News Coverage
Court Revives Ford Rollover Suit
Claim Of Fraud Could Have Wide Impact
Published April 27, 2003
An unsuccessful Ford rollover plaintiff can try to revive his product liability suit based on a claim that the automaker fraudulently concealed evidence, the South Carolina Supreme Court has ruled.
The ruling could have an impact nationally on similar cases that are either pending or have previously settled, attorneys told Lawyers Weekly USA.
Plaintiffs' attorneys in the South Carolina case and others involving serious Bronco II rollover accidents said that a decade's worth of charges that Ford Motor Co. falsified testimony and concealed harmful documents is about to be vindicated.
Ford "[makes] Enron look like the Boy Scouts, and tobacco look like a bunch of nuns," said Edgar F. Heiskell, a plaintiff's attorney in Virginia who has litigated nearly 30 Bronco II rollover cases and numerous Ford Explorer rollover cases.
Heiskell is the attorney who uncovered what has proven to be a damaging piece of evidence about Ford - information that may have influenced the South Carolina Supreme Court to undue a judgment from 1993.
But Ford spokeswoman Kathleen Vokes said there is no smoking gun and that the South Carolina holding in no way reflects negatively on the automaker.
"All the court held was that the plaintiff made sufficient allegations [of fraud upon the court by Ford]. But that's all they were. [The plaintiff] still has to prove it," she said.
Rolling Over
The South Carolina case involves plaintiff Ray H. Chewing Jr., who suffered injuries in a 1990 rollover accident while driving his Bronco II.
He filed a products liability claim against Ford, and, in 1993, after a 16-day trial, a jury returned a verdict in Ford's favor.
Plaintiff's attorney Mark W. Hardee credits the jury's verdict to the testimony of David J. Bickerstaff, a former engineer for Ford.
Bickerstaff who worked extensively on the design and testing of the Bronco II in the early 1980s, was a witness in many of the approximately 600 cases brought by drivers, passengers and families of those injured or killed in Bronco II rollover accidents.
In Chewning's case, and many others with similar circumstances, the engineer testified that, based on his assessment, the Bronco II was safe and did not have a propensity to rollover.
More specifically, Bickerstaff testified that the Bronco II's "stability index" was not a major factor in rollover propensity. He also testified that those working under him at Ford were not telling him the vehicle needed to be improved from a rollover standpoint.
However, according to Heiskell, Bickerstaff's testimony was not always so favorable to his employer.
Heiskell said that, in a July 9, 1990 deposition, Bickerstaff testified that stability index was a major factor in a vehicle's resistance to rollover and that people working under him in 1982 were telling him that the Bronco II needed to be improved from a rollover propensity standpoint.
Heiskell said he believes he knows why Bickerstaff, who left Ford in 1982, might have changed his story.
According to Heiskell, in June 1990, lawyers for Ford met with Bickerstaff in a hotel room in anticipation of Bickerstaff's deposition testimony in a Bronco II rollover case in Texas.
A couple of days following the meeting, Bickerstaff sent a letter to two of Ford's attorneys, which read in part: "I feel I should be reimbursed my current rate. I would suggest you retain our services to assist you in preparing myself, in Ford's favor, as we discussed per our phone conversation of 6/18/90."
Court documents suggest that Bickerstaff has been paid as much as $5 million for his favorable Ford testimony over the years.
Ford refers to the payments on purchase orders as consulting fees, unrelated to any testimony.
An important point, said Heiskell, is that the 1990 letter written by Bickerstaff did not surface until 1995, despite earlier discovery requests. Heiskell said that while he was questioning Bickerstaff during a deposition in 1995 for a rollover trial, reference was made to the letter, and Ford finally produced it.
Heiskell said that Ford also failed to produce a second document - a testing memo from Ford to the Arizona Proving Ground acknowledging stability and design problems with the Bronco II.
In 1998, armed with the letter, the memo, and some allegedly conflicting testimony of Bickerstaff from earlier rollover cases, Chewning filed an action against Ford and Bickerstaff, asserting that Bickerstaff perjured himself during the 1993 trial and that Ford concealed documents during the course of discovery.
After Ford removed the action to federal court, a judge dismissed all claims except the cause of action for fraud upon the court. The federal court remanded the fraud claim "and such other related claims in equity, if any, as the state court may allow to be added by amendment."
