-09. 5 The fact that Ford considered extending a plastic shield to the back of the tank suggests its knowledge that the bumper of a vehicle colliding into the back of a Ford Pinto could impact the Pinto’s fuel tank. The fact that it chose not to incorporate this proposal suggests that it cared more about profits and reputation than it did about passenger safety.


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atomized vapor in all direction (hydraulically)6 a condition which only needs the spark of static electricity that all vehicles produce (tires prevent its discharge) or a spark from metal rubbing metal and/or metal rubbing concrete. . .

7/25/1978 Tafoya Memorandum (Ex. 61) (emphasis added) (“The fuel tank must

rupture in its current design if it is going to be crushed, a pressure relief valve

would prevent this by venting its internal pressures into an orificed ballooned

device of an appropriate design.”); see also 9/24/1974 Memorandum (Ex. 62),

page 2-3 (acknowledging the Ford Pinto’s “peculiar” susceptibility to hydrostatic

rupture in rear end impacts).

Ford’s response to Mr. Tafoya’s concerns indicates Ford’s callous

indifference to the explosion risk.7 Rather than encourage efforts to protect Pinto

occupants, Ford management sat Mr. Tafoya down and reminded him that the

government had not identified Mr. Tafoya’s concern. 8/10/1978 Memo-to-File

(Ex. 64). As a result of management’s intervention, “Mr. Tafoya suggested he

would take no further action” to protect Pinto occupants from the risk that the

Pinto’s “pressurized bomb” would severely burn and/or kill them. Id.

6 This condition is sometimes referred to as “hydrostatic rupture”. See https://www.youtube.com/watch?v=6Qbi-YtrjFI. 7 Cf. 4/27/1971 Nixon tapes (Ex.63), page 26 (Ford complains to President Nixon about safety and emissions standards, complaining that “[t]he citizens of the US must be protected from their own idiocy”).


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While the “patchwork” approach allowed the Ford Pinto to pass the

minimum federal standard’s flat barrier crash test, Ford consciously tried to

suppress evidence that the patchwork Pinto was not safer in the real world.

Ford’s Body Testing Department had the “somewhat questionable procedure” of

not issuing a crash test report if the tested vehicle failed to meet FMVSS

requirements. 11/27/1972 Memorandum (Ex. 65), page 2; cf. Copp Trans. (Ex.

3) 11/3/1977, 333:9-335:10 (describing Ford’s “us” and “them” computer system

whereby Ford hid violations of emissions standards from the government,

destroying records in the process).

Ford restricted the scope of its “1977 FMVSS production validation tests

from a full scale program involving approximately 30 vehicles . . . to [just] three

vehicles”. 9/26/1976 Memorandum (Ex. 66) (tentatively dropping Pinto sedan

from test plans). Only two non-prototype sedan/hatchback patchwork Pintos

were tested. 19[7]7-1980 Pinto/Bobcat CRTS Listing (Ex 67) (listing tests 3335

and 3763). Further, Ford’s procedures for prototype testing had been “adopted

as an emergency method” which “resulted in considerable problems in building

representative prototypes . . .” 8/16/1976 Memorandum (Ex. 68). Cf. Randall v.

Goodrich-Gamble Co., 70 N.W.2d 261, 264 (Minn. 1955) (“Dr. Ole Gisvold,

qualified as an expert, testified that Roehrich's experiment was erroneously

conducted and did not include a sufficient number of tests to produce

scientifically accurate results.”).


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Ford knew that, even where a vehicle could pass a controlled moving

barrier crash test8 like the one utilized by the federal standard, “because of broad

load distribution, car-to-car impacts [can result in] a definite vulnerability of the

fuel tank which will cause fires and loss of human life.” 9/2/1970 Memorandum

(Ex. 70); see also 11/19/1979 Memorandum (Ex. 71), page 1 (“From a

comparison of rear (sic) world accident damage vs. barrier test damage, it is

obvious that the real world is more extensive due to the under-ride/over-ride

condition . . .”). Ford knew car-to-car testing is important in assessing real-world

safety, as evidenced by its later implementation of a 50 mile-per-hour car-to-car

crash test criteria for the Ford Escort. 8/11/1982 Car Program Direction Letter

(Ex. 72). Yet, Ford has produced only one 1977-1980 Pinto car-to-car crash test,

conducted at a “moderate” speed of only 26 miles-per-hour. 19[7]7-1980

Pinto/Bobcat CRTS Listing (Ex 67). In that single car-to-car crash test, the

bumper of the bullet vehicle slid underneath the Pinto’s rear bumper and directly

impacted the Pinto’s fuel tank. Report from Crash Test 3763 (Ex. 73). Following

this test, in an apparent effort to protect those tests from public scrutiny, Ford

conducted all of its 1977-1980 Pinto car-to-car crash tests under the cover of its

Office of General Counsel. Cf. Pl.’s Mem. Supp. Mot. Compel (Doc. 81), page 22

8 A moving barrier test consists of a flat wall mounted to a rolling cart which impacts the rear end of a parked vehicle at a certain speed. Because the barrier is flat and rigid, no part of the flat wall can go underneath the tested vehicle’s rear bumper to impact the fuel tank directly. Rather, the collision forces are equally distributed across and through the rear bumper of the car only, unlike real-world car to car collisions. See Frames from Crash Test 4250 Video (Ex. 69).


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(“Ford cannot negate Plaintiff’s warning claim by channeling factual crash test

results through its in-house legal department.”).

Ford also intentionally disregarded real world evidence. In 1979, Ford

conducted a “junk yard survey” “[t]o determine the performance of Ford and

comparative cars in severe accident damage situations.” 10/13/1985 Deposition

of Elmer Rohn (Ex. 74), 7:24-8:3, 9:8-11. When the survey revealed that fuel

tanks located over-the-axle were “seldom disturbed” in rear-end accidents, Ford

abruptly terminated the survey prior to its planned conclusion, presumably

because it did not want to deal with real world proof that alternative designs

were, indeed, safer. Id. 26:13-27:23 (deponent uncertain why junk-yard survey

halted); id. 32:16-24; Photograph of Rohn Exhibit 4 (Ex. 75).9

Moreover, Ford internally conceded that the Ford Pinto was implicated in

more rear-end, fire-accompanied fatalities than Toyota Corollas (over-axle tank),

Volkswagen Rabbits (mid-ship tank), or other vehicles. 11/2/1978 Memorandum

(Ex. 76); see also 12/11/1974 Memorandum (Ex. 77), page 1 (noting the

Corvette’s bladder tank withstood 40-50 psi of hydrostatic pressure, survived

41.1 mph crash test); 3/6/1978 Policy Review Request (Ex. 78), 2d page (1981

9 When Plaintiff traveled to Michigan to review Ford’s “storage box documents”, Plaintiff took the attached photograph of the “March L.A. Salvage Lot Survey Observations” document. As the photograph shows, the document had an “Exhibit Rohn #4” sticker attached to it. However, the version of this document Ford has actually produced, through Xerox, does not have the deposition sticker on it. This discrepancy has not been resolved. Konz Aff. ¶ 99.


