Court sanctions Goodyear, attorneys for discovery abuses

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December 27, 2012

Court sanctions Goodyear, attorneys for discovery abuses 

Courtney L. Davenport

In a lengthy opinion detailing multiple instances of discovery abuses, a federal judge in Arizona has ordered Goodyear Tire and Rubber Co. and two of its attorneys to pay attorney fees and costs incurred after the abuses began. (Haeger v. Goodyear Tire & Rubber Co., No. 2:05-cv-02046 (D. Ariz. Nov. 8, 2012).)

“Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice,” wrote Judge Roslyn Silver. “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.”

In the 1990s, Goodyear launched the G159 tire, marketing it for use on recreational vehicles (RVs). But the tire was designed for pickups and delivery trucks in the city, not long distances on open roads, and reports of sudden detreading and accidents began piling up.

“It was designed for a vehicle that would never go on the interstate and be used for hours at 70 to 75 mph. Heat is the worst enemy of the tire, and as the tire goes around it builds up heat. If the tire is not built to withstand that, you get tread separation,” said Richard Morrison of Montgomery, Ala., who has represented several families injured in G159-related accidents. “Goodyear was aware of this, the field history showed this, and unfortunately the tire has caused a lot of injuries and loss of life.”

In 2003, Leroy and Donna Haeger were traveling in an RV with their son and daughter when a front tire detreaded, and the RV tipped over. They all suffered serious injuries. The Haegers sued Goodyear. At the same time, several other G159 cases were ongoing in other courts. All of the plaintiffs alleged that prolonged heat caused tire degradation even when the tire was properly inflated, putting Goodyear on notice that heat would be a central issue in the cases.

During discovery in 2006, the Haegers requested that Goodyear produce “all test records for the G159 tires, including, but not limited to, road tests, wheel tests, high-speed testing, and durability testing.” Goodyear gave a general objection, claiming the request was overly broad and unduly burdensome, but added a supplemental response producing Department of Transportation (DOT) tests on the tire at 30 mph. The Haegers’ counsel, David Kurtz, sent a follow-up letter to Goodyear’s outside counsel, Graeme Hancock, saying that his “interest is finding the rest of the test data.” Hancock emailed Goodyear’s “coordinating counsel,” Basil Musnuff, saying Goodyear should either respond to portions of the letter or “figure out that we have a fight on our hands on these points and prepare a counter argument.”

Shortly after Hancock’s email, the Haegers disclosed their expert and his report. Musnuff emailed Hancock in January 2007, saying that the expert “appears to draw the conclusion that the subject tire was only tested at speeds up to 30 mph from the fact that the only test data we produced is the DOT test data. Of course, our discovery response was limited to the DOT test data because plaintiff had not yet identified their defect theory at the time. Now that plaintiffs are pinpointing speed as an issue, perhaps we need to supplement our discovery responses to show the testing of this tire at various speeds. Thoughts?”

Within a month, Musnuff found copies of tests on both speed and heat impacts, but did not give them to the plaintiffs. Two months later, Hancock told the court that Goodyear had responded to all outstanding discovery, but that was not accurate. Hancock and Musnuff then deposed the plaintiffs’ expert, knowing that he was making incorrect assumptions based on an incomplete record.

Goodyear finally produced the speed tests in June 2007—six months after defense counsel became aware of them and one month after the expert deposition. After discovery formally ended in October 2007, the court denied the plaintiffs summary judgment and granted Goodyear partial summary judgment. The parties reached a confidential settlement in April 2010 on the first day of trial.

During this time, three other G159 suits resolved. In those cases, the courts—after protracted discovery disagreements—ordered Goodyear to produce every document related to the G159 tire, and Goodyear gave the plaintiffs the high-speed tests and the heat-rise tests, as well as tests of other components. But the courts agreed to keep the documents under seal and prohibited the plaintiffs from sharing the information with other plaintiffs. After a jury awarded $5.6 million to the plaintiffs in one of the other cases, a newspaper reported that the plaintiffs had relied on internal heat and speed testing. In May 2011, the Haegers filed a motion for sanctions against Goodyear, Musnuff, and Hancock.

“The extent of the improper conduct was, in our view, so substantial that we had an obligation to bring it to the attention of the court, particularly since so much of it involved false statements made directly to a federal judge,” said Phoenix attorney Michael O’Connor, who is one of the Haegers’ counsel. “The Haeger family pursued what they thought was a straightforward product liability claim. They endured years of excessively difficult litigation, and they deserved a just resolution.”

The court agreed, finding that the proper sanction would be the amount of attorney fees and costs the plaintiffs incurred after Goodyear’s supplemental response to the Haegers’ first request. Goodyear and Musnuff are responsible for 80 percent of the sanction, and Hancock is responsible for the remaining 20 percent.

“Goodyear and its attorneys adopted a strategy, implemented in this case to great effect, to resist all legitimate discovery, withhold obviously responsive documents, allow plaintiffs and their experts to operate under erroneous facts, disclose small subsets of documents as late as possible, and otherwise attempt to turn this case based on a motor vehicle accident into an Arizona version of Jarnydce and Jarndyce [a reference to Charles Dickens’s Bleak House],” Silver said.

Notably, Silver ruled that Goodyear is required to produce a copy of her order in every G159 case initiated in the future. Morrison said that although there won’t be many cases filed because G159 tires have often been replaced, the order could have a “serious impact” on any cases filed.

“This will give attorneys who represent people killed or injured by G159 tires a roadmap of the type of documents that are out there and help them go into the cases with their eyes wide open to what Goodyear has done to block discovery in the past and how to handle it,” he said.

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