Chewning refiled his case in South Carolina state court asserting fraud upon the court and an independent action in equity for fraud. The lawyer also asserted that the judgment in his original action should be vacated.
The trial court dismissed the complaint as untimely and held that the complaint asserted only allegations of intrinsic fraud, which were insufficient to set aside a verdict. The trial judge also held that the amended complaint failed to allege fraud with particularity as required by the South Carolina Rules of Civil Procedure and did not "identify any allegedly perjured testimony by Bickerstaff in the underlying products liability trial, only subsequent cases after Chewning's."
The Court of Appeals reversed, and the South Carolina Supreme Court upheld the decision in a case of first impression.
"In considering collateral attacks on final judgments, a court must balance the interest of finality against the need to provide a fair and just resolution of the dispute," the court said, noting that "there is no statute of limitations when a party seeks to set aside a judgment due to fraud upon the court."
Extrinsic fraud, the court said, "is 'fraud that induces a person not to present a case or deprives a person of the opportunity to be heard [whereas] intrinsic fraud...is fraud which was presented and considered in the trial...which misleads a court in determining issues and induces the court to find for the party perpetrating the fraud. Perjury by a party or a witness is intrinsic fraud."
Unlike intrinsic fraud, "where an attorney - an officer of the court - suborns perjury or intentionally conceals documents, he or she effectively precludes the opposing party from having his day in court," the court said.
The Impact
The South Carolina decision could have a wide impact on previous and future Bronco II rollover cases, plaintiffs' attorneys said.
"This case opens the door for many [plaintiffs] who settled thinking that Ford would use Bickerstaff as a star witness and where they thought they probably wouldn't prevail," said Heiskell.
The lawyer said that, of the roughly 600 cases involving Bronco II rollovers that have settled with Bickerstaff having been slated to testify, as many as 300 of them - those that settled before the Bickerstaff letter came to light - could be reopened.
"It just depends on whether or not courts from other states follow South Carolina," said Hardee. "But courts do not tolerate parties and attorneys conspiring to manipulate the court system, even if judgments are final."
It is "pretty fundamental for a jurisdiction to say, 'Yes, judgments are final and we don't reopen cases, but where there is a showing of fraud on the court used to procure that judicial result, we won't let our system be corrupted and hide behind a rigid doctrine of finality,'" said Heiskell.
Ford, however, stands by its position that it has done nothing wrong.
"Plaintiffs and defense groups pay their expert witnesses. That's not uncommon," Ford spokeswoman Vokes said.
Although Vokes admitted that the Bickerstaff letter may have been "poorly worded," she said that "there's nothing there," and insisted that Ford has always produced every document requested of it in a timely fashion.
"A lot of things have been pulled out of context which sound very negative, but the bottom line [in this case] is that there was no finding," she said.
And as for the overall safety of the Bronco II, Vokes reiterated the company's position that, statistically, there are no more Bronco II accidents than there are with any other vehicles on the road.
As for the hundreds of suits brought over the vehicle, Vokes blamed "our litigious society" for the numbers.
"Unfortunately, we have drunk drivers who run off the road, hit a tree, and get burned when their airbag deploys, and then they sue us," she said.
Attorneys for Ford and Bickerstaff in the Chewning case could not be reached for comment.
The Environmental Working Group, a Washington, D.C.-based not-for-profit corporate watchdog group, has been keeping tabs on Ford over Bronco II litigation.
EWG recently filed a letter with the U.S. Department of Justice asking the government to conduct a criminal probe of what the organization calls "Ford's pattern and practice of willfully concealing safety-related defect data from courts, federal regulators and consumers."
Arianne Callender, a senior lawyer for EWG said she "suspect[s] there will be some investigation ... but won't know until there is an indictment."
The reason for EWG's interest, according to Callender, is that Ford has claimed for years that it cannot make a more environmentally sound vehicle without compromising safety.
EWG's position has been that Ford has already compromised safety. EWG has detailed histories of Ford rollover litigation on its website: www.ewg.org.
Ray H. Chewning, Jr. v. Ford Motor Company (Lawyers Weekly USA No. 9925535) David J. Bickerstaff, and David J. Bickerstaff and Associates, Inc., South Carolina Supreme Court. No. 25627. April 14, 2003.
