Monday, March 10, 2003

SUVs - Suddenly Upside-down Vehicles

At Ford, why wasn't safety job 1?

Like other car companies, Ford has consistently fought mandatory increases in fuel economy for SUVs and other vehicles by invoking fears that higher mileage requirements would result in smaller, more dangerous vehicles. Safety has been used to beat back fuel efficiency regulations. But Ford's own internal documents and a series of recent court cases reveal a company that is shockingly indifferent to safety risks in the very class of gas-guzzling vehicles it most wants to shield from increases in fuel economy standards—SUVs.

An Environmental Working Group analysis of internal company documents never before made public reveals that Ford engineers knew in 1982 that the original sport-utility vehicle, the Bronco II, was prone to roll over during safety tests. With modest changes that did not significantly reduce rollover potential, the Bronco II was renamed the Explorer in 1990.

The Bronco II was so unstable that Ford’s engineers cancelled test drives out of fear for the safety of Ford’s professional test drivers. Ford executives dismissed their own engineers’ urgings that they widen the vehicle to make it safer, went into production anyway, and then paid a former company engineer $5 million to lie about what Ford knew and when they knew it in 30 lawsuits against the company over 8 years.

When confronted with this evidence in 2001, a federal judge in Goff v. Ford concluded that as a matter of law, Ford had engaged in a conspiracy to commit fraud [Excerpt | Full document]. Other courts have delivered equally harsh assessments of Ford’s conduct in SUV rollover cases. In a 1999 decision, the Indiana Court of Appeals referred to Ford’s behavior in bringing the Bronco II to market as: "highly reprehensible" and "the crassest form of corporate indifference to safety . . . of the consumer" [Excerpt ]. Government records show that 3,826 people died in Bronco II and Explorer rollovers between 1983 and 2001.

Too dangerous for professional test drivers, but safe enough for families

Automakers didn’t just stumble onto the sport utility vehicle. They researched and studied its every detail, looking for the perfect combination of power, comfort, appeal and convenience. Market research helped Ford arrive at just the right look and feel for what became an extraordinary chapter in America’s love affair with the automobile.

But at least one SUV manufacturer, Ford, had equally important information on the dangers of SUVs that company executives systematically and deliberately ignored. An Environmental Working Group review of internal Ford Motor Company documents obtained in a series of SUV rollover cases against Ford shows that:

3,826 people died in Bronco II and Explorer rollovers between 1983 and 2001.

