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.

Goodyear announced that it would replace these tires, manufactured at the Uitenhage plant in South Africa between 2003 and 2006, with Goodyear Regatta II tires. At the time, Simeon Ford, manager of Goodyear’s government and customer compliance said:

“This precautionary campaign is in response to our internal analysis and review of early warning data we monitor on our tires. The company has determined some of these tires have experienced adverse service conditions that have led to a tread separation, and in the interest of customer satisfaction has decided to replace qualifying tires. After an exhaustive analysis, no design or manufacturing defect was found in the tire.”

At the time, Goodyear fessed up to a “small number” of injuries and one fatal tread separation.

The case, which settled confidentially in late May, was marked by a variety of discovery disputes. Goodyear, as a matter of course, objects to most requests for production, and it was similarly obdurate when attorney David Kwass asked the company for any documents regarding any recall or enhanced warranty program. In June, Goodyear rejected the request  to produce “documents voluntarily provided to NHTSA by Goodyear that NHTSA specifically determined to be confidential…. the tire at issue was not the subject of a recall, therefore there are no responsive documents to any recall or enhanced warranty for tires using the same material and construction specifications as the subject tire including those bearing different external markings, tread configurations, brand and/or tire line names, including prior and subsequent versions thereof because none exist.”

Well, the “facts” in this paragraph were a bit of misrepresentation. Let’s start with “none exist.” Safety Research & Strategies got some of these non-existent materials by a simple Freedom of Information Request to NHTSA. The 58 pages of non-confidential-confidential material consists of a few redacted emails from NHTSA to Simeon Ford about the Customer Satisfaction Campaign and the EWR data that led to Goodyear’s decision to replace the tires, some photos of catastrophic tread separations, an EWR spreadsheet, a few pages of a Powerpoint presentation on the Customer Satisfaction campaign. Nothing startling and surely nothing that qualifies as a confidential business secret – including an FAQ (marked company confidential) apparently prepared by Goodyear for the NHTSA flacks to handle press questions, as in:

Q. If Goodyear cannot find a defect, what did they see in the data to prompt them into taking this action?

A. Direct to Goodyear to answer.

 

Let’s continue with “NHTSA specifically determined to be confidential.” NHTSA doesn’t unilaterally decide such things. Goodyear formally requested in November 2007 that some of the information it gave NHTSA to be given confidential treatment as a trade secret. We didn’t see that information – because NHTSA granted its request in March 2008. So the FAQ either wasn’t part of the package Goodyear sent in 2007, or NHTSA determined that answers to journalists weren’t confidential business secrets.  

Bottom line: Goodyear did have documents related to an enhanced warranty program – the customer satisfaction campaign – that were not “specifically determined to be confidential,” and Goodyear didn’t produce them.

When Goodyear learned in a corporate representative deposition, last summer, that the plaintiffs possessed said mythical materials, they moved to have a judge declare them confidential.

Their reasons?  That Douglas Xtra Trac P215 70/R14 was not really one of the tires in the Customer Satisfaction campaign. Wrong. All tires produced at the Uitenhage plant in South Africa between 2003 and 2006 were the same tire. Goodyear corporate reps said so; the company’s press release said so; the FAQs said so; Goodyear told NHTSA this was so. Second, Goodyear argued that South African privacy laws forbade them from releasing such materials. Apparently the laws of South Africa govern the public information policies of U.S. government agencies. Good to know.

Why throw a spotlight on this kerfuffle? Because if keeping everything on the QT isn’t Goodyear’s numero uno strategy for limiting its liability, it’s pretty damned near the top of the list. Everything in the Goodyear way of litigating is under seal, subject to a non-sharing protective order, confidential, secret. And that keeps victims in one case knowing about the damaging evidence that comes out in another case. One judge buys Goodyear’s rap at retail over here, and another judge goes along with it over there, and bootstrap-by-bootstrap, Goodyear keeps its knowledge of defects tied down.

But these tactics weren’t so well known until the Haeger case went up in flames in an Arizona courtroom in 2011. In June 2003 Leroy and Donna Haeger, along with their passengers, Barry and Suzanne Haeger, were seriously injured in June 2003, when the right front G159 tire on their Spartan Gulf Stream Coach failed, causing a rollover. Goodyear marketed the G159 to the motorhome market, even though it knew from internal testing that the tire design was prone to overheat on RVs that typically travel at greater than 65- mph speeds for extended periods. The G159 and RVs produced numerous lawsuits when the tires failed, injuring and killing motorhome occupants.

The Haegers filed suit in 2005, and, among the more than 1,000 pleadings. Kurtz had asked for all internal testing regarding the G159. Goodyear turned over as little as possible, and swearing to the court that it had no more.  The Haegers settled in 2010. In June 2010, Kurtz learned from The Safety Record Blog about a $5.7 million plaintiff’s verdict in another G159 case, Schalmo v Goodyear, in which Goodyear’s internal heat and speed testing and failure rate data showing that Goodyear knew the G159 was improperly approved for 75 mph continuous highway use, were among the exhibits. 

In May 2011 Kurtz filed a motion alleging discovery fraud, and Roslyn O. Silver, the Chief Justice of the Arizona District Federal Court eventually ruled that Goodyear’s national coordinating counsel presented the court with a “dizzying array of misstatements and simple falsehoods” to cover up the existence of those tests. She pointed out that Goodyear had employed the same strategy in other G159 cases and was sanctioned by other judges. She required the company to disclose her scathing decision in any future G159 cases, sanctioned the trio for discovery abuse, advised the Haegers to seek damages in a separate action, asked Kurtz to add up the value of his time over the five years he tried to get Goodyear to comply and hinted at the professional consequences awaiting the defense team, Basil Musnuff, formerly of Roetzel & Andress and formerly Goodyear’s national coordinating counsel, Graeme Hancock of Fennemore Craig PC who helped Goodyear’s in-house litigation chief Deborah Okey.

Today, all of the legal actions emanating from Haeger are winding their way through the appeals process.  Kurtz submitted his bill for $2.8 million; Judge Silver determined the final amount of the monetary portion of the sanctions order to be $2.74 million, with $542,240.83 coming out of Hancock’s pocket and $2,192,960.93 from Musnuff and Goodyear. Goodyear appealed the order to pay it – along with the disclosure portion -- to the U.S. Court of Appeals’ Ninth Circuit, based in San Francisco.

As for what is happening with the appeal, we cannot say. The Ninth Circuit sealed it. Secret.

More on Goodyear and the Haeger case:

Pattern of Fraud Brings Down Goodyear

The Wages of Fraud

Haeger High-Stakes Poker

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