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FWD Pinto/Bobcat Replacement Program’s “Fuel tank packaging in front of rear

axle on FWD gives better safety potential.”).

Indeed, in answer to its own internal question “[h]as the problem been

eliminated from the 1979 [Pinto] and forward?”, Ford answered:

The 1979 cars, as in our previous offerings, will meet the federal standard for fuel system integrity. However, unique test conditions which are more severe than those required by the federal standards on certain accident situations can produce fuel system damage sufficient to cause leakage.

6/26/1978 Memorandum (Ex. 79), 6th page. Ford’s qualified answer suggests its

knew that the 1979 Ford Pinto was safe only in the event that it was impacted by

a flat wall moving at 30 miles-per-hour, and not in real world “car-to-car”

collisions. See also 9/25/1974 Memorandum (Ex. 80), page 2 (“CEO feels that

the cost involved in designing to 5 mph above a legislated level [of 30 mph]

would be prohibitive.”). Similarly, Ford’s evasive answer to the question “Did

[Ford] knowingly sell Pintos with unsafe fuel tanks?” suggests it did, in fact, know

that the Pinto was unsafe. 7/13/1978 Memorandum (Ex. 81), page 1 (noting

1977 Pinto models met Federal safety standards, earlier Pintos recalled, and two

barrier tests were successful, but not denying knowledge of the Pinto’s unsafe

tank).

Ford considered making further improvements to the 1979 Ford Pinto.

However, Ford’s concern for its profit margin overrode any concern it had for the

safety of 1979 Ford Pinto occupants:


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We have a dilemma relative to taking design action to upgrade the Pinto either for future models (1979) or to past models (field fix) because the way such action could be construed to further increase our liability. We will continue to monitor the situation carefully, however, at this time we are not inclined to take any specific action for either production or the field.

3/6/1978 Memorandum (82), page 3 (emphasis added).

In keeping with its practice of concealment, Ford provided no warning

about the 1979 Ford Pinto’s susceptibility to fuel fed fires, nor did it share any of

its knowledge regarding the Pinto’s dangerousness. In contrast, it appears Ford

“launch[ed] a program, designed to convince dealers and customers that current-

model Pintos (and Bobcats) are not involved in the fire problem”. 7/7/1978 Draft

Presentation to the Board (Ex. 83), 7th page; see also; 1979 Pinto Ad (“Of

course, all ’79 model Pintos, like the ‘77s and ‘78s before it, have redesigned fuel

system features, including a longer filler pipe, plus gas tank shield”). Moreover,

Ford publically represented that it would spare no expense in fixing the Pinto’s

fire defect. “Ford: Road Ahead” article (Ex. 85), page 42 (“The lawyers would

shoot me for saying this, but I think there’s some cause for the concern about the

car. I don’t even listen to the cost figures – we’ve got to fix it.” (emphasis

added)).

At the same time, Ford famously recalled the 1971-1976 Ford Pinto. See

6/6/1978 Memorandum (Ex. 86), pages 1-3 (noting Ford’s own tests yielded

similar results to those supporting the Government’s defect determination and


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describing longer filler pipe and plastic shield to be used in recall). However, as

at least one ex-Ford employee noted:

The shield used in the recall campaign was basically to prevent bolt puncture from the differential in certain crash conditions. It was probably effective in preventing bolt puncture in crash tests with speeds a few mph over the required 30 and would be ineffective against hydrostatic produced failure.

11/14/1980 Dewey Younger Affidavit (Ex. 87), page 2-3: see also 8/17/1992

Deposition of Thomas Feaheny (Ex. 88) 110:3-14 (“[The shield] actually

decreased the crush space for the tank by taking up some of the space of the

shield to a very minor degree, but actually it reduced the hydrostatic rupture

resistance and deteriorated it . . I regarded the fix as marginal and mostly

cosmetic to meet the public relations concerns about the allegation against the

Pinto.”). Indeed, while the public was led to believe that the recall made the Ford

Pinto safer, “[a]n implied concern . . . with nearly everyone [Ford] talked to [within

Ford] is the effectiveness of the fix!” Cover Note on 7/11/1978 Memorandum

(Ex. 89); see also 7/18/1978 NHTSA Letter (Ex. 90) (“We are disappointed to

learn that Ford was prepared to go ahead with the recall and correction based

solely upon a single barrier crash test . . .”). As Plaintiff Jeff Hinkemeyer

observed:

I seen that they recalled the earlier models and fixed whatever that issue was so they wouldn’t explode like they did before . . . So whatever problem they had from blowing up I thought that it was fixed because why else do you recall a car? You fix whatever problem it had. . . . I just trusted what Ford said and I guess I was – whatever they fixed, their little fix or whatever they really even were, didn’t work . . . . [because it] still blew up.


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August 14, 2014 Deposition of Plaintiff Jeffrey Hinkemeyer (Ex. 91), 85:9-86:13.

In fact, in the decades leading up to the May 30, 2009 Pinto fire, Ford

received repeated and renewed notice that Pinto occupants were still being

preventably incinerated. See, e.g., Def.’s Ans. Pl.’s Interrog. 11 (Ex. 36), 9th-

14th page (listing 244 other Pinto fire victims). As the May 30, 2009 Pinto fire

grew closer and closer, Ford conducted further crash tests under the guise of

attorney work product which (presumably) reaffirmed and further established the

dangerousness of the Ford Pinto’s design.

This would not be the first Ford Pinto case in which punitive damages were

alleged. As the Court in Grimshaw v. Ford Motor Company addressed:

Through the results of the crash tests Ford knew that the Pinto's fuel tank and rear structure would expose consumers to serious injury or death in a 20 to 30 mile-per-hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits. Ford's institutional mentality was shown to be one of callous indifference to public safety. There was substantial evidence that Ford's conduct constituted “conscious disregard” of the probability of injury to members of the consuming public. . . There was testimony10 . . . that Harold Johnson, an Assistant Chief Engineer of Research, and Mr. Max Jurosek, Chief Chassis Engineer. . . admitted awareness of the defects but told [Harley Copp] they were powerless to change the rear-end design of the

10 See Copp Trans. (Ex. 3), 27:4-28:16 (“[Ford engineer Harold Johnson] told me the design problems on the Pinto . . . and he specially mentioned the rear end. He said ‘it’s the same old story. The car is styled, and we have to package everything in it,’ and . . . I asked about the fuel tank and spare tire arrangement. That’s always a problem on a car of this type. He said, ‘Well, we have got one, but it’s not very good,’ . . . ‘What can I do? You know how it is, Harry.”)


