Judges warn company about failure to provide court papers
By: Jeff Plungis
May 26, 2004
WASHINGTON — It was far from an isolated incident when a Texas judge fined Ford Motor Co. $44,000 in February for failing to produce internal documents about substandard pickup truck door handles.
In recent years, Ford has drawn fines and sanctions from courts in product liability lawsuits across the country. Judges have accused the automaker of withholding key documents and — in a few cases — concealing evidence.
In one Michigan lawsuit arising from an accident that left a toddler with brain damage, Kent County Circuit Judge Dennis Kolenda ruled the automaker’s conduct was an “outrageous fraud” and directed a verdict for the plaintiffs.
“For over two years, Ford has concealed very significant documents and information, and, worse, had blatantly lied about these documents and about the information in them,” Kolenda wrote in his 1997 ruling.
Ford, which denies that it intentionally withholds evidence, is far from the only company that has run afoul of judges for failing to turn over internal documents in a timely manner.
In 1998, a Georgia court sanctioned General Motors Corp. for allegedly concealing an internal report in a case involving a Chevette fuel tank fire.
Tobacco companies and asbestos producers concealed damning studies for decades.
But critics say that Ford’s recent moves show a pattern of stonewalling during the discovery process of civil lawsuits.
“It’s the same old practice and pattern,” said Kevin Dean, a Georgetown, S.C., attorney representing a victim paralyzed in a door handle case. “In all of their litigation, they hide until you get someone to push them to tell the truth.”
As part of the case, Dean is seeking sanctions against Ford for failing to turn over the door-latch documents when he first asked about them in May 2000.
Ford officials say they make a good faith effort to comply with discovery requests, but it is difficult to keep track of specific documents in a complex global organization with 300,000 employees.
In the last year, Ford has produced 15 million pages of documents related to lawsuits, said company spokeswoman Kathleen Vokes. Another 12 million pages have been electronically catalogued for lawsuits related to Firestone tires, she said.
“With this volume of litigation involving a company as large and complex as ours, it is inevitable that we — like every other frequent target of litigation — will make some infrequent and honest mistakes,” Vokes said. “Though we obviously wish it never happened, sometimes — rarely — the process does not work.”
Legal experts concur that in modern court cases, plaintiffs’ discovery requests can be extremely complex.
“Discovery measures have become so broad, so all-encompassing, that it is easy to miss something,” said Victor Schwartz, a Washington lawyer who works on product liability reform. “If a company misses something, it does not necessarily mean it is evil or is wrong.”
Still, in a striking number of auto safety cases, judges have reprimanded Ford for failing to abide by court rules:
* In March 2003, a Summit County, Ohio, probate court found Ford had committed “fraud” and vacated a 15-year-old personal injury settlement in a Bronco II rollover case. The court found Ford had concealed a doctor’s report concerning brain damage to a 2-year-old child injured in the accident. The family had accepted a $10,000 cash settlement.
* A judge assigned to resolve discovery disputes in a Los Angeles lawsuit involving a seat-belt injury to a 5-year-old boy said Ford had been uncooperative and had withheld documents. To penalize the automaker, the court instructed the jury to assume the back seat lap belt in a Windstar van was not safe and that Ford had failed to warn the public about it.
* In February 2003, a federal judge in Illinois sanctioned Ford for concealing evidence in a 15-passenger van rollover case. The judge found the company’s behavior to “border on criminal.”
* The Michigan Supreme Court upheld a $547,000 fine imposed on Ford in 2001 for failing to turn over test data in a lawsuit that involved a seat belt failure.
“It’s not only a pattern,” said Andrew Gilberg, a former Ford engineer who testified as an expert in the Texas trial that resulted in the February 2004 fine. “I believe their lawyers are schooled in how to avoid producing documents. It is policy with them.”
The Environmental Working Group, a watchdog group in Washington, D.C., wrote to the Justice Department last year alleging Ford was guilty of a “pattern and practice of willfully concealing safety-related defects data from courts, federal regulators and consumers.”
The group published a detailed account of the company’s alleged efforts to suppress information about testing problems and complaints about the Bronco II sport utility vehicle.
The group asked U.S. Assistant Attorney General Michael Chertoff for a criminal investigation, but it cannot be determined whether the government is looking into the case. The Justice Department does not comment on pending investigations, spokesman Bryan Sierra said.
“Ford’s behavior has been consistent,” said Arianne Callender, senior attorney with the Environmental Working Group. “It’s a pattern that needs to be exposed and investigated.”
James O’Reilly, a products liability expert with the University of Cincinnati College of Law, said a lot of large companies fight attempts by plaintiffs to uncover damning company documents.
“Ford is not the first company to do this, but it raises a lot of questions about the performance of the company,” O’Reilly said.
The recent sanctions involving the safety of truck and SUV door handles is only the latest example of Ford drawing a judicial reprimand.
A state district court judge in Zapata County, Texas, fined Ford $44,000 in February for failing to produce documents that exposed engineering and manufacturing defects potentially affecting 4.1 million vehicles sold between 1997 and 2000. The vehicles include the F-150 and F-250 pickups and the Expedition and Lincoln Navigator SUVs.
Plaintiffs claimed their case was harmed by 28 months of delays by Ford in turning over key evidence, said Jaime Gonzalez, a McAllen, Texas attorney representing the family of Maria Edna Garcia, one of two sisters who died after being ejected in an F-150 rollover crash.
Ford fought hard to keep the door-handle documents out of the trial. In his arguments asking for the documents to be admitted as evidence and for penalties against Ford, Gonzalez cited numerous other cases around the country where judges had sanctioned Ford. On both matters, Gonzalez prevailed.
“The message I want to send is that when it comes to discovery, cross your t’s and dot your i’s because if you don’t, you’re going to get sanctioned,” Judge Manuel Flores said in explaining the fine against Ford.
The door handle documents used in Texas became public only after a 2 1/2-year fight in a different lawsuit in South Carolina. And the story of how they came to light shows how a company’s hardball legal strategy can backfire.
The Ford documents describe a company investigation that discovered the door handles had been manufactured with weak springs, allowing door latches to potentially fly open in crashes.
Ford engineers pinpointed the problem in March 2000 and concluded it was a safety issue and recommended a recall, the documents show. The company estimated the recall would have cost up to $527 million. Ford executives initially approved a recall, the documents show, before determining that the handles could pass a rarely used alternative safety test.
Ford maintains the door handles are safe and comply with federal laws.
Dean, the South Carolina trial attorney, said he first asked for tests and studies about door handle design from Ford in May 2000. He said he was told by Ford that no such information existed.
Two years later, details of some door-handle tests surfaced in other lawsuits. Dean again asked for the information. Lawyers from Nelson Mullins, Ford’s South Carolina counsel, traveled to Dearborn to help the company’s Office of General Counsel find the documents.
They returned to court with the depositions and documents that showed that Ford engineers concluded the truck handles were substandard.
Now that the door-handle memos have been admitted as evidence in a trial, they are public information. And Ford’s growing list of sanctions will give future plaintiffs additional leverage to force the automaker to produce evidence in other product liability cases.
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