  • Ford engineers abandoned critical road tests with the Bronco II, which, with modest changes, went on to become the Explorer, because these safety tests were too dangerous for test drivers [Full document]. In safety tests at speeds as slow as 30 miles per hour, the Bronco II repeatedly tipped up on its protective outriggers, clear proof that the vehicles were very likely to roll over in the hands of the driving public. [Full document] | [Full document]. Less than six months after discontinuing the live test drives, Ford went into production, with no substantial modifications of the vehicle.
  • Ford ignored its engineers’ recommendations to widen the track of the SUV and lower the center of gravity. Ford knew as early as 1981 that the Bronco II would roll over during safety tests. In the spring of 1982, Ford engineers recommended that only one change, a 3 to 4 inch widening of the vehicle track, would produce a "major improvement" in "roll characteristics." [Full document]. Ford ignored the safety and design recommendations of its own engineers and went into production after widening the SUV by just 4/10ths of an inch. According to internal Ford cost projections, it would have cost just $83 per vehicle to widen the vehicle and lower the center of gravity to achieve the desired "stability index" factor of 2.25. [Full document] | [Full document].
  • In anticipation of rollover litigation, Ford’s Office of General Counsel gathered more than 100 critical engineering documents before the production of the Bronco II and ordered engineers to "sanitize" them. Ultimately, many key documents disappeared. Realizing that the company’s own engineering documents showed that the Bronco II had a high propensity to roll over, injure and potentially kill a significant number of people who purchased it, Ford took the unprecedented step of gathering 113 specific documents critical to the defense in rollover litigation prior to the production of the first Bronco II [Full document] | [Full document]. Engineers were ordered to "sanitize" documents prior to collection; 53 of these documents have since disappeared from the Office of General Counsel [Full document] | [Full document].
  • These key documents were not disclosed to the National Highway Transportation Safety Administration (NHTSA) during the 1988-1990 Bronco II investigation. Ford said it “didn't notice” that NHTSA asked for Bronco II development documents [Full document].
  • When litigation began to heat up, Ford paid a former company engineer, David Bickerstaff, $5,000,000 over eight years to lie in a series of 30 rollover cases [Full document]. In June 1990, Bickerstaff sent Ford a letter where he offered to be paid $4,000 a day to "assist you [Ford] in preparing me [Bickerstaff] in Ford’s favor" [Full document]. After he sent the letter, but before he was paid by Ford, Bickerstaff testified (truthfully) that as a Ford engineer he was concerned about the Bronco II’s propensity to roll over, as indicated by its low stability index [Full document]. After he was hired and paid by Ford, he testified that while working for Ford he was not concerned about the vehicle’s low stability index and that the stability index was nothing more than an "arbitrary number." [Full document]. Bickerstaff also helped Ford rig a videotape designed to convince juries that the Bronco II was not likely to roll over, by loading a Bronco II with 900 lbs of lead shot on the floorboards and seats in a manner that artificially lowered the center of gravity [View document]. In April 2001, a federal judge concluded that, as a matter of law, Ford and its witness Bickerstaff engaged in a conspiracy to commit fraud [Full document]. In June 2001, the South Carolina Court of Appeals decided that rollover victims could pursue a claim of "fraud upon the court" to re-open their case and seek a new trial because of Bickerstaff’s questionable arrangement with Ford [Full document]. A final decision on whether these victims will be able to seek a new trial is pending before the South Carolina Supreme Court.

In safety tests at speeds as slow as 30 miles per hour, the Bronco II repeatedly tipped up on its protective outriggers

The myth of safety versus fuel efficiency

The auto industry has a lot riding on the perceived safety of the SUV. More than just a sales point, the "safety" of SUVs has been an effective shield against increased federal fuel efficiency requirements.

Graphical Pull Quote Ford knew of the Bronco Two's defects

Because they are classified as light trucks — the Explorer, for example is built on Fords’ light truck chassis — SUVs are subject to special, lower fuel efficiency standards. This loophole in the law has provided a significant economic benefit to car companies because it has allowed them to avoid investments in fuel efficiency in their entire SUV line.

Automakers aggressively defend the enormous waste of fuel caused by the surge in SUV popularity by arguing that SUVs are safer than more fuel-efficient cars — and that making vehicles more fuel efficient would endanger owners and their families. This strategy has been a success. Since 1974, the auto industry and its allies in Congress have fought legislation proposing any improvement in SUV gas mileage standards.

The Bronco II, with modest changes, went on to become the Explorer.

The underlying message is clear: Auto companies care about your safety. Supporters of increased fuel economy do not.

Nothing could be further from the truth.

At least one company, Ford, cannot be trusted to tell the truth about the safety of the SUV. The company engaged in a conspiracy to cover up known hazards of the vehicle, "lost" or perhaps destroyed 53 documents directly relevant to the issue, and paid an expert $5 million to lie about SUV safety in 30 different lawsuits.

All of this leads us to wonder, if Ford is willing to produce a product it knows will injure and perhaps kill a certain percentage of customers simply to maintain profit margins, does the company really have driver safety at heart when its lobbyists aggressively fight easily-achievable standards for higher corporate average fuel economy?

 

Part I: Faulty Design

In 1982, Ford began production of the Bronco II, the original SUV and the precursor of the Ford Explorer. The Explorer is built on essentially the same chassis as the Bronco II, and the two vehicles have many similar characteristics. [View document].

During the development of the Bronco II, it became clear that Ford would not meet the company’s stated safety and engineering design goals. The car was too high and too narrow to "reduce rollover propensity" or "respond safely to large steering inputs which are typical of accident avoidance or emergency maneuvers." [View document].