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Pinto. It may be inferred from the testimony . . . that the two engineers had approached management about redesigning the Pinto or that, being aware of management's attitude, they decided to do nothing. . . .

119 Cal.App.3d 757, 813-14 (Cal.Ct.App. 1981) (“While much of the evidence

was necessarily circumstantial, there was substantial evidence from which the

jury could reasonably find that Ford’s conduct . . . . constitute[d] corporate

malice.”).

B. Procedural Posture in this Matter

Plaintiff’s original Complaint contained a continuing duty to warn claim.

Complaint (Doc. 1), ¶¶ 26 (“At all times material hereto, Defendant Ford had a

duty to warn of any safety hazard in the Pinto.”), 33 (“Defendant Ford breached

its duty to warn of safety hazards presented in the Pinto.”). Ford then moved to

dismiss the entire Complaint, including Plaintiff’s continuing duty to warn claim.

Def.’s Mot. Dismiss (Doc. 8); see also Def.’s Mem. Supp. Mot. Dismiss (Doc. 10)

(“Equally troubling, by alleging that Ford’s duty to warn extends to ‘all times

material hereto,’ Plaintiff appears to allege that Ford owed certain post-sale

duties to warn.”). In response, Plaintiff pointed out that:

The only question before the court is whether Plaintiff's warning claim is factually plausible. Considering: (1) Defendant has had more than 35 years' worth of actual or constructive knowledge of the Ford Pinto's defects, (2) the hidden nature of the Ford Pinto's defect, (3) the seriousness of injuries, and likelihood of death, associated with fuel fed fires, (4) that Defendant continues in the same line of business and continued selling Ford Pintos even after selling Plaintiff's Ford Pinto, and (5) that Ford voluntarily undertook an ineffectual Ford Pinto recall campaign, Plaintiff's warning claims are more than factually plausible.


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Pl.’s Mem. Opp. Def.’s Mot. Dismiss (Doc. 15), pages 31-33; cf. Hodder v.

Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988). Plaintiff also

filed and served an Amended Complaint. (Doc. 14); see id. ¶¶ 35, 73, 84, 86. In

response, Ford abandoned its efforts to dismiss Plaintiff’s continuing duty to

warn claim. See Def.’s Notice No Reply (Doc. 18) (“On May 24, 2013, Ford’s

counsel spoke with Plaintiff’s counsel and notified him that Ford agreed with

Plaintiff that filing of the Amended Complaint had rendered Ford’s Motion to

Dismiss Plaintiff’s Complaint moot and that Ford would be filing an Answer to

Plaintiff’s Amended Complaint.”). Thus, until recently, it appeared from the

record that the parties’ agreed regarding the sufficiency of Plaintiff’s claims as set

forth in Plaintiff’s Amended Complaint.

As discovery proceeded,11 Plaintiff learned of evidence relating to Ford’s

knowledge and ability to provide warnings, including post-sale warnings. Among

this evidence were the withheld “litigation” crash test materials which were the

subject of Plaintiff’s Motion to Compel Production of Crash Test Materials

Withheld by Ford (Doc. 79). See id., page 2 (“As alleged by Plaintiff,

notwithstanding its actual and/or constructive knowledge, Ford ‘failed to warn or

otherwise advise the public’ of the risk, despite its continuing duty to warn.”).

When it filed its response, Ford did not claim Plaintiff failed to allege a

11 Plaintiff’s Rule 26(a)(1) Initial Disclosures advised Ford that “Plaintiff intends to assert a claim for punitive damages, in accordance with Minn. Stat. §§ 549.191 and 549.20.” Pl.’s Initial Discl. (Ex. 96), page 9.


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continuing duty to warn. Cf. Def.’s Mem. Opp. Pl.’s Mot. Compel (Doc. 89). It

was not until August 1, 2014 430 days after it had abandoned its efforts to

dismiss Plaintiff’s continuing duty to warn claim that Ford, in a transparent

effort to limit Plaintiff’s discovery, proffered the duplicitous argument that Plaintiff

had failed to allege the claim Ford earlier tried to dismiss. Def.’s Objection (Doc.

102), page 14.

The original Scheduling Order set December 15, 2013 as the deadline for

motions to amend the complaint, except with regard to the deadline to seek leave

to add punitive damages. (Doc. 83); see also Second Am. Sched. Order (Doc.

139) (setting August 1, 2015 as deadline for motion to add punitive damages). At

no time leading up to December 15, 2013 did Ford allege (despite earlier trying to

dismiss it) that Plaintiff had not pled a continuing duty to warn.

LAW

“[T]he complaint merely serves to put the defendant on notice and is to be

freely amended or constructively amended as the case develops, so long as

amendments do not unfairly surprise or prejudice the defendant.” Toth v. USX

Corp., 883 F.2d 1297, 1298 (7th Cir. 1989) cert. denied 493 U.S. 994; see also

Fed. R. Civ. P. 15.

“The goal of [the amendment rules] is to promote the objective of deciding

cases on the merits rather than on the relative pleading skills of counsel.” Am.

Family Mut. Ins. Co. v. Hollander, 705 F.3d 339, 348 (8th Cir. 2013) (citing

Foman v. Davis, 178, 181-82 (1962)); see also McHenry v. Ford Motor Co., 269


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F.2d 18, 25 (6th Cir. 1959) (“The courts give rules [regarding amendment of

pleadings] a liberal construction, always trying where possible to see that cases

are decided on their merits.”).

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

Foman, 271 U.S. at 181-82 (emphasis added). Where a party makes a

“colorable showing” in support of its amendment, and the amendment is not

frivolous the court should permit amendment of the pleadings. See Karl’s Inc. v.

Sunrise Computers, Inc., 901 F.2d 657, 660 (8th Cir. 1990). “[D]elay alone is not

reason in and of itself to deny leave to amend. . . The delay must have resulted

in unfair prejudice to the party opposing amendment.” Sanders v. Clemco Indus.,

823 F.2d 214, 217 (8th Cir. 1987) (citations omitted).

In analyzing [a party’s] Motion to Amend, [courts] apply the constraints of Rule 12(b)(6), Federal Rules of Civil Procedure, and accept as true, in a hypothetical sense, all of the factual allegations contained in the proposed amendments, and view those allegations in a light most favorable to [the moving party].


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Upsher-Smith Lab., Inc. v. Mylan Lab., Inc., 944 F.Supp. 1411, 1442 (D.Minn.

1996) (emphasis added); see also Air Prod. and Chem., Inc. v. Eaton Metal

Prod., Co., 256 F.Supp.2d 329, 332 (E.D.Penn. 2003) (“the proposed

amendment . . . should not be rejected unless it is clear that the plaintiff is not

entitled to any relief thereunder.”); Becker v. Univ. of Nebraska at Omaha, 191

F.3d 904, 908 (8th Cir. 1999) (“Likelihood of success on the new claim or

defenses is not a consideration for denying leave to amend unless the clearly

frivolous.”).

