Investigations

Lawsuit becomes a ‘million-document monster’ involving Goodyear Tire

FairWarning.org

Thirteen years after Arizona lawyer David Kurtz agreed to represent accident victims in a lawsuit against Goodyear Tire & Rubber Co., a seemingly routine lawsuit has morphed into a million-document monster that has called into question the integrity of America’s largest tire maker.

It also has illustrated how secret settlements can keep the public in the dark about potentially deadly hazards, and it has consumed Kurtz’s career.

Kurtz’s clients were four members of a family who were traveling in a motor home in 2003 when the Goodyear tire on their right front wheel suddenly lost its tread, leading to a high-speed, single-vehicle crash. They were seriously injured.

It turned out that their lawsuit would be among dozens filed for people injured or killed in wrecks involving a specialty Goodyear tire.

It was a tire designed for stop-and-go urban delivery trucks. But it also fit large motor homes. Goodyear sold between 40,000 and 50,000 of the tires for that purpose.

Goodyear decided motor homes were a suitable market, despite its own lab tests showing that the tire could overheat so badly during extended highway travel that it might lose its tread. After Goodyear was sued, its lawyers didn’t share those results with Kurtz, even though court rules and professional ethics required them to.

By concealing the tests, a federal district judge and an appeals panel found, Goodyear cheated Kurtz’s clients out of their opportunity for a fair trial, and the company escaped with a secret low-ball settlement that likely saved Goodyear millions of dollars.

Goodyear declined a request to tell its side of the story in depth for this article and would not allow its tire experts or attorneys to be interviewed. But it issued a statement that it “continue[s] to believe’’ that the tire, known as the G159, is defect-free and safe for use on motor homes.

Goodyear, the statement said, “has a robust process for identifying potential safety-related defects in its products. We continuously monitor the manufacturing process and the performance of our products in the field. When potential issues or trends are identified, they are raised to the appropriate individuals and action is taken as necessary.”

A year after that 2010 settlement, Kurtz learned by happenstance the truth of Goodyear’s deception.

Ever since, Kurtz has made calling Goodyear to account his personal calling.

He abandoned the rest of his law practice so that he could focus all of his energy on trying to prove that Goodyear harmed his clients and scores of others by irresponsibly allowing a tire it knew could be dangerous to remain on the road.

He returned to the courtroom and persuaded the judge to impose a jaw-dropping, albeit still unpaid, $2.7 million in sanctions on Goodyear and its attorneys. The judge agreed that deliberate corporate decisions were made to violate court rules and legal ethics by hiding evidence.

Kurtz then used those findings to launch a spinoff of his clients’ original lawsuit, this time accusing Goodyear and its lawyers of fraud. That lawsuit was settled last year on secret terms.

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Arizona lawyer David Kurtz gave up the rest of his legal practice to focus on litigation against Goodyear Tire & Rubber Co. FairWarning.org

Meanwhile, Kurtz won court permission to use sealed documents from 13 of the 41 known lawsuits over injuries and deaths attributed to the tire’s failures on motor homes to spark an ongoing investigation by the National Highway Traffic Safety Administration, which regulates the safety of vehicles and tires. It is not clear when the probe will be completed.

The nonprofit Center for Auto Safety, co-founded by consumer activist Ralph Nader, also was allowed to enter the case to represent the public’s interest. Goodyear is appealing both decisions, but says it is fully cooperating with the probe. NHTSA did not respond to a written request for comment.

Kurtz is now trying to interest federal prosecutors in pursuing criminal charges against the company and its attorneys. “Goodyear’s misconduct is so egregious in my mind that the need for punishment is obvious,” he said.

Statistics that Goodyear produced recently under court order can be interpreted to show that the G159, when used on motor homes, is the most failure-prone tire in recent history. It is linked to at least 10 deaths, 88 injuries, hundreds of property damage claims and thousands of warranty adjustments.

Goodyear stopped producing the tire for motor homes 15 years ago and it is unknown how many may remain in service. The tire was intended to last 100,000 miles and, if re-grooved, 300,000.

Kurtz dismisses arguments that his pursuit of Goodyear is so dated that it has lost relevance.

Not for his clients, he says. Some of them still wake up every day in chronic pain.

The Clients

Kurtz’s clients were Leroy Haeger, a 70-year-old retired electrician; Haeger’s wife, Donna, 69; their son, Barry, 45; and his wife, Suzanne, 42. All four were riding in Haeger’s four-year-old Gulf Stream Coach motor home just outside the small city of Truth or Consequences, New Mexico.

The right front tire, original equipment on Haeger’s 38-foot-long motor home, suddenly lost its tread. Haeger quickly lost control of the 15-ton vehicle, which veered sharply to the right, off the highway and onto a patch of desert, where it overturned and skidded to a stop on its side.

Haeger was pinned in the driver’s seat, his lower leg so badly mangled that it would require 17 surgeries. His son, riding beside him, managed to extricate himself from the crumpled vehicle. Haeger’s wife and daughter-in-law, who were riding in the rear, were trapped, buried under debris. As was the case with Haeger, rescue workers had to cut through wreckage to free them.

Haeger and his wife were airlifted to a hospital. Haeger’s wife had a broken jaw, teeth, wrist, foot, ribs and toes. Her Achilles tendon was also severed and she is said to suffer from chronic pain. The Haegers’ daughter-in-law had a crushed arm and also remains in chronic pain.