As early as February 1981, Ford engineers identified the Bronco II’s poor stability index as a key problem with the vehicle. According to engineering documents from that time, for an additional cost of $83 per vehicle, Ford could have made a substantially safer car. [Full document] | [Full document]. These changes were rejected by Ford management, however, because they would have delayed production and sale of the vehicle. Ford did not widen the SUV three to four inches until model year 2002, almost 20 years after the engineers’ warnings.As part of vehicle development, test vehicles are driven on test tracks through several different types of turns and maneuvers. One such turn, a J-turn test, simulates a sharp turn to test the rollover propensity of the vehicle.

Internal Ford documents show that during a 1981 test drive the fully loaded Bronco II test vehicle tipped up on to its protective outrigger or had inside front wheel lift in every J-Turn run at a mere 30 MPH.  Engineers, including David Bickerstaff, who was later paid by Ford to lie about SUV safety in 30 lawsuits brought against Ford by rollover victims, recommended that Ford consider widening the Bronco II to increase the stability index—that is, make it more stable and reduce the vehicle’s propensity to roll over. 

Ford ignored the safety and design recommendations of its own engineers

A March 17, 1982 "Bronco II Handling Evaluation" document showed that more than 9 turns resulted in lift off, and 5 turns resulted in outrigger contact, which means that the vehicle tipped on its side.  With this document, Ford engineers presented Ford management with several options to decrease the likelihood of rollovers:

Development recommends pursuing items 1, 2, and 3 below if a small improvement in roll characteristics during a "J" turn maneuver is deemed acceptable, or pursuing item 4 below if a major improvement is required. Incorporation of item 4 would most likely cause a delay in Job #1.

1. Release a pitman arm that provides maximum toe steer and slows the steering system down. This action would affect turning diameter and require revised steering steps.

2. Release a higher ratio power steering gear.

3. Release a 1-1/8 inch diameter front stabilizer bar and delete all rear stabilizer bars.

4. Increase track width 3-4 inches.

— 3/17/82 Program Report. Page 2.

Ford chose Proposal 2 instead of the safer Proposal 4, which would have resulted in a "major improvement" of "roll characteristics," because increasing the track width would delay "Job #1," the scheduled date the first Bronco II would roll off the assembly line. In one test run configuration in early 1982, Ford engineers widened the prototype track two inches. This simple change prevented the vehicle from tipping over at speeds up to 60 MPH in the J-Turn, which was a drastic improvement from the original prototype.

Ford apparently did no other testing of a prototype with a widened track. In a subsequent Program Report in April 1982, Ford engineers repeated their recommendation that the Bronco II production vehicle needed to be widened 3-4 inches to reduce the possibility of vehicle rollover during sharp turns. This proposal was also rejected.

Graphical Pull Quote increase track width three to four inches

In addition to a delay in Job #1, management did not want to widen the track of the Bronco II because a wider vehicle would limit sales abroad. The narrow track of the vehicle would allow Ford to market the Bronco II in other countries, especially Japan.

Once it was clear that management would not permit the safer option of widening the vehicle 3-4 inches, Ford engineers, including Bickerstaff, evaluated other options to make the Bronco II less likely to roll. One Bickerstaff memo shows that engineers considered lowering the center of gravity of the vehicle by substituting 14-inch wheels for the programmed 15-inch wheels. Engineers also developed contingency plans to lower the tires, widen the track, and other changes in an attempt to decrease rollover propensity. Management finally agreed to widen the production level vehicle, but only 4/10 of an inch, not the recommended 3-4 inches.

1982 Bronco II Cancellation of Test Drives out of "concern about the safety of our track drivers"

The engineers’ recommendations for a 3-4 inch widening of the track were not based only on design principles, but also on first-hand experiences on the test-drive track. Internal Ford documents and court records show that in 1982, Ford suspended driving tests of the Bronco II for fear that its own professional test drivers would be injured or worse in a rollover accident.

A Ford engineer explained under oath why the tests were cancelled:

Q. Tell the Jury, if you will, what happened in the last limits J-turn test that Ford did at the Arizona Proving Ground in May, 1982. What happened to that Bronco II?