“The burden is on the party opposing the amendment to show such

prejudice.” Beeck v. Aquaslide “N’ Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977);

see also Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 694

(8th Cir. 1981) (“[E]ven where some prejudice to the adverse party would result if

the motion to amend were granted, that prejudice must be balanced against the

hardship to the moving party if it is denied.”).

“A court abuses its discretion when it denies a motion to amend a

complaint unless there exists undue delay, bad faith, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the non-

moving party, or futility of the amendment.” Popoalii v. Correctional Med. Serv.,

512 F.3d 488, 497 (8th Cir. 2008); see also Hanson v. M & I Marshall and Ilsley

Bank, 737 F.Supp.2d 988, 990 (D.Minn. 2010) (“[D]enial of leave to amend

pleadings is appropriate only in those limited circumstances . . .” (quoting

Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001)).


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A. Minnesota’s Two-Step Process for Obtaining Award of Punitive Damages

“Punitive damages are intended to serve as a disincentive to corporations

that might be tempted to sacrifice public safety for profits.” M. Dennison & W.

Freedman, Punitive Damages in Products Liability Litigation, 54 Am. Jur. Trials

443 (May 2014) § 6 (citing Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 740

(Minn. 1980) (“the decision not to use flame-retardant cotton flannelette was

merely an economic one for the benefit of [the defendant].”)); see also Ulrich v.

City of Crosby, 848 F. Supp. 861, 867 (D. Minn. 1994) (“Punitive damages are

intended to . . . make an example of a defendant’s wrongdoing . . .”).

Minnesota imposes a two-step process for obtaining an award for punitive

damages. Minnesota law does not allow plaintiffs to plead a claim for punitive

damages in the initial complaint. Minn. Stat. § 549.191. Rather, after suit is

commenced, a party may bring a motion to amend the complaint to add a

punitive damages claim. Id. The second step is actually proving, to the trier of

fact, that punitive damages are warranted. Minn. Stat. § 549.20, Subd. 4.

1. The Standard for Allowing Punitive Damages in the Complaint

The standard for allowing punitive damages in the complaint requires only

a prima facie showing of a deliberate disregard for the rights or safety of others.

Minn. Stat. § 549.191.

On a motion to amend the complaint to assert a claim for punitive damages, however, “[a] plaintiff need not demonstrate an entitlement to punitive damages per se, but only an entitlement to allege such damages.” [Berczyk v. Emerson Tool Co., 291


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F.Supp.2d 1004, 1008 (D.Minn. 2003)]. At this stage, [a plaintiff] need only offer evidence which, if unrebutted, would constitute clear and convincing evidence of deliberate disregard for the rights or safety of others. Swanlund v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Minn.Ct.App.1990). “[A] prima facie case simply means one that prevails in the absence of evidence invalidating it.” Tousignant v. St. Louis Cnty., 615 N.W.2d 53, 59 (Minn.2000) (citation omitted). In evaluating [a plaintiff]'s motion, “the Court makes no credibility rulings, and does not consider any challenge, by cross-examination or otherwise, to the plaintiff's proof.” Berczyk, 291 F.Supp.2d at 1008 n. 3.

In re Lavaquin Prod. Liab. Litig., MDL No08-1943, 2010 WL 7852346, at *6

(D.Minn. Nov. 9, 2010) (distinguishing Berczyk, where motion supported only by

“argument, rhetorical invective, conclusory surmise, and hearsay stacked upon

hearsay”); see also Olson v. Snap Prod. Inc., 29 F.Supp.2d 1027, 1033 (D.Minn.

1998). (In ruling upon the propriety of a claim for punitive damages, Court does

not act as fact finder, but only determines whether the Plaintiff’s evidence, if

unrebutted, would support an award of punitive damages in his favor); Gamma-

10 Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d 1244, 1256-57 (8th Cir.

1994) (applying Minnesota law and holding denial of leave to add punitive

damages was abuse of discretion where trial court weighed evidence, claim not

clearly frivolous, and defendant on notice of intent to pursue punitive damages)

cert. denied 513 U.S. 1198 (1995).


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2. The Standard for Proving Punitive Damages at Trial

After plaintiffs have been allowed to amend their complaint to add a claim

for punitive damages, they must show at trial “clear and convincing evidence that

the acts of the defendant show deliberate disregard for the rights or safety of

others.” Minn. Stat. § 549.20, Subd. 1. The “clear and convincing” requirement

is met where “the evidence is sufficient to permit the Jury to conclude that it is

‘highly probable’ that the defendant acted with deliberate disregard to the rights

or safety of others”. Ulrich, 848 F. Supp. at 868 (applying Minnesota law) (citing

Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 659 (Minn. 1987)). A

defendant has acted with deliberate disregard for the rights or safety of others if

the defendant has knowledge of facts or intentionally disregards facts that create

a high probability of injury to the rights or safety of others and: (1) deliberately

proceeds to act in conscious or intentional disregard of the high degree of

probability of injury to the rights or safety of others; or (2) deliberately proceeds to

act with indifference to the high probability of injury to the rights or safety of

others. Minn. Stat. § 549.20(b)(1) and (2).

3. Punitive Damages in Products Liability Cases

Punitive damages are commonly pled in products liability cases, as the

following examples show:

Snap Prod. Inc., 29 F.Supp.2d at 1039 (leave to add punitive damages warranted where prima facie evidence demonstrated “[The Defendant] continued to market a product which was mislabeled so as to mislead the public into believing that no explosive hazard was present.”).


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Order, Anderson v. General Motors, Case No. BC116926 (Supp. Ct.

Cal. (Super. Ct. Cal. Aug. 26, 1999) (Exhibit 92) (reducing punitive damage award to $1,090,000.00 where “defendant’s fuel tank was placed behind the axle on automobiles of the make and model involved here, in order to maximize profits, to the disregard of public safety.”).

Ford Motor Co. v. Sasser, 618 S.E.2d 47, 56-59 (W.V.Ct.App. 2005)

(evidence sufficient to show “entire want of care”, supporting punitive damages, where test failures put Ford on notice of numerous pre-production problems, left unresolved, where Ford chose not to send warnings or adopt system to alert drivers of problem).

Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 555-75 (Ind.Ct.App. 1999) (government report declining further investigation did not preclude punitive damages where Ford withheld damning test results).

Leichtamer v. Am. Motors Corp., 424 N.E.2d 568, 580 (Ohio 1981) (“[p]unitive damages . . . may be awarded where the manufacturer’s testing and examination procedures were so inadequate as to manifest a flagrant indifference to the possibility that the product might expose consumers to unreasonable risks of harm.”).

