Corporate Concealment of Evidence in Personal Injury Cases
Most of The Reiff Law Firm’s personal injury clients are severely injured people seeking legal assistance, guidance, and counsel at one of the most vulnerable times of their life. Many injury victims coming into a personal injury attorney’s office are often already likely to be facing significant, multiple hospital and medical bills that can easily reach into the six or seven figure range and beyond, dollar-wise. These injury victims are often without a clear sense that the responsible party will eventually be held accountable – or at all.
Many injury victims also often lack the funds to cover even the initial medical expenses and are likely worried about where the money and resources to seek needed rehabilitative care and pay their daily household bills and ordinary expenses will come from. This worry is further exacerbated by the loss of income, structure, and stability that a job provides. In addition, even if the injury victim can self-pay or otherwise cover the immense costs of medical treatment and rehabilitation, he or she must still undergo the painful and trying recovery process. Many accident victims also worry about the social and financial hardships imposed and the potential decimation of their family and marriages; such pressures and anxieties can easily and often seem insurmountable.
The anxiety and uncertainty for accident victims and their loved ones is often unimaginable when in “one blink of the eye”, their lives are seemingly forever changed, and their hopes and dreams shattered.
Discussing these difficulties is merely meant to illustrate that prior to even considering the initiation of legal process and potential litigation, a personal injury victim already finds him or herself facing an incredibly stressful and trying ordeal.
However, the truth of the matter is that the problems discussed above are only a harbinger of the difficulties and obstacles to come for many personal injury litigants. Unfortunately, many of these impending legal issues are defendant-manufactured problems, obstacles and misunderstandings intended to frustrate, conceal, and delay discovery of evidence to gain greater leverage against the victim. It is for these reasons that an injured individual should retain and work closely with an experienced, seasoned and caring attorney who is adept at identifying and combatting these types of regularly utilized defense tactics.
A recent sanctions order imposed against Goodyear and its attorneys and successfully upheld on appeal pulls back the curtain on some of the more unsavory and questionably unethical legal practices employed by large corporate defendants and their highly paid, skillful defense attorneys. For many defendants, the name of the game is to regularly delay, defend and deny while muddying up the waters for the plaintiff. Many seasoned and experienced corporate attorneys are especially adept at the specious use of legal privileges and creative interpretations of discovery rules and requests to delay and frustrate. They regularly employ these types of defensive tactics along with mischaracterizations and misstatements to thwart plaintiffs from learning the real (and many times ugly) truths about the actual causes and factors that shed light on the causal connection between an alleged product defect, design defect, product failure, failure to warn, and the resulting accident and injuries to an otherwise innocent victim.
In the meantime, the problem(s) remains uncorrected and thousands, if not millions, of people are unknowingly subjected to the dangers of a known risk or product defect. This scenario unfolded in personal injury litigation concerning Goodyear’s G159 tire, the Takata airbag recall, and GM’s ignition switch defect.
The Goodyear G159 Motorhome Tire Blow-Out & Its Testing Process
The events that gave rise to the litigation spurring the sanctions against Goodyear occurred more than 12 years ago in June of 2003. At the time the Haeger family was on a trip in a motor home in the American Southwest. Unfortunately, on this trip the Haeger family all suffered severe, life-altering injuries after one of the front Goodyear G159 tires their motor home was equipped with failed while driving at highway speeds. The tire failure caused a loss of vehicle control resulting in the motor home leaving the roadway where it then overturned.
Following the accident, the Haeger family retained attorney David Kurtz to handle their personal injury action in the Arizona state courts. The suit was filed in 2005 over the 2003 tire failure, overturned motor home accident, and resultant injuries. Goodyear was represented by the company’s “national coordinating counsel” (Musnuff), local counsel (Hancock), and in-house counsel (Okay).