A. The . . . under the J-turn maneuver, the vehicle went up on two wheels, the outrigger failed, it dug into the cement and pole-vaulted the vehicle over.

Q. And it landed on its top.

A. It rolled over. Where it landed, I don’t recall.

Q. So is it correct, sir, that the reason the Ford Motor Company stopped limit J-turn testing of the Bronco II vehicle in May, 1982, and went to the computer simulation was concern about occupant safety?

A. Well, its concern about the safety of our track drivers, yes.

Q. Yes.

A. And our engineers.

Q. So you stopped doing the severe limits J-turn testing in May 1982, because you were concerned about your own test drivers. Right?

A. Right?

Q. You were concerned about the safety of your own test drivers. Right?

A. Yes. Because of the . . . we couldn’t depend on the outriggers supporting the vehicle.

Q. Now, that was eight months before job one. Is that right?

A. That is correct.

— Deposition of Ford Engineer James McClure, pages 109, lines 4-21 and page 110, lines 1-10.

"Ford conducted no further pre-production on-road safety testing of the Bronco II."  After abandoning live limits tests on the track, Ford used the ADAMS computer model for final limits testing. Ford’s report of the ADAMS simulation demonstrated again that the Bronco II Production Level Vehicle experienced inside two-wheel lift at 32 MPH during a Lane Change Maneuver test, which is an emergency avoidance maneuver. Ford did not simulate the Lane Change Maneuver at high speeds despite the computer model’s capacity to do so. 

 

Part II: Disappearing Documents

Before a single vehicle rolled off the assembly line, Ford executives at the highest level knew that the Bronco II SUV was unsafe, and would roll over, injure and potentially kill a significant number of the people who bought it.

In a highly unusual move, prior to production of the Bronco II, the Ford Office of General Counsel (which reports to the CEO and Board of Directors) collected all the documents related to the testing of the Bronco II.  On July 27, 1982, right after the Engineering Department signed off on the Bronco II, the Office of General Counsel began its document roundup .

Comprehensive identification of documentation of matters pertaining to Bronco II Handling has been requested by OGC. In order to establish what documentation is present in the files, please establish a list of documents which may have any bearing on Bronco II Handling, including a discussion of track width and vehicle height.

On August 3, 1982, at the request of the Office of General Counsel, Ford engineers began to collect all documents related to the testing and design of the Bronco II. Ford engineers testified that this round up was "unusual" and that all the documents went to the Office of General Counsel. Ford’s Office of General Counsel instructed the engineers to review each document related to the Bronco II and "sanitize" each document, including making additions or edits, if necessary, before turning the documents over to the legal department.

Engineers were ordered to
“sanitize” documents

Disappearing Documents

After collecting, reviewing, and "sanitizing" the Bronco II documents, the Ford engineers turned the documents over to the Office of General Counsel. Even more troubling than this pre-production document round up is that fact that out of the 113 documents collected and stored by Ford’s Office of General Counsel, 53 documents mysteriously disappeared while in the custody of Ford’s attorneys. One of the missing documents was a "product change request form," a standard Ford form whereby engineers request a modification to a proposed product. In this instance, the product change form apparently requested a two inch widening of the Bronco II track. Even though such a document would require many layers of sign off, it simply disappeared. Another document that disappeared was an attachment to a memo entitled "Seven Risk Factors", which detailed risks associated with the design of the Bronco II.

Graphical Pull Quote

In January 1983, a few months after this document round up, Ford manufactured and began to sell the first of 700,000 Bronco II SUVs. An additional 3.7 million Ford Explorers, with only modestly reduced rollover potential, were sold between 1990 and 2001.

Ford did not turn over these development documents, development testing results, or information about the cancellation of test drivers to the National Transportation and Safety Highway Administration (NTSHA) during the 1988-90 investigation of the safety of the Bronco II. The NTSHA requested the following from Ford:

Furnish the number and copies of all owner reports, ... investigations, memoranda, and other records from all sources either received or authorized by Ford, or which Ford is otherwise aware, pertaining to (a) rollover, stability or similar performance or (b) the subject alleged defects of the Bronco II ... (c) any information Ford may have comparing the Bronco II's stability factor (center of gravity height) with other motor vehicles.

