Ford Bronco II rollover lawsuits may be reheard as expert witness is challenged - Ford Forums

RPO83 · 04-23-2003, 05:40

Questions about the credibility of an expert witness in lawsuits involving rollover accidents are putting the Ford Motor Company on the defensive, as lawyers for accident victims press claims that Ford covered up evidence that its Bronco II sport utility vehicle was dangerous, the New York Times (NYT) reported on Wednesday.

The newspaper said that the South Carolina Supreme Court last week said that the estate of a man whose leg was crushed in a 1990 Bronco II rollover, Ray Chewning Jr., could seek to reopen a case he lost a decade ago.

In its ruling saying there was a basis to reconsider the case, the court cited claims by Chewning's lawyers that Ford paid the expert witness, David Bickerstaff, a former Ford engineer, to testify falsely on its behalf, the NYT said.

The newspaper said that decision followed a 2001 finding by a federal judge in a West Virginia case that there was evidence of a "conspiracy" between Ford and Bickerstaff to mislead the court. Ford settled that case, which involved a fatal accident, within two days of the judge's finding.

According to the New York Times, plaintiffs' lawyers hoping to reopen scores of accident cases around the country claim that Bickerstaff, who helped develop the Bronco II in the early 1980s, was paid millions of dollars after leaving Ford to alter his testimony about the vehicle's performance on early safety tests.

The paper noted that, before he became a paid witness for Ford, Bickerstaff said in a 1990 deposition that he had concerns about the Bronco II's stability. But after receiving the payments, he dismissed plaintiffs' lawyers' assertions in other cases that the vehicle � the predecessor to the Ford Explorer � had not performed well on the safety tests.

The New York Times said that Ford officials have adamantly denied the claims of misconduct, and the company has succeeded in preventing some cases from being reopened. No court has ever concluded that Ford or Bickerstaff engaged in fraud.

"There is no basis for allegations that David Bickerstaff changed his testimony as an expert witness for Ford," Ford spokesman Jon Harmon told the NYT. Ford, he added, "conducts its participation in legal proceedings with absolute integrity."

The paper said Bickerstaff could not be located for comment. Both Ford and his former wife told the NYT they did not know his whereabouts.

The New York Times said plaintiffs' lawyers are seeking to reopen another seven cases around the country on the ground that Bickerstaff's testimony was false. In all, he testified or was deposed in 45 cases involving Ford and was identified as a possible witness in another 100; results of some of those may be challenged as well, the New York Times said.

Source: Just-auto.com

Stacy94PGT · 04-23-2003, 08:08

Lawyers Taking Aim at Ford on Veracity of Expert
By DANNY HAKIM
New York Times

DETROIT, April 22 � Questions about the credibility of an expert witness in lawsuits involving rollover accidents are putting the Ford Motor Company on the defensive, as lawyers for accident victims press claims that Ford covered up evidence that its Bronco II sport utility vehicle was dangerous.

Last week, the South Carolina Supreme Court said that the estate of a man whose leg was crushed in a 1990 Bronco II rollover, Ray H. Chewning Jr., could seek to reopen a case he lost a decade ago. In its ruling saying there was a basis to reconsider the case, the court cited claims by Mr. Chewning's lawyers that Ford paid the expert witness, David Bickerstaff, a former Ford engineer, to testify falsely on its behalf.

That decision followed a 2001 finding by a federal judge in a West Virginia case that there was evidence of a "conspiracy" between Ford and Mr. Bickerstaff to mislead the court. Ford settled that case, which involved a fatal accident, within two days of the judge's finding.

Plaintiffs' lawyers hoping to reopen scores of accident cases around the country claim that Mr. Bickerstaff, who helped develop the Bronco II in the early 1980's, was paid millions of dollars after leaving Ford to alter his testimony about the vehicle's performance on early safety tests.

Before he became a paid witness for Ford, he said in a 1990 deposition that he had concerns about the Bronco II's stability. But after receiving the payments, he dismissed plaintiffs' lawyers' assertions in other cases that the vehicle � the predecessor to the Ford Explorer � had not performed well on the safety tests.

Ford officials have adamantly denied the claims of misconduct, and the company has succeeded in preventing some cases from being reopened. No court has ever concluded that Ford or Mr. Bickerstaff engaged in fraud.

"There is no basis for allegations that David Bickerstaff changed his testimony as an expert witness for Ford," said Jon Harmon, a Ford spokesman. Ford, he added, "conducts its participation in legal proceedings with absolute integrity."

Mr. Bickerstaff could not be located for comment. Both Ford and his former wife said they did not know his whereabouts. Plaintiffs' lawyers are seeking to reopen another seven cases around the country on the ground that Mr. Bickerstaff's testimony was false. In all, he testified or was deposed in 45 cases involving Ford and was identified as a possible witness in another 100; results of some of those may be challenged as well.

