November 2, 2007
MOBILE, ALABAMA – After settling a seat-track and airbag defects case against DaimlerChrysler and Mitsubishi, attorney Patrick M. Ardis says he will pursue a fraud investigation against the Japanese automaker.
Ardis, of Wolff Ardis, P.C. of Memphis, Tennessee, alleges that Mitsubishi deliberately concealed that it had changed the design of the seat tracks in 1995-2000 Chrysler Sebring and Dodge Avenger coupes, the 1995-1999 Mitsubishi Eclipse, and the 1995-1998 Eagle Talon vehicles to fix a flaw that prevented the front passenger seat from locking into place. Ardis and his co-counsel Richard Taylor discovered the alleged fraud on the eve of trial, when one of their expert witnesses, Don Phillips, stumbled onto evidence that the seat tracks in the 1998 and 1999 model years lacked the seat adjuster part, known as the trigger, that was part of the 1996 track assembly.
“Someone lied to us,” Ardis said flatly. “If we hadn’t been really skilled or really lucky – take your pick – they might have blown by that change and the fraud would have gone on one more time, for one more victim.”
Ardis’s charges stem from a July 2004 crash on U.S. Hwy 98 that killed the driver of a 1996 Sebring and permanently and severely injured the 9-year-old front seat passenger. Jonny Gray II was traveling east on Highway 98 near the border between Alabama and Mississippi, when he was struck by a 1997 Infiniti I30, which had swerved into oncoming traffic to avoid a rear-end collision with a stopped vehicle in the westbound lane. The crash collapsed the Sebring front-side structure, driving the steering column close to Gray’s chest before the airbag deployed. His daughter, Tashina Gray, suffered massive brain injuries and paralysis when her seat was propelled forward to the aluminum-backed airbag door, which struck her in the head as the airbag deployed.
The Grays’ lawsuit against DaimlerChyrsler, which sold the Sebring, and Mitsubishi, which manufactured the coupe, charged that the vehicle was generally uncrashworthy because the seat belts and the structure and frame of the doors were defective. The suit claimed that airbags were defective because they were overly aggressive and deployed late, and the passenger seat was defective because it failed to lock in place.
To prove the latter, Ardis and Taylor attempted, through a year’s worth of discovery, to find evidence about changes to Mitsubishi’s design of the “easy-entry” seat track. The easy entry system allowed rear seat passengers better access by allowing the front seat back to be folded and the seat bottom pushed forward with a single lever. Most seats of this type lock into place by sliding the seat bottom into position and then raising the seat back to an upright position to lock the seat in place in the track. Between 1995 and 1997, Mitsubishi designed the easy-entry seat so that an occupant would have to return the seat back to the upright position first and then slide the seat back into position to lock it into place. However, the automaker failed to warn consumers about the change and included no instructions in the owner’s manual.
DaimlerChrysler admitted that it had fielded about 20,000 warranty claims about front seat failures, without specifying the specific nature of the complaints. Mitsubishi produced almost 1,000 warranty claims against the Eclipse specifically regarding the failure of the passenger seat to lock into place. But Mitsubishi asserted its warranty claims or those of DaimlerChrysler did not signal a trend that required revisions to the seat track or notice to its customers. In a March 2007 deposition Norifumi Mikami, the Japanese automaker’s corporate representative on the seat track easy entry mechanism, told Ardis: “If you are referring to the system used in the FJ-22, which is the subject vehicle, then there has not been change in the slide – sliding system or sliding mechanism.”
Mitsubishi maintained that position during the discovery process. On August 15, two days before the trial, Don Phillips, a mechanical engineer retained to testify about the design and function of the easy-entry seat, traveled to Weil Wrecker Service in Birmingham to examine some cut-up exemplar vehicles and seats the defendants intended to use during the trial. Phillips found some seats in a room, along with two others in cardboard boxes. Phillips left the room to look at some of the exemplar vehicles outside. When he returned, some of the seats were still in the room, but the boxes were gone. He later found them, and when Phillips examined those seats, he found that the seat tracks were missing the trigger mechanism. Ardis spent the weekend confirming that the design had been changed sometime in 1997 or 1998 after finding other seat examples from area salvage yards.
On Monday, August 20, 2007, Alan Thomas, Mitsubishi’s lead trial counsel argued a motion to exclude the warranty information because it was irrelevant. Thomas also argued to exclude any evidence of a subsequent design change in the seat track because, he argued, the law precluded any evidence of a design change that occurred after the date of the Sebring’s manufacture. Ardis’s co-counsel, Richard Taylor, argued that the law actually precluded evidence of design changes that occurred after the accident in the lawsuit. He followed up by pointing out that Mitsubishi had repeatedly denied that there was any change to the seat track design. Taylor attempted unsuccessfully to question Mitsubishi’s attorneys about the design changes mentioned in their motion. Then he presented the seat exemplars Ardis had gathered, showing the triggers had been designed out of the seat tracks.
The "trigger" that prevented the seat from locking in the Gray vehicle
After a brief recess, Judge John Lockett from the Mobile Circuit Court, ruled that the warranty evidence and examples of other similar incidents were admissible. Several hours later the case settled.
Mitsubishi has a long history of concealing defects. From 1999 to 2004, Mitsubishi was rocked by a series of scandals that revealed a corporate culture at the highest levels of denying the existence of problems with their vehicles. In 1999, a Massachusetts Superior Court judge overturned a verdict in favor of Mitsubishi Motors Corp. and Mitsubishi Motor Sales of America, citing the companies’ “stubborn noncompliance” with court orders and a “deliberate and calculated plan to use the judicial system in an unconscionable and fraudulent manner.” The automaker was ordered to pay the plaintiffs’ attorney fees and legal costs incurred in the 5-week trial after the court found that it had concealed the existence of more than 51,000 warranty claims and reports from customers and dealers concerning unintended door openings and door latch failures.
In 2000, after an investigation by the Japanese Ministry of Transport, Katsuhiko Kawasoe, President of Mitsubishi, apologized for hiding information since 1998 on more than 530,000 vehicles produced since 1991. Eventually, Mitsubishi admitted to hiding documents for at least 23 years, going back to 1969 when the recall system was first initiated in Japan, the Japan Times reported. The admissions touched off a decline in Mitsubishi sales and a series of recalls in Japan and the U.S. The U.S. recall included the 1992-1994 Mitsubishi Montero for defective brake hoses and 1994-1995 Galant sedans built in Japan to check welds or cracks in the gas tank that could cause leaks. Several top executives were charged criminally and civilly for fraud and negligence.
In 2004, Kawasoe pleaded guilty to charges of professional negligence in relation to a fatal accident that occurred in October 2002. In 2006, three other Mitsubishi executives were acquitted of falsifying defect reports on truck wheel parts to avoid a recall, because the Transport Ministry failed to order them to submit a defect report under the road and transport law.
Although the Gray case has been resolved, Ardis says he isn’t done yet. “I want to see who was responsible for the decision not to produce those materials,” Ardis says. “First, we’ll see what Mitsubishi will tell us voluntarily.”
Copyright © Safety Research & Strategies, Inc, 2007