Identify the parties involved and describe any and all tests and analyses at (1) Ford, ... or subject alleged defects, or (b) used to establish the stability of the Bronco II... Furnish copies of all reports, notes, tables, graphs, film, photographs, or similar documentation which were developed for each.

Furnish a copy of all documents not specifically requested which Ford believes are pertinent to the alleged defects and the resolution of the alleged defects, or were used in formulating its assessment of the alleged defects.

Ford said that it “didn’t notice ” that NTSHA asked for Bronco II development data.

 

Part III: Fraud on the Court

Just as Ford’s Office of General Counsel anticipated in the summer of 1982 when engineering documents were “sanitized” and collected, the Bronco II’s design flaws resulted in rollover fatalities and products liability litigation. The lawsuits began in the late 1980s.

Photo of David Bickerstaff

As Ford attorneys reviewed their internal documents in anticipation of defending Ford in these rollover lawsuits, the name "David Bickerstaff" kept appearing. Bickerstaff joined Ford in the early 1970s as a light trucks engineer. He authored a series of engineering reports and memoranda that detailed Ford engineers’ concerns that the Bronco II’s low stability index — the ratio of the vehicle’s center-of-gravity height to its wheel track width — would result in rollover accidents. Ford attorneys suspected that Bickerstaff might be called as a witness for the victims of rollover accidents. Ford hired Bickerstaff and his consulting firm in 1989 to make sure that he was on the Ford payroll. (Many aspects of the Bickerstaff saga were reported by Jim Morris in the Dallas Morning News (4/20/02), but the documents underlying the federal court's finding of conspiracy have not been public.)

In the spring of 1990, as Ford prepared its defense in a rollover case, Rosenbusch v. Ford, Ford lawyers decided to approach Bickerstaff and ask him to testify. Ford lawyers met with Bickerstaff in a Dearborn, Michigan, hotel room to discuss his relationship with Ford. Shortly after this meeting, Bickerstaff sent a letter to Ford’s outside lawyers. In this letter, Bickerstaff agreed to allow Ford to prepare him to testify "in Ford’s favor." Bickerstaff set his fee at $4,000 a day. As determined by a federal judge in West Virginia, this letter marked the beginning of the conspiracy between Ford and Bickerstaff to lie in court, and to prevent victims of rollover cases from receiving compensation for their life-threatening, permanent injuries.

When Bickerstaff testified in the Rosenbusch case in the summer of 1990, however, Bickerstaff and Ford attorneys were still in negotiations over Bickerstaff’s fee. Bickerstaff had not yet been paid by Ford and he testified truthfully in the Rosenbusch case. Specifically, Bickerstaff testified that he was concerned about the Bronco II’s propensity to roll over as indicated by the low stability index, adding that, "the stability index is a major factor or a big factor in roll over propensity."

Ford paid a former company engineer, David Bickerstaff, $5,000,000 over eight years to lie in a series of 30 rollover cases

This testimony is important because the Bronco II had one of the worst stability index ratings of any of the SUVs on the market. He also testified that the engineers who worked for him were concerned about the safety of the Bronco II. As the victim’s attorneys deposed Bickerstaff and asked him to review hundreds of engineering documents that detailed safety problems with the Bronco II, Ford attorneys quickly realized that if not managed properly, Bickerstaff could be a devastating witness against Ford.

Within 90 days of his July 9, 1990 deposition, Bickerstaff received his first check from Ford — a $100,000 payment for testifying in "Ford’s favor." Bickerstaff received this $100,000 payment, despite the fact that he testified as a fact witness in the Rosenbusch case, not an expert witness. Fact witnesses are witnesses who testify to the factual events and circumstances of a case: who did what, when they did it, and where. Expert witnesses possess specialized or technical knowledge that will assist the jury or the judge in understanding the case, so experts testify to the why and how of the case. Fact witnesses are rarely, if ever, compensated for their time. Expert witnesses are typically paid for their time working on the case. They are not, however, paid to make specific statements in anyone’s "favor."