"There are a lot of plaintiffs' attorneys out there who have no knowledge of this," said Edgar F. Heiskell, a lawyer in Charlottesville, Va., who represents the Chewning estate. "They settled their cases thinking Bickerstaff was a truthful and honorable witness for Ford."

Stephen Gillers, a law professor at New York University who has studied some of the cases, said that the developments in South Carolina and West Virginia posed "a big problem" for Ford. Courts, he noted, "loathe the idea of having to do things over" and only reluctantly order re-examinations of the results of earlier trials.

"Now at least two courts have found that there is sufficient reason to conclude that Bickerstaff and Ford conspired unlawfully," Mr. Gillers added. Ford's lawyers noted that the South Carolina ruling made no judgment on the allegations of fraud, only saying there was sufficient ground to allow the plaintiff to seek to reopen the case.

Proving fraud could be quite difficult. Tab Turner, a plaintiffs' lawyer who has sued Ford on behalf of numerous clients, said Mr. Bickerstaff "had pretty much taken a 180"-degree turn in his testimony, but added that did not necessarily add up to misconduct.

"They had a former employee that had some evidence, and they did what all major corporations would do: they gave him contracts and tried to keep him happy," Mr. Turner said. "The dispute is, Does that amount to fraud?"

Sport utility rollovers are a continuing challenge for the auto industry. After the spate of fatal rollovers linked to Ford Explorers equipped with Firestone tires. Congress mandated new tests of vehicles' proclivity to roll over. Rollover accidents, the subject of thousands of lawsuits, were the focus of a Senate hearing in February, and they are a top concern of the Bush administration's chief auto safety regulator.

In 1990, after leaving Ford, Mr. Bickerstaff was deposed in a rollover case and said that the prototype Bronco II had scores on a testing scale, known as a stability index, that were not satisfactory to him. He had wanted to make design changes, he said, "to reduce the propensity for rollover" because it "was a safety factor."

"The stability index is a major factor or is a big factor in rollover propensity," he said.

What's new?

Shortly after the case, Mr. Bickerstaff wrote to Ford suggesting "you retain our services to assist you in preparing myself, in Ford's favor."

Ford agreed, and began paying him amounts that totaled $4 million to $5 million over eight years, according to Mr. Bickerstaff's testimony in the West Virginia case. The plaintiffs' lawyers say that his testimony then appeared to shift. In a 1994 trial, Mr. Bickerstaff testified that the stability index was "an arbitrary number," adding "I don't attach any significance to it."

In the South Carolina case, he testified that the index was useful only in describing "physical characteristics of the vehicle class," distinguishing, say, between sport utilities and passenger cars.

Mr. Harmon, the Ford spokesman, said that Mr. Bickerstaff testified consistently that the stability index "was just one of many factors that need to be taken into account to determine the dynamic safety performance of a vehicle."

Plaintiffs' lawyers have never proved fraud in any case involving Mr. Bickerstaff. A federal judge in Texas called the 1990 letter to Ford "a smoking BB gun at best," adding it could be used to "erode his credibility" but suggesting that claims that it amounted to perjury were strained.

Numerous questions about the safety of the Bronco II have been raised in litigation against Ford.

Documents uncovered in a 1999 Indiana case, Ammerman v. Ford, indicate that prototypes performed poorly on hard-right-turn tests at speeds as low as 25 miles per hour; Ford officials say those preproduction issues were resolved. Nonetheless, a state appellate court called the Bronco II "dangerous and defective," adding that the "continued push to production of this product after all of the internal protestation to the contrary is the crassest form of corporate indifference to the safety of the ultimate user."

The court upheld a $13.8 million damage award against Ford.

Two investigations of the Bronco II by the National Highway Traffic Safety Administration were closed without action, but the agency noted in 1998 that the percentage of fatalities in Bronco II single vehicle rollovers was higher than for other S.U.V.'s and was "a cause for concern."

Rollovers have also been the focus of lawsuits involving 15-passenger vans built by Ford. In January, a federal court judge in Chicago suggested that Ford concealed both computer simulations and road testing the company performed on the E350 Super Club van.

"Somebody is lying here," Judge Robert W. Gettleman, an Illinois federal district court judge, said in a hearing. "It's a big company, and maybe they can do that sort of thing and hope they get away with it."

Ford settled that case.

The Bickerstaff cases have been publicized by the Environmental Working Group, an activist group that investigates corporate and government practices and now has its sights trained on the S.U.V.

"These rulings show safety hasn't been Ford's priority," said Heather White, the group's general counsel.

Kathleen Vokes, a Ford spokeswoman, said the group was "taking statements out of context and repeating unfounded allegations."

(Photo)Ford settled claims by the family of a woman who was killed in a rollover of the 1986 Bronco II.