Prior to placing its G159 tire onto the market, Goodyear conducted testing under Federal Motor Vehicle Safety Standard (FMVSS) 119 which sets forth laboratory testing procedures for new pneumatic tires for use on vehicles other than cars. Along with the FMVSS tests, Goodyear also performed a number of additional Department of Transportation (DOT) tests on the G159 tire including:
- High speed tests
- L04 heat rise tests
- DOT endurance test
- Bead durability tests
- Crown durability tests
While plaintiff’s counsel repeatedly requested testing results for the G159 tire, Goodyear’s counsel failed to search for and turn over these responsive testing results. All through the course of the trial Goodyear’s counsel mischaracterized and misconstrued its actions while deriving strategic and tactical benefit from its deceit. The steps and lengths that Goodyear and their counsel went to in order to conceal evidence the Haegers were legally entitled to receive under the Federal Rules of Civil Procedure (FRCP) pertaining to discovery are discussed below.
Delay & Deny is the Discovery Game Played by Some Corporate Counsel
Per Federal Rules of Civil Procedure (FRCP) Rule 26, Goodyear served plaintiffs with its initial disclosure statement in December 2005. These initial disclosures did not contain any information regarding the tire tests conducted and listed above. In response David Kurtz, the injury victim’s lawyer, requested Goodyear to produce its G159 testing documentation and results. As noted above, Goodyear did not supplement its initial disclosure or disclose the existence of these tests.
However, the company did serve interrogatories on plaintiffs that requested, “Each legal theory under which you believe Goodyear is liable.” In response to this request, the Haegers through Kurtz asserted their theory that prolonged exposure to heat degrades the tire and can lead to tire failure even when the tire is inflated and used properly. The plaintiffs also alleged that the when the G159 was used for one of its intended use as a motor home tire, the tire would produce excessive heat “which the tire was not designed to endure, leading to its premature failure.”
Following the exchange of initial disclosures, the plaintiffs submitted a number of Requests for Production to Goodyear. Plaintiff’s first Request for Production was sent in September of the same year. Request Number 14 requested Goodyear to produce “[a]ll test records for the G159 tires, including, but no[t] limited to, road tests, wheel tests, high speed testing, and durability testing.” Goodyear and counsel’s subsequent conduct shows that the defendants understood the theory of the case and that high-speed tests were responsive to this theory, yet failed to satisfy their duty and provide the testing information – in no small part because these test results were extremely damaging to their defense.
Responding to plaintiff’s request for production, Goodyear issued a blanket denial using typical boilerplate language about the request for speed testing being “unduly burdensome and overly broad”. Nonetheless, a later communication apparently resulted in Goodyear agreeing to provide the FMVSS 119 speed tests. However, Goodyear then only produced the DOT tests that had been conducted at 30 miles per hour.
Plaintiff’s counsel sent a letter in late December 2006 clarifying his request that stated:
We asked for test records for the G159 275/70R 22.5, including road tests, wheel tests, high speed testing, and durability testing. You objected, suggesting the test records were overly broad and unduly burdensome. You have only produced the DOT test data showing the tires were tested at 30 mph. My interest is in finding the rest of the test data. If there is any, it is your obligation to disclose it.
Goodyear’s in-house counsel e-mailed the national coordinating counsel due to concerns over this clarified request. He questioned whether high speed testing had occurred in addition to the already produced DOT test and asked whether Goodyear should supplement its response to the earlier production request because the plaintiff’s theory involved high speeds contributing to the failure. Thus, at this point Goodyear’s local counsel had realized that if the testing existed, there was a high likelihood that Goodyear would have to turn it over. In any case, local counsel realized that any high speed tire test, should they exist, was responsive to the discovery request absent some other valid legal reason.
Days after this aforementioned e-mail communication, plaintiff’s expert witness issued his expert report that speed was a contributing factor in the tire failure. However, the expert witness’ report also concluded that the tire had only been tested at speeds up to 30 miles per an hour. Goodyear’s national coordinator picked up on this fact and specifically mentioned that the earlier response to the discovery request only provided DOT 30 mile per hour test information, “because plaintiff had not yet identified their defect theory at that time.” The e-mail closed by floating the idea that Goodyear needed to supplement its response to include the higher speed tests and requested opinions of local counsel and in-house counsel. At this point it was clear that GM and counsel understood the obligation they held to provide responsive information.