Wangen v. Ford Motor Co., 294 N.W.2d 437, 462 (Wisc. 1980) (facts sufficient to support punitive damages claim where Ford knew of defects in 1967 Ford Mustang’s fuel system but “deliberately chose not . . . to disclose the defect to the public by issuance of warnings because Ford wanted to avoid paying the costs . . . and wanted to avoid the accompanying bad publicity.” (emphasis added)).

Romo v. Ford Motor Co., 99 Cal.App.4th 1115, 1145 (Cal.Ct.App. 2002) (“In light of this credible evidence, it is frivolous to contend, based on [Ford]’s excerpts from the record, that ‘Ford’s [design decision] – was not, as a matter of law, a “vile” or “loathsome” act that can support an award of punitive damages.’”).

Gen. Motors Corp. v, Moseley, 447 S.E.2d 302, 311-12 (Ga.Ct.App. 1994) (“The evidence of a knowing endangerment of all who may come in contact with one of the 5,000,000 GM full-size trucks still on the road [which GM knew could leak fuel on impact], motivated by


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economic benefit, was sufficient to support an award of punitive damages.”) abrogated on other grounds by Webster v. Boyett, 496 S.E.2d 459 (Ga. 1998).

Buell-Wilson v. Ford Motor Co., 141 Cal.App.4th 525, 559-60 (Cal.Ct.App. 2006) (“The jury rejected the testimony of Ford’s experts, as it was entitled to do . . . Ford’s assertion that punitive damages are not allowed unless all experts agree there was improper design decisions is unavailing. If such an assertion were true, punitive damages would never be allowed in cases where the defendant simply had an expert who disagreed with the plaintiff’s expert.”) remanded for further consideration 550 U.S. 931.

Fravel v. Ford Motor Co., 937 F.Supp.2d 651, 656 (W.D.Virg. 2013)

(“Fravel has alleged that Ford had actual knowledge of a design defect; specifically, the propensity of vehicle equipped with the ETS system to experience unintended acceleration. Fravel further alleges that, despite knowledge of this risk of substantial harm, Ford consciously chose to equip and sell the vehicle without any brake override system or warning to the consumer public. If such facts are true, that would be sufficient to find that Ford acted with the requisite reckless indifference or conscious disregard to the injury it was aware would probably result from its conduct. As such . . . Fravel has plead the facts . . . with sufficient particularity to state a plausible claim for [willful or wanton negligence].” (emphasis added)).

B. Amendment to Amplify Claims

1. Procedure

Except where an amendment is made early in the case, a party may

amend its pleadings only with the opposing party’s written consent or the Court’s

leave, and “[t]he court should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a). When a motion to amend a complaint is made “after the deadline

for amending pleadings expired, the ‘good cause’ standard of Rule 16(b)

applies”. Birchwood Lab., Inc. v. Battenfeld Tech., Inc., 762 F.Supp.2d 1152,


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1154 (D.Minn. 2011) (finding good cause where party diligently prepared claims

and pursued discovery to uncover and confirm facts necessary to satisfy

heightened pleadings standard); but see Fragola v. City of Saint Paul, Civil No.

10-4718 ADM/TNL, 2012 WL 28120, at *2-3 (D.Minn. Jan. 5, 2012) (despite fact

plaintiff “offered no ‘good cause’” to amend complaint, but was unaware of

pleading defect until defendant’s motion for summary judgment, leave granted

because “courts are required to ‘freely give leave [to amend] when justice so

requires’”).

“The good cause standard is not applied to an untimely motion to amend

out of a devotion to formalism; rather, it is designed to foster timely and efficient

resolution of disputes and ensure accessibility to the courts.” Target Corp. v.

LCH Pavement Consultants, LLC, 960 F.Supp.2d 999, 1006 (D.Minn. 2013)

(denying motion to amend where moving party “has made no argument as to

good cause whatsoever.”).

“[G]ood cause exists and the motion to amend should be granted where,

as here, discovery is still open and no dispositive motions have been filed.”

Birchwood Lab., 762 F.Supp.2d at 1156 (“Any claim of prejudice based on the

need for additional discovery is greatly diminished where the claim to be added

overlaps with some of the claims already pled, as is the case here.”); see also

Wuchko v. Storlie, Civil No. 09-1236 (MJD/AJB), 2010 WL 5652292, at *3

(D.Minn. Dec. 1, 2010) (good cause to amend where (1) while complaint did not

use “requisite language”, was nevertheless suggestive, (2) defendant anticipated


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amended claim, (3) no prejudice, and (4) amendment permitted adjudication on

merits); In re Lutheran Broth. Variable Ins. Prod. Co. Sales Prac. Litig., No. 99-

MD-1309 (MAP), 2002 WL 31371945, at *6 (D.Minn. Oct. 7, 2002) (plaintiff acted

“swiftly and diligently” in wake of unforeseen litigation developments, thereby

demonstrating good cause to amend complaint); E.E.O.C. v. Hibbing Taconite

Co., 266 F.R.D. 260 (D.Minn. 2009) (finding good cause to amend where

defendant realized, after reviewing plaintiff’s disclosures, that additional defenses

justified); Silva v. Metro. Life Ins. Co., No. 13-2233, 2014 WL 3896156, at *6-7

(8th Cir. Aug. 7, 2014) (good cause shown where plaintiff “received additional

information” regarding issue of notice).

An amended complaint that “merely amplifies” a parties claims should be

allowed. See Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997)

(quoting Gamma 10 Plastics, 32 F.3d at 1256). Where an omission from the

pleadings was an innocent mistake, amendment of the pleadings should be

allowed. See Cambridge Mut. Ins. Co. v. Patriot Mut. Ins. Co., 323 F.Supp.2d

108, 110 (D.Me. 2004); (mistaken interpretation of Stipulation of Dismissal

warranted amended third-party complaint despite “distinct imposition on the

Court and opposing counsel”).

2. Law on Post-Sale Warning Claims

“When a manufacturer of a mass produced, widely distributed product

becomes aware that there is a danger associated with the product creating a risk

of serious injury or death, the manufacturer may have a duty to take reasonable


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steps to notify users of that danger.” McDaniel v. Bieffe USA, Inc., 35 F.Supp.2d

735, 742-43 (D.Minn. 1999) (“That the potentially ineffective product at issue

here was one designed and used specifically to protect the cyclist's life compels

this Court to conclude that ‘special’ circumstances are present in this case which

justify the imposition of a duty to warn. Thus, assuming it had adequate notice of

the alleged danger, Bieffe had a duty to take reasonable steps to alert the public

of the risks associated with misuse of the velcro strip.”); see also Gardner v.

Brillion Iron Works, Inc., Civil No. 11-3528 (JRT/LIB), 2014 WL 639960, *11-12

(D.Minn., Feb. 19, 2014) (where defendant knew of hidden danger of explosion

causing serious injury, continued to sell product, and “understood the ‘right’ thing

to do was to attempt to inform all owners and users” of the danger, summary

judgment on post-sale warning claim properly denied); T.H.S. Northstar Assoc. v.

