Litigating the Goodyear Way

Earlier this month, the Goodyear legal team was prepared to argue before a judge in the Philadelphia County Court of Common Pleas – in essence – that a 2007 Customer Satisfaction campaign to replace 400,000 P215/70R14 tries sold in the U.S. under 23 different names was confidential business information.

This assertion was never put to the test in court. But it’s another one of Goodyear’s litigation tactics designed to turn the discovery process into the two-dimensional version of a waterboarding. Delay, delay, delay. Deny, deny, deny. Goodyear is all about full-throated declarations about the non-existence of evidence and its legal team does not flinch in making them to a judge. In Walden v. Goodyear, Safety Research & Strategies obtained non-existent documents via garden-variety research methods and if you want to read them, click here.

The claim arose in Walden v. Goodyear, a case that involved the catastrophic failure of a Douglas Xtra Trac P215 70/R14. On July 26, 2010, Cynthia Eure was driving her van westbound on the Pennsylvania Turnpike, when her right rear tire suffered a tread separation. The vehicle departed the highway and rolled over.  Five-year-old Tashi Walden was ejected and died of his injuries; two other passengers in the van were injured, but survived. Eure’s failed tire was among those that are part of the customer satisfaction campaign.

NHTSA’s Message to the Defense: Call Us Before We Call You

This week, while heads were rolling out the doors of the RenCen (GM headquarters) in downtown Detroit, the Chief Counsel of the National Highway Traffic Safety Administration was laying down the law for defense lawyers at a Chicago legal conference.

Amid the presentations at the American Conference Institute’s 7th Annual Summit on Defending & Managing Automotive Product Liability Litigation devoted to defeating class-actions, the liability of autonomous cars and one of our personal faves –tire aging (with a shout-out to SRS’ Sean Kane!), was a warning from the government.

First, Chief Counsel O. Kevin Vincent lulled them with a feel-good “rah-rah-ree” paean to industry. And then, he made the hair on the back of their necks rise: A manufacturer’s obligation to report a defect within five days of its discovery is the law, and after a long hiatus from doing its job, NHTSA intended to take “an aggressive stance” in enforcing it.

The first offense line in the discovery of a defect was not the Office of Defects Investigation, Vincent said. It was the manufacturers themselves.

“We don’t have analysts, but your clients do. You all have ability to find these defects,” he said.

A manufacturer cannot delay a defect finding, while a safety problem meanders through an internal process involving multiple committees. It cannot hide its knowledge behind a wall of attorney work product and attorney-client privilege. It cannot wait until it’s gotten the supply chain ready to implement the recall.

And it better not wait until after it settles a plaintiff’s case for big bucks. The TREAD Act obligated NHTSA to “follow up on civil litigation that sends up red flags,” he said.  And they’d be looking for signs of foot-dragging in large civil litigation settlements. Not right away, certainly. Civil actions take years, he said. (This gives the safety problem plenty of time to fester.) How much of a settlement was enough to catch NHTSA’s attention? Vincent wouldn’t name a figure.

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