Nevertheless, the company failed to take action and supplement its response.
Engineer’s Reports for Additional Tire Tests Are Presented to Goodyear Counsel
Contemporaneously to the events discussed above, in January 2007, an unidentified Goodyear engineer independently came across the high speed and heat rise test for the G159 tire. E-mail records make clear that, at minimum, the high speed tests were delivered by the engineer to national coordinating counsel, Musnuff. Musnuff then forwarded the tests to local counsel (Hancock). However at no point did either attorney or Goodyear’s in-house counsel provide the responsive tests to plaintiff’s counsel. Instead, they concealed the existence of these results.
In April when asked by Judge Silver whether Goodyear had failed to provide any internal documentation requested but not provided, Hancock replied in the negative and did not mention the high speed test or the heat rise test. On the contrary, he stated that the Goodyear had been responsive to all discovery requests. Furthermore he assured the judge that “if a document shows up, we’ll of course produce it and supplement our answers.” In reality, Goodyear’s counsel was engaging in conduct likely to produce the opposite result. In fact, in-house counsel had already received the high speed tests, concluded that they should be produced, failed to do so, and yet he claimed that Goodyear had responded to all requests for outstanding discovery. This in-court statement was false, misleading, and deprived the Haeger’s of the evidence necessary to prove their case. And yet, it was not the only example of delay and denial in this matter.
Goodyear Allowed Experts to Testify Under Incorrect Assumptions and with an Incomplete Record
In May 2007, the Haegers sent their Third Request for Production to Goodyear’s counsel. The request again sought information relating to tests conducted to determine if the G159 tire could withstand highway speeds of up to 75 miles per an hour. At a discovery dispute hearing later in the month, Hancock finally admitted that tests at greater than 30 miles per hour were available. However, he refrained from mentioning that Goodyear had known of these tests since at least early February – a full four months earlier. In fact, Hancock mischaracterized the production of these tests as responsive to a new obligation when he knew or should have known that the obligation arose with the First Request.
Goodyear finally produced the responsive High Speed tests on June 21, 2007
However, in the interim Goodyear had gone ahead with a deposition of plaintiff’s expert witness on May 21, 2007 – one month prior to its limited test disclosure. The witness entered the deposition, on reliance of statements and responses by Goodyear, thinking that the G159 tire had never been tested at speeds above 30 miles per hour. While both Hancock and Musnuff were aware that Goodyear had withheld the test and were, at the time, intending to produce them, neither disclosed this fact and permitted the expert witness to testify under false assumptions of Goodyear’s creation. The district court recognized this tactic for what it was and for what it only could be: “to delay production of the tests in hopes of gaining a tactical advantage.”
Finally, in October 2007 Hancock again assured the court that no other responsive documents detailing test results existed. However, Goodyear only produced the FMVSS 119 DOT test and the High Speed tests despite knowing that other tests were available.
The Haegers Settle, But Questions About Goodyear’s Conduct Mount
In April 2010 on the first day of the trial, the Haegers and Goodyear reached a settlement. Unfortunately for the Haegers, the settlement was based on the outcome of another G159 case and without the benefit of the relevant testing information. Reportedly, the Haegers settled for a small fraction of the case’s true value. Other reports indicate that the family was unlikely to have settled for such an amount had they received all of the discovery information to which they were entitled.
At least several months after the matter had settled Kurtz came across a news article that stated that Goodyear had produced high speed and internal heat testing information in an independent case involving the G159. At this point Kurtz realized that Goodyear had strung him and his client along for years while knowingly failing to turn over evidence that they were required to produce. On May 31, 2011, Kurtz filed a motion for sanctions alleging discovery fraud on behalf of Goodyear.
