Beyond the O.J. verdict, errors in judgment mount


WASHINGTON -- Several weeks have passed since the weeping judge and his supporting cast in the Simpson fiasco slouched off history's stage, so you may be hungry for fresh evidence of malpractice by American institutions. You can satisfy your appetite by becoming acquainted, as the Supreme Court did in oral arguments last week, with the case of the $4 million blemish on Dr. Ira Gore's $40,000 car. It is a cautionary tale for conservatives.

A snazzy deal

Dr. Gore, an Alabamian, happily drove his 1990 BMW for nine months before taking it to a detailing shop because he wanted it to look even "snazzier." There he was told that a portion of the car had been repainted before he bought it, a fact apparent only because of something so minor that not even Dr. Gore, who apparently is fastidious about things automotive, had noticed it -- a four-inch tape line on one fender.

Because the finish of cars can be damaged in transit or by environmental conditions such as acid rain before being sold, BMW maintains in this country a refinishing facility like the one used at the factory when cars come off the assembly line with blemishes. It restores cars to factory condition. BMW's policy is that if the cost of repairs exceeds 3 percent of the car's retail price, the car is used as a company car and then sold as a used car. If the cost of repairs is less, the car is delivered to dealers as a new car.

BMW adopted this 3 percent threshold because it equaled the strictest requirement among various state laws -- and indeed was adopted by Alabama after the trial of Dr. Gore's suit. The cost of the repair of Gore's car ($601) was substantially below the threshold. Nevertheless, Dr. Gore sued BMW, charging fraud.

Although the tape line could have been easily buffed out, Dr. Gore's lawyer, citing one person's uncorroborated testimony that even perfectly refinished cars are diminished in value by 10 percent, asked for compensatory damages of $4,000 (the 10 percent) -- plus punitive damages of $4 million. That figure was arrived at by multiplying $4,000 by the number of cars (approximately 1,000) that BMW had touched up at a cost of at least $300 and sold throughout America in the previous 10 years.

Plea to the jury

Dr. Gore's attorney urged the jurors to have the "courage" to give BMW's money to Dr. Gore on behalf of 1,000 people who were unaware of any injury done to them. The jury did.

Alabama's supreme court compounded the travesty when cutting the $4 million judgment in half. The court acknowledged that the ruling violated BMW's due process rights by punishing it for actions that occurred outside Alabama, including actions in 21 states where BMW's disclosure policy conformed to explicit state laws. But as BMW argues, the Alabama court perpetuated the constitutional violation when it took the tainted $4 million ruling as the basis of its $2 million "compromise."

That sum bore no rational relationship to the 14 refurbished BMWs sold in Alabama in the preceding 10 years, reflected no defensible ratio of punitive damages to Dr. Gore's potential harm, and was not defensible as necessary to punish or deter, especially given that virtually every state that has legislated on this subject has adopted damage disclosure standards identical or less stringent than BMW's standard.

The actions of the Alabama jury and supreme court are part of a growing stain of willful recklessness in litigation. A New York jury awarded $54 million in an asbestos case, giving each of the three victims $18 million because "18" symbolizes "life" in Hebrew. Remember the New Mexico case where a jury awarded woman $2.9 million because the McDonald's coffee she spilled while driving burned her and might have been too hot. A judge reduced the award to $490,000 to punish and deter bad "corporate coffee policy," thereby proving that the difference between the capriciousness of judges and juries often is merely a matter of degree.

David Tell, writing about the Simpson verdict in The Weekly Standard, says conservatives sanguine about "restoring the stolen power of the federal government to its rightful owners in civil society" must face the fact that the Los Angeles Police Department, the Simpson jury -- and the inner-city crowds and black college student bodies that exulted about the verdict -- are facets of civil society. Indeed.

Regarding state and local institutions, many conservatives today manifest the least conservative quality, sentimentality. They should remember that Madison, the Founding Father most favored by many thoughtful conservatives, advocated the Constitution, with its enhanced central government, because the injustices of state governments were "so frequent and flagrant as to alarm the most steadfast friends" of popular government. Where, then, can power be lodged with confidence that it will not be abused? Nowhere.

6* George Will is a syndicated columnist.

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