In addition, Ford attorneys personally represented Bickerstaff at the deposition. This is rarely, if ever, done in the case of a witness who is not a plaintiff or a defendant in the case. This questionable arrangement suggests that Ford attorneys may have promised Bickerstaff that Ford would represent him personally to protect him against any repercussions from his testimony.

After Bickerstaff received his initial $100,000 payment, his testimony changed dramatically. The critical stability index was no longer a "major factor" in determining rollover propensity, but instead Bickerstaff stated, in direct contradiction to his testimony in Rosenbusch, that "the stability index . . . is strictly a comparative figure . . . an arbitrary number... [s]o I don’t attach any significance to it other than being, consistent maybe." This lie is material because the Bronco II had one of the worst stability indexes of any SUV.

Graphical Pull Quote memo from Bickerstaff to Ford

Bickerstaff also testified that the engineers working for him were not concerned about the Bronco II’s propensity to roll over. This lie clearly contradicted the Ford engineering documents he authored as well as his previous testimony.

Bickerstaff also inflated the level of his authority by claiming that he was the engineer who "signed off" and had the responsibility for deciding when the Bronco II was safe from a handling standpoint. But, Bickerstaff didn’t have that authority; he had left the company before the Bronco II was approved. This lie had the effect of unfairly bolstering his testimony as an expert, and according to the South Carolina Court of Appeals, was enough to allow the plaintiffs in the Chewning lawsuit to sue Bickerstaff and Ford for "fraud upon the court," including the claim that Ford’s lawyers paid Bickerstaff to lie on the stand.

By 1996, Bickerstaff’s rates for testimony and depositions "in Ford’s favor" had increased from $4,000 to $10,000 a day. Bickerstaff also received many more $100,000 payments from Ford, totaling $5 million over the eight years. As Ford’s "star" witness, Bickerstaff was now able to earn more in a week than he made in a year when he was a Ford employee.

When asked about the nature of these payments, Bickerstaff lied again. He argued that the payments were not for testimony, but for his engineering consulting services. Yet, the 1996 letter regarding his no-bid, single source consulting "contract" defines his consulting services "for the purposes of Bronco II litigation, defense attorney briefings, my testimony given by way of deposition, plaintiff conducted depositions, trial testimony, exhibit preparation and document review." The letter does not mention engineering work. With the help of David Bickerstaff’s testimony, Ford continued to settle Bronco II rollover cases around the country, including Brenda Goff’s case. In fact, Bickerstaff testified in deposition or trial testimony in at least thirty Bronco II cases across the country.

Ford lawyers met with Bickerstaff in a Dearborn, Michigan, hotel room to discuss his relationship with Ford.

Bickerstaff also acted as a consultant for Ford to develop visual aids to present to juries during rollover trials. Bickerstaff, along with other Ford engineers, helped the Ford Office of General Counsel develop a videotaped test run of a Bronco II designed to convince jurors that the Bronco II did not have a tendency to roll over during avoidance maneuvers.

Graphical Pull Quote 15 pound placed on floor in front of RH seat

But instead of using crash test dummies or containers of water to simulate the normal weight distribution of passengers in the vehicle, Ford engineers, including Bickerstaff, followed what is apparently Ford's standard practice for handling tests. Bickerstaff and the Ford engineers put nearly 900 pounds of lead shot on the floorboards and at the base of the seats, artificially lowering the center of gravity and countering the Bronco II's natural tendency to roll over. The vehicle appeared deceptively stable in the videotape prepared for presentations to juries.

These facts were enough to convince a federal judge that — as a matter of law — Ford and Bickerstaff "engaged in a conspiracy to commit fraud" upon Brenda Goff, her family, and her dead son. The fraud specifically identified by the court in this case was Ford’s agreement to pay an expert witness to lie under oath. At least twelve other lawsuits are pending in courts across the country to determine whether settlements or past cases can be reopened because of Ford's fraud on the court. Many of the other cases, including the Chewning case in South Carolina, deal with whether