Sanction Hearings for Goodyear’s Failure to Produce Evidence
In response to the motion for sanctions Judge Silver, the Chief Justice of the Arizona District Federal Court, reviewed the record and mapped out more than 5 years of trial tactics and purported actions that were not quite what they initially appeared. After analyzing the trial record, what the attorneys knew, the many court appearances, briefs, and depositions, Judge Silver determined that Goodyear and its attorneys had intentionally concealed responsive tests to legitimize discoverable tests. Furthermore, Judge Silver found a “dizzying array of falsehoods and misstatements” proffered by Goodyear and counsel apparently in an attempt to thwart plaintiff’s requests for evidence. She also noted that Goodyear had engaged in similar tactics in at least two other trials.
The judge ordered Goodyear’s counsel to pay the costs Kurtz had incurred in attempting to obtain the documents to which his clients were entitled. The monetary portion of the sanctions totaled $2,741,201.16. Perhaps more damaging for Goodyear, however, was Judge Silver’s order that the company disclose its unethical behavior during the legal discovery process in this matter in any new matter with G159 litigants. Goodyear appealed.
Goodyear’s Sanctions Appeal Is Decidedly Unconvincing to the Court
Faced with millions of dollars in sanctions and an order that required the company to disclose its and its lawyers’ behavior, Goodyear appealed the decision.
A video recording of the oral arguments is available on YouTube and illustrates the court’s skepticism regarding Goodyear’s attempts to extricate itself from the situation.
At the outset of the oral arguments, counsel for Goodyear stated that the sanctions ordered by Judge Silver were, essentially, unsustainable due to a lack of clear and convincing evidence. Judge Smith immediately stopped Goodyear’s counsel and stated:
Let me just stop you right there. Last night, I re-read Judge Silver’s documentation, I don’t think I’ve ever seen a more thorough recitation of facts in a contempt situation than what she did. She laid out in great detail in respect to each party that is subject to this contempt action lies, misrepresentations, failures to state, etcetera, etcetera, etcetera. At least speaking for myself, I respectfully suggest if your argument is the sufficiency of evidence you aren’t going to get very far with me.
Judge Smith did mention that there may be some legal issues worth exploring for Goodyear, but he seemed to imply that he was more than satisfied that evidence of improper actions, delay, and deceit were more than established.
The appeals court upheld both the monetary and nonmonetary sanctions against Goodyear. Furthermore, in the written decision the appeals court found that the imposition of nonmonetary sanctions disclosing the fact that Goodyear has not operated under good faith was “balanced, narrowly tailored, and imposes no sanctions beyond what is necessary to remedy what the district court properly perceived as an ongoing problem in Goodyear’s G159 litigation.”
Parallels Seen in Takata & GM’s Litigation Tactics?
While the behavior in the Goodyear G159 tire defect was particularly shocking, these types of tactics can be seen in the both General Motors approach to its ignition switch defect and Takata’s approach to its airbag inflator problems.
Since at least 2001, engineer reports from pre-production testing should have reasonably put General Motors on notice that its ignition switches presented a significant danger to motorists. In 2003, GM was again put on notice about the problem after a technician discovered and reported that the problem with stalling Saturns was corrected after changing the key ring. Twice in 2005, the company rejected proposals to rectify the ignition switch problem due to cost concerns.
By 2007, multiple reports of a “loss of vehicle control” and airbags that would not deploy in an accident resulted in federal regulators inquiring at GM, but GM failed to link the accidents to the known ignition switch problem. NHTSA would again recommend an ignition switch probe in 2010, but insufficient evidence resulted in the probe being dropped despite GM knowing that problems existed. Finally, near the close of 2013, and more than 12 years after the company first knew of the problem, GM admitted that it knew its faulty ignition switches were the cause of at least 31 crashes producing 13 deaths.
GM’s mass recall for ignition switch problems would eventually result in more than 45 recalls ordered during 2014 involving approximately 24.6 million vehicles in the United States. Through its compensation fund, the company has now recognized and approved for compensation regarding 124 instances of lost lives due to the ignition switch defect. Had GM taken action when it first knew about the problematic design issue in the early 2000’s rather than waiting to take action more than a decade later, it is highly likely that many of these death and injuries could have been avoided.