W.R. Grace and Co., 66 F.3d 173, 177 (8th Cir. 1995) (under Minnesota law,

continuing duty to warn existed where manufacturer insisted product safe to use,

became aware over time of likelihood of serious injury, continued to sell related

products, and undertook duty to warn users of post-sale hazards).

In Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988), cert. denied, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989), the supreme court stated that the “continuing duty to warn arises only in special cases.” The important factors in Hodder were as follows: (1) the seller either knows or reasonably should know that the product poses a substantial risk of harm; (2) the product creates a serious risk of injury or death; (3) the company remains in the business, even if it does not continue to sell the specific product in question; and (4) the company undertook a duty to warn of the dangers presented by the product. 426 N.W.2d at 833. While these factors are specific to Hodder, there may be


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other “special circumstances” that will justify a post-sale failure to warn instruction.

4 Minn. Prac., Jury Instr. Guides – Civil CIVJIG 75.40 (5th ed.) (emphasis

added).

ANALYSIS

A. Evidence of Ford’s Disregard for the Safety of Ford Pinto Occupants Supports a Claim for Punitive Damages and Justifies Amendment of the Complaint

Although Plaintiff need only make a prima facie showing of Ford’s

disregard for Pinto occupants’ rights and personal safety in order to establish the

right to plead punitive damages in the Complaint, the record in the instant case

shows there is overwhelming evidence to support Plaintiff’s punitive damages

claim.

The evidence shows that Ford did not want to take the time, or spend the

money, to make a safe product. Ford knew that its scheme for designing the

Pinto would result in preventable defects, and preventable injury. Rather than

encourage its engineers to protect the public, Ford engaged in efforts to

suppress their concerns, turning a blind eye to public welfare. Ford knew safer

fuel system designs would prevent needless burn injury. Knowledge in the field,

indeed Ford’s own engineers, warned Ford against using the design it employed

for the Pinto. Yet, the evidence shows that Ford ignored these exhortations. At

the expense of public safety, Ford rushed the Pinto’s unsafe design into


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production, despite its knowledge that fires could occur in collisions as low as

17.8 miles-per-hour.

When given the opportunity, in the face of FMVSS 301, to fix the problem,

Ford did the opposite, using the minimum federal standard as an excuse for

failing to take genuinely effective measures which would prevent needless injury

in real-world accidents. Rather than fix the problem, Ford only adopted

“cosmetic” design changes, leaving the Pinto’s fuel tank (i.e., “pressurized

bomb”) in a particularly vulnerable crush space. Ford’s use of the term

“patchwork” to describe changes it made to the Pinto demonstrates Ford’s

indifference to making the Pinto safe in the real world. Cf. 9/11/1974

Memorandum (Ex. 93) (“From a cost effectiveness standpoint, the analysis of

rear end collisions are really not worth much effort.”).

Ford adopted a policy of minimizing its efforts to comply with an already

minimal standard, lest it should protect the American citizens “from their own

idiocy.” Ford’s crash tests and internal documents reveal Ford’s knowledge that

the Pinto is not only susceptible to underride and resulting crush of the fuel tank

in real-world accidents, Ford’s design choices actually encourage such

susceptibility. Ford knew that its design changes meant little in any rear-end

collision scenario other than a flat wall colliding into a Pinto at 30-35 miles-per-

hour. Indeed, Ford has only produced one car-to-car crash test of a patchwork

Pinto. When crash test 3763 revealed just how vulnerable the patchwork Pinto’s

rear-mounted fuel tank is to direct impact when underride occurs, it is reasonable


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to infer Ford adopted a new policy of funneling patchwork Pinto car-to-car crash

tests through its legal department, to ensure secrecy of the results.

If its own crash tests and engineering judgment were not enough to put

Ford on notice of the high probability of injury, Ford’s actual knowledge that Pinto

passengers were in fact being burned alive in preventable post-collision fuel fed

fires certainly did. Indeed, Ford has disclosed a non-exhaustive list of 244

Pinto deaths and injuries, several of which occurred in 1977-1980 Pintos.

Throughout the 1970s, 1980s, 1990s, and 2000s, Ford knew, and was

repeatedly reminded, that Pinto fuel tanks would burst open in real-world

accidents, ejecting a cloud of volatile gasoline vapor around unsuspecting Pinto

occupants.

Every time a Pinto occupant was burned, regardless of the severity of the

accident, Ford was faced with notice that its design choices were, in fact,

dangerous. Each tragic burn injury presented Ford with the option of learning

from its mistakes and taking steps to prevent subsequent injuries or death. Each

post-collision fire presented Ford with the choice of either, 1) taking action to

prevent further harm or, 2) defending its defective design knowing full well that,

since Pintos remained on the road, other unsuspecting Pinto occupants would

surely be unnecessarily catastrophically injured. Each time, Ford did nothing

except try to avoid accountability. Ignoring all the crash tests, engineering

concerns, and other evidence, on at least two-hundred-forty-four separate


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occasions, Ford disregarded any concern that another preventable injury may

occur.12

When Ford went out into real world junk yards and determined over-axle

fuel tank designs were indeed safer, it closed its eyes to this evidence. When its

post-sale crash testing confirmed the dangerousness of the Pinto’s design, it

concealed them from public scrutiny under a claim of privilege. Indeed, based on

its privilege log, it is reasonable to infer that Ford funneled the most probative,

car-to-car crash tests through its legal department in a deliberate effort to avoid

accountability for the danger it knew the Pinto presented.

Internally, Ford knew “the problem” was not “eliminated from the 1979”

Pinto. Ford did not warn the public, or share its knowledge of the Pinto’s

dangerous lack of fuel system integrity. Quite the opposite, despite its

knowledge that its recall changes were ineffective, Ford willfully represented to

the public that it had fixed the problem, without any concern for cost. Knowing

12 It is anticipated that Ford will argue these other incidents are inadmissible, as Plaintiff cannot show substantial similarity to the May 30, 2009 Pinto fire. Cf. Berczyk, 291 F.Supp.2d at 1014. Any inability to show substantial similarity results from Ford’s withholding of contextual evidence regarding the 244 Pinto burn injuries Ford listed in response to Plaintiff’s Interrogatory 11 (Ex. 36). Moreover, the relevance of these other Pinto fires is not that they replicate the May 30, 2009 Pinto fire. Rather, the relevance is they show Ford repeatedly learned that Pintos explode in a variety of accident scenarios, yet Ford chose only to address the Pinto’s susceptibility to fuel leakage when impacted by a flat moving wall. Cf. Smith v. Ingersoll Rand Co., 214 F.3d 1235, 1249-50 (10th Cir. 2000) (“The other acts evidence allowed the jury to make the reasonable inference that Ingersoll-Rand persevered in its refusal to place mirrors on its machines despite numerous accidents potentially caused by poor visibility.”).


