Making autos safe, or making trial lawyers rich? 

Would you rather have your next car designed by automotive safety experts, or by a jury of your peers?

If the question seems stupid, you might consider asking Democrats in Congress why they are so intent on the latter. Their new Motor Vehicle Safety Act contains a provision that would literally take detailed questions about automobile design safety away from the people who test cars and make the rules on how they are built, and hand it instead to randomly selected state juries.

State juries already hear cases and make awards to plaintiffs when individual cars are defective. But under federal law, automakers cannot be sued in state court for a defective design as long as they follow the federal government’s detailed and stringent safety standards.

When I write “detailed and stringent,” I’m thinking of one particular example I just suffered through over the weekend: forty-five pages of 8-point font from last May’s Federal Register on the single topic of automobile roof strength. Did you know that your car’s roof has to withstand 1½ times its own weight without crushing?

Or that the new federal rules, developed over the past five years for implementation in 2012, will “prohibit any roof component from contacting the head of a seated 50th percentile male dummy when the roof is subjected to a force equivalent to 2.5 times the unloaded vehicle weight?”

As you can imagine, a lot of work by experts at the Department of Transportation went into crafting that standard. They factored in the varying sizes of people and vehicle compartments. According to the Register, they rolled cars, dropped them on their roofs, and developed laboratory tests that appropriately simulated real-life rollover crashes.

State juries are not likely to do any of these things, but they might soon be deciding whether automobile designs are defective, thanks to a provision inserted in committee into the House auto safety bill by Energy and Commerce Chairman Henry Waxman, D-Los Angeles. Title V of the bill would stop existing federal rules, and prevent new ones, from pre-empting state-level lawsuits over automobile design.

The intended result is a cascade of new state lawsuits against automakers, and take from their deep pockets more huge contingency fees for trial lawyers that can be recycled into contributions to the Democratic Party.

If Waxman’s amendment becomes law, it will mean in the future that state juries — not the federal regulators who write the rules — will determine whether, why and what part of a car’s design is defective.

The rules of evidence in such cases would also vary widely by jurisdiction. In Florida, for example, if a drunken driver causes a deadly crash and then sues the automaker for a defective design, the jury cannot even be told at trial that the accident was his fault.

There are legitimate arguments for and against federal rules that pre-empt state lawsuits. But for automakers, whose products are already regulated by the federal government under the Constitution’s interstate commerce clause, the combination of stringent federal standards and fickle state juries represents the worst of all worlds. They must follow federal rules under penalty of law, but then randomly selected, nonexpert jurors can essentially ignore those rules and find fault with their designs anyway.

That won’t make you any safer on the highway, but it will make a lot of lawyers very rich.

Columnist David Freddoso is The Washington Examiner online opinion editor.

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