A similar pattern of alleged corporate irresponsibility and delay can be found in the years prior to the Takata airbag recall announcement. For months, Takata insisted that there was nothing wrong with their airbags despite increasingly urgent calls from federal regulators and Congress.
In fact, as late as December 2014 the company claimed that its data and testing did not show the need for an expanded national recall. However, a New York Times report revealed that the company had ordered secret testing to pinpoint the problem back in 2004. The tests involved more than 50 airbags and involved senior members of the testing laboratory.
According to former employees interviewed by the Times, “The steel inflaters [sic] in two of the airbags cracked during the tests, a condition that can lead to rupture.” The result was so startling that engineers began designing possible fixes in preparation for a recall.” Unfortunately, these test results were not shared with federal regulators nor was a fix actually developed. On the contrary, the company ordered the engineers to delete the testing data and to dispose of the deflators used in the test. According to one employee interviewed by the Times, “All the testing was hush-hush. Then one day, it was, ‘Pack it all up, shut the whole thing down.’ It was not standard procedure.” Other internal company documents discovered by Reuters revealed that the company was having issues meeting inflator and propellant quality standards at its Mexico plant.
These alarming events occurred more than four years prior to the 2008 inflator tests that would ultimately result in a limited recall. And yet, as occurrences of the defect continued – and as evidence mounted that the defect was both widespread and lethal – Takata continued to delay and deny that these issues were pervasive. In fact, the more evidence mounted, the more aggressively Takata concealed its past actions.
By February 2015, NHTSA announced that it would fine Takata $14,000 a day until the company complied with the agency’s discovery requests. In its letter informing the company of its decision to impose penalties NHTSA wrote, “Takata is neither being forthcoming with the information that it is legally obligated to supply, nor is it being cooperative in aiding NHTSA’s ongoing investigation of a potentially serious safety defect.” While the company ostensibly began to change its approach to the matter in May 2015, years were wasted where measures to eliminate this risk could have been implemented and resulted in many lives saved and life altering catastrophic injuries avoided.
The Costs Imposed on Injury Victims by Delay Tactics
More than 12 years have elapsed since the Haeger’s roll-over accident. In that time the family has incurred tremendous expenses for their medical bills and rehabilitation. Furthermore, they have suffered real losses in earnings and lifetime earning potential. Leroy Haeger, one of the victims, has already passed away. Suzanne Haeger, also a victim, is now in her early 80s. Leroy Haeger did not live to see the conclusion of the litigation and, with another appeal expected, it is certainly feasible that Ms. Haeger may not. For these ageing individuals, justice deferred is justice denied.
Separate and apart from these individual lives so affected and impacted not only by the initial accident but also by the needlessly protracted litigation, are the impact on other drivers and motorists. Rather than issuing a recall after discovering that the G159 tire may have been improperly approved for speeds of 75 miles per hour, Goodyear concealed the problem while aggressively delaying, denying and defending. In the interim, it is highly likely that other motorists may have suffered similar vehicular accidents and similar injuries – injuries that could have been prevented by a full and timely proper disclosure of testing results and potential problems with the approval process. As discussed above, both the Takata airbag and GM ignition switch matters seemingly echo this pattern.
Perhaps the district court stated the principle that should guide both defense attorneys and plaintiff’s lawyers when litigating a matter:
Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests. The little voice in every attorney’s conscience that murmurs turn over all material information was ignored.
Following a life-altering injury or the death of a loved one, individuals and families are faced with exceedingly difficult circumstances. Hopes and dreams for the future may have been shattered, lifelong and severely limiting injuries may have been inflicted, and the victim may still be emotionally reeling or despondent from his or her recent harrowing experience. And yet, these injury victims are not only supposed to pick up and move forward with their life like nothing has happened – they are also forced to contend with and recover from the limiting effects of their severe injuries all the while fighting to get the evidence and documentation they need to prove that they have grounds for a recovery.
These are the types of situations and problems personal injury lawyers face when dealing with insurance companies and corporate defendants. Despite the urging of the courts, for many defense attorneys litigation has indeed become a game. All too often, cost-cutting measures are elevated above the pursuit of truth.