First Tire Case

When he took their case, Kurtz was 49 and had broad experience in civil litigation. He said he had spent 18 years at one of Arizona’s largest firms, mainly defending corporations and insurers. Then he went into business for himself as a plaintiff’s lawyer. At his law practice’s peak, he said he employed 10 attorneys.

But they are gone—casualties of his decision seven years ago to devote his entire practice to the Goodyear case.

It was Kurtz’s first case involving a tire. He set out to educate himself on tire safety by reading a two-volume set of technical reports written by tire experts, including some from Goodyear. The reports were published by NHTSA, the regulatory agency.

One observation seemed to jump from the pages as he read the reports. There seemed to be a consensus among experts that, as one of them put it, “Heat is the great enemy of tires.”

This intrigued Kurtz. Goodyear had designed the G159 for delivery trucks, which tended to travel short distances at moderate speeds, conditions not expected to generate much heat.

But Goodyear had marketed the tire for use on large motor homes like Haeger’s, which tended to cover long distances at highway speeds, conditions likely to generate much more heat.

A Hypothesis and a Roadblock

Kurtz developed a hypothesis that Haeger’s tire failed because it was exposed to too much heat. He set out in pretrial discovery, when parties in a lawsuit exchange information, to test his theory.

Goodyear claimed that heat played no role in the failure of Haeger’s tire. It argued that the tire had been fatally weakened sometime earlier when Haeger had struck road debris—an event Haeger testified never occurred.

Kurtz deposed Goodyear’s experts and asked them how hot this tire would have to get before its tread would be in danger of falling away. Their answer was more than 200 degrees.

Kurtz then asked Goodyear to produce results of any laboratory tests showing how hot the tire actually got at sustained highway speeds.

That’s where he hit a roadblock.

Goodyear’s lawyers balked at handing over results of such tests and engaged in what an appeals court justice later described as intellectual dishonesty to mislead the judge into believing they had already disclosed to Kurtz whatever relevant tests they had.

A Safety Researcher Rides to the Rescue

There was little Kurtz could do about this misrepresentation at the time. When he protested, U.S. District Court Judge Roslyn Silver made it clear that she trusted Goodyear’s local counsel, Graeme Hancock, a shareholder in what many considered Phoenix’s most prestigious law firm, Fennemore Craig, to behave honorably and disclose all relevant evidence.

On the day in 2010 the lawsuit was finally set for trial, Kurtz still lacked the test results he had by then been requesting for five years. Rather than go to trial without enough evidence, Kurtz’s clients agreed to a secret settlement with Goodyear.

That is where this story likely would have ended were it not for the work of independent safety researcher Sean Kane, who had been tracking another G159 tire case in Florida and had decided to write about it on his website, safetyresearch.net. An auto industry blog, jalopnik.com, also has reported extensively on the issue.

The Florida case was the only G159 lawsuit known to have gone to a trial. The year after Kurtz’s case settled, a jury awarded the accident victims in the Florida case $5.6 million.

Following the verdict, the protective order sealing evidence in the Florida case lapsed. It was soon reinstated when the plaintiffs agreed to a secret settlement with Goodyear in return for Goodyear’s promise not to appeal the jury verdict. But during the lapse, Kane assembled a list of test results Goodyear had disclosed under court orders in that case.

Kurtz recalled being floored to read that Goodyear had produced in the Florida case the very tests that he had repeatedly requested, but that Goodyear had never turned over.

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Judge Roslyn Silver ordered Goodyear and its lawyers to pay $2.7 million in sanctions. FairWarning.org

Returning to the Courtroom

Kurtz returned to Judge Silver’s courtroom to ask her to sanction Goodyear and its attorneys for their deception.

She acknowledged that she had grown exasperated at Kurtz because his “repeated attempts to cast aspersions on Mr. Hancock appeared misguided. Of course, now that Goodyear has been forced to admit additional information does exist, that exasperation was misplaced.”

Silver said that if the case had not already been settled, she would punish Goodyear by entering a judgment against it.

Instead, she ordered Goodyear, Hancock and his law firm, another Goodyear lawyer, Basil Musnuff, and Musnuff’s Akron, Ohio-based firm, Roetzel & Andress, to pay the Haegers $2.7 million in sanctions.

Musnuff and his firm had been hired by Goodyear to coordinate its responses to all of the G159 lawsuits. He reported to Goodyear’s assistant general counsel, Deborah Okey, who, according to court records, had final say on what information Goodyear’s lawyers disclosed.

Judge Silver concluded that Hancock, Musnuff and Goodyear made “repeated deliberate decisions to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents.” Goodyear appealed the sanctions order, and the U.S. Supreme Court has directed the lower court to recalculate the amount.

All three lawyers have left their jobs, and declined to comment.

The director of the Center for Auto Safety, Jason Levine, said that while just somewhat more than 40,000 of the tires were distributed for use on motor homes between 1996 and 2003, Goodyear has acknowledged that more than 3,000 had problems. Most were handled through warranty adjustments, but there were also hundreds of property damage claims and the 98 claims of injuries or deaths.

Failures reported at this high a rate, Levine said, appear to make this “the most dangerous or potentially most dangerous per unit tire that’s ever been on the road.”

This story was produced by FairWarning, a nonprofit news organization based in Southern California that focuses on public health, consumer and environmental issues. A longer version of the story appears at www.fairwarning.org.









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