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that it would face civil liability for the Pinto’s dangerous design, it focused not on

eliminating the injuries which would lead to lawsuits, but rather, Ford focused its

attention on concealing the Pinto’s dangerousness. Simply stated, Ford not only

ignored the high probability of preventable burn injury, it actively covered up the

hazard. Indeed, Ford has been maintaining the cover-up for more than 35 years,

and continues to do so.

Ford’s motivation for its reprehensible conduct was its own exclusive

economic interest, to the physical and financial detriment of the public at large.

The evidence shows that Ford put a price-tag on safety, one it expected

everyone else to pay. Ford valued human life and limb at $200,000.00, at most,

and decided society should pay this expense for the sake of Ford’s profit margin.

In its callousness, Ford apparently determined it would be cheaper to pay off

litigants than to do the right thing. Cf. 3/8/1971 Memorandum (Ex. 94), 6th page

(advocating repeal of the Federal safety standards and replacement with a

scheme by which Ford would “pay a death benefit averaging $100,000.00 for any

person killed while a driver or passenger in [a Ford] vehicle during the first five

years or 50,000 miles whichever occurs first.”); see id., 8th page (“$100,000 per

life adds up to a formidable expenditure. If we pursue the program shouldn’t we

try to sell it at a lesser figure like $25,000 or $50,000?”). Indeed, the “only”

benefit of “safety expenditures”, in Ford’s eyes, was reduced insurance

premiums/costs. 11/22/1967 Memorandum (Ex. 95), page 1; see also id. page 3


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(internal agreement that Ford should determine the “economic value of safety

features” as a whole).

Knowing that Pinto occupants would continue to be incinerated, Ford

decided to let them burn. No moral society would ever condone such behavior.

A claim for punitive damages in this case presents the opportunity to put

manufacturers on notice that they may not hide the danger to which their choices

subject the public. It will put manufacturers on notice that they may not simply

ignore a known hazard in the hope that it will go away on its own, unremediated.

It will reaffirm the message laid down in cases like Grimshaw, that it is never

okay to needlessly endanger the public. In contrast, if a claim for punitive

damages is disallowed, the message will be that it is okay to bury the truth, for

the sake of profit and reputation, and at the expense of public safety. If Ford gets

away with incinerating Jeff Hinkemeyer in this case, even more people will likely

be preventably injured.

Plaintiff is not asking this Court to hold Ford liable for punitive damages.

Plaintiff merely asks the Court to permit the jury to determine whether Ford’s

disregard for public safety was deliberate, merely negligent, or somehow

reasonable. It is about letting the jury decide whether it is acceptable to put the

public at risk for the sake of profit. It is about letting the finder of fact confirm that

no manufacturer may gamble with citizens’ life and limb for its own gain.


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B. Allowing Plaintiff to Amplify His Post-Sale Warning Claim Will Ensure Trial on the Merits

1. Plaintiff’s Ongoing Duty to Warm is Viable

“One engaged in the business of selling or otherwise distributing products

is subject to liability for harm to persons or property caused by the seller’s failure

to provide a warning after the time of sale or distribution of a product when a

reasonable person in the seller’s position would provide such a warning.” 4A

Minn. Prac., Jury Instr. Guides – CIVJIG 75.40 (5th ed.) (quoting Restatement

(Third) of Torts: Production Liability § 10 (1997)).

Many of the same facts which support Plaintiff’s claim for punitive

damages also support Plaintiff’s post-sale warning claim. See Hammes v.

Yamaha Motor Corp., Civil File No. 03-6456 (MJD/JSM), 2006 WL 1195907, at

*13 (D.Minn. May 4, 2006) (“The Hodder factors all turn on direct indifference to

a known problem and to serious bodily injury.”); Target Corp., 960 F.Supp.2d at

1011 (granting leave to amend to add punitive damages claim “based on its

fraud claim alleged in its Second Amended Complaint”). As Plaintiff’s proposed

Amended Complaint clarifies and alleges, (1) the risks caused by Ford’s failure

to warn are serious and devastating, (2) Ford’s pre and post-sale activities gave

it unique knowledge of the Pinto’s hidden hazard (3) Ford concealed its

knowledge for more than 35 years, (4) Ford kept selling automobiles, including

Pintos, after the subject 1979 Pinto left its control, (5) Ford maintained channels

through which it could have provided warnings and/or otherwise shared its


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knowledge regarding the Pinto’s dangerousness, (6) Ford made inaccurate

representations about the safety of Ford Pintos, including an ineffectual recall

campaign and misleading advertisements, thereby undertaking a duty to warn,

but (7) Ford failed to exercise its power to save Jeff Hinkemeyer from injury,

thereby breaching its duty to the occupants entrusted to its care. See Pl.’s

Proposed Second Am. Complaint (Ex. 1) page 19-25.

While Minnesota recognizes a continuing duty to warn only in “special

cases”, Ford’s active and ongoing concealment of a deadly hidden hazard

undoubtedly gave rise to such a duty. Therefore, Plaintiff’s claim is not clearly

futile, and Plaintiff should be allowed to amplify his claim.

2. Good Cause Exists to Amplify the Post-Sale Warning Claim, as Ford’s Duplicitous About-Face Created an Extraordinary Circumstance

The meaning of “good cause” can be exemplified by Ford’s July 30, 2014

request for an upward departure from Local Rule 72.2(c)(1)’s 3500 word limit

(Doc. 99). The only “good cause” showing made by Ford therein was the vague

and conclusory statement:

[t]he Order presents numerous questions of important legal significance bearing on the work product doctrine and attorney-client privilege which cannot be adequately addressed in 3500 words. Good cause exists for this request in light of the complexity and number of issues to be presented.

Id.; see also 8/1/2014 Order Granting Additional Word Count (Doc. 100).

Plaintiff’s proposed post-sale warning amendments are of “important legal

significance”. These claims stand for the proposition that Ford could not conceal


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its knowledge of the Pinto’s unreasonable dangerousness from the unsuspecting

public. The post-sale warning claim was inherent to the Court’s July 18, 2014

Order compelling production of withheld “litigation” crash tests which (as the

Gibson court found) were relevant to Ford’s failure to provide post-sale warnings.

Indeed, the fact that Ford made its new-found ‘not pleaded’ argument in the

context of a heated discovery dispute suggests the proposed amendments are of

“important legal significance” to the scope of ongoing discovery. Indeed, Ford

has still not produced a 30(b)(6) deposition designee or the withheld “litigation”

crash tests. The Complaint should be amended for the “good cause” purposes of

both preventing Ford’s continued discovery evasion and ensuring Plaintiff has the

opportunity to present evidence supporting the claim to the jury. Cf. Pl.’s Mot.

Stay Expert Discl. (Doc. 125).

The post-sale warning claim is clearly complex and requires “a number of

issues to be presented”. While issues of proof go beyond the scope of notice

pleadings, Ford has made the implicit and new-found accusation that the post-

sale warnings claims are not ‘adequately addressed’ in the current Complaint.

Thus, by Ford’s own version of the “good cause” standard, leave to amend

should be granted.

Further, Ford’s duplicitous contention that a claim it previously tried to

dismiss was actually never alleged in the first place is sufficient “cause” for

Plaintiff’s request for leave to amplify his post-sale warning claims. By agreeing

(more than a year and a half ago) that its effort to dismiss Plaintiff’s post-sale


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warning claim was “moot”, Ford invited Plaintiff to make no further changes to his

ongoing warnings allegations. Deviously, Ford waited until after the deadline to

amend the Complaint to make the new accusation that the Complaint does not

give notice of the claim Ford had previously attempted to dismiss. Cf. Fabio v.

Credit Bureau of Hutchinson, Inc., 210 F.R.D. 688, 691 (D.Minn. 2002) (finding

good cause where plaintiff’s counsel relied on Magistrate Judge’s contradictory

statement in previous case that deadline did not apply to motion to amend to add

punitive damages). Thus, by blind-siding Plaintiff with an argument which is

contradicted by the record, Ford created an “extraordinary circumstance”

necessitating further amendment of the Complaint.

Plaintiff has been diligently preparing his claims and pursuing discovery to

uncover and confirm facts necessary to satisfy his burden of proving an

uncommon and fact-intensive warning claim. Cf. Morlock v. West Cent. Educ.

Dist., 46 F.Supp.2d 892, 912-13 (D.Minn. 1999) (student allowed to amend

complaint, even though more than one year passed since deadline, where no

bad motive or dilatory tactics, proposed amendment only marginally altered

theory of case, and defendant already aware of need to address issues). Plaintiff

has repeatedly cited the post-sale warning claim as a basis for discovery Ford

has attempted to evade, and is making this Motion expediently after Ford

reinitiated its efforts to avoid plaintiff’s claims on pleading technicalities. Simply

stated, “good cause” exists to amplify Plaintiff’s post-sale warning claims, as

amendment will ensure trial on the merits. Indeed, there is “good cause” to


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ensure that the discovery process is not derailed by any further disagreement of

whether a post-sale warning claim is actually alleged.

3. While Ford Will Not be Prejudiced by Amendment, Plaintiff Will be Severely Prejudiced by Denial

The purpose of pleadings is simply to give defendants notice of the claims

against them. See Fed. R. Civ. P. 8. “The purpose of allowing amendment is to

permit a final decision on the merits, and not on technicalities.” Reaves v. Sielaff,

382 F.Supp. 472, 474 (E.D.Penn. 1974) (“The problem in this case is not the

general right to amend, but whether amendment will serve the ends of justice.”).

“[T]he policy of the Federal courts, as exhorted by the Federal Rules, is to . . .

avoid an approach that would relegate the process ‘to a game of skill in which

one misstep by counsel [might] be decisive to the outcome.’” Cook v. Greyhound

Lines, Inc., 847 F.Supp. 725, 731 (D.Minn. 1994) (quoting Foman, 371 U.S. at

381-82).

“Narrow pleading rules should not be applied to foil an honest plaintiff’s

efforts to gain redress [by amendment of his complaint].” Middle Atl. Util. Co. v.

S.M.W. Development Corp., 392 F.2d 380, 384 (2d Cir. 1968) (overruling denial

of leave to amend complaint where three year delay caused by unexpected

circumstances and resulted in no prejudice).

There is no risk of prejudice to Ford. Indeed, to the extent pleadings are

intended to provide further notice to Ford regarding Plaintiff’s claims and their

factual support, Ford will benefit from amendment of the Complaint. Ford has


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been on notice of Plaintiff’s continuing duty to warn claim since day one. Cf.

Dunham v. Innerst, 50 F.R.D. 372, 373 (M.D.Penn. 1970) (“if the party [resisting

amendment] received notice, he has not been prejudiced, and it is the interest of

justice to permit the amendment.”). No unique or new discovery is necessary,

other than the production of the discovery Ford has been evading. Indeed, the

evidence necessary for Plaintiff’s post-sale warning claim tracks the evidence

which will substantiate Plaintiff’s punitive damages claim. No trial date has been

set, and no dispositive motions have been filed. Pursuant to Local Rule 16.3,

Plaintiff’s proposed amendments are not the cause for delays in the scheduling

order deadlines. Rather, it is Ford’s discovery evasion which has caused the

need to change the Scheduling Order. In any event, this Court recently amended

the Scheduling Order, pushing the discovery deadline out to August 1, 2015.

(Doc. 139). .

In contrast, if the Motion to amplify the post-sale warning claims is denied,

Plaintiff will be prejudiced. The denial would invite Ford to further attempt to

evade the merits of Plaintiff’s claims. Denial would encourage Ford to withhold

evidence based on pleading technicalities, depriving Plaintiff, and the finder of

fact, of probative evidence of Ford’s unreasonable conduct. Denial could

potentially jeopardize Plaintiff’s post-sale warning claim (as well as his punitive

damages and other claims), depriving Plaintiff of his day in court on core

elements of his case. Simply said, denial of the Motion to amplify the ongoing

warning claim would reduce trial from a determination of truth to a game of skill,


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in which Ford would be rewarded for tactical evasion of truth. Therefore, the

Motion to amplify the post-sale warning claim should be granted.

CONCLUSION

Pleadings do more than put the defendant on notice. Indeed, a defendant

is often the only one which knows exactly what it did. Pleadings force a

defendant to answer the charges levied against it in an open and public forum,

for all to consider.

After more than 35 years of evasion, it is time for Ford to account for itself,

for what it did, and for the harm it caused. It is time to put automobile

manufacturers on notice that profits are less important than public safety.

Because Plaintiff’s punitive and post-sale warning claims are viable, and the only

prejudice to Ford is the scrutiny the allegations deserve, Plaintiff’s Motion to

Amend the Complaint should be granted.

Dated: September 26, 2014 HALL LAW, P.A.

By: s/Raymond J. Konz. L. Michael Hall (#39792) [email protected] L. Michael Hall, III (#0306988) [email protected] Raymond J. Konz (#0391236) [email protected] 1010 W. St. Germain Street, Suite 100 St. Cloud, Minnesota 56301 Tel: (320) 255-1000 Fax (320) 255-5450 ATTORNEYS FOR PLAINTIFF

JEFFREY PAUL HINKEMEYER


2014-09-26 Memorandum of Law in Support of Motion to Add a Punitive Damages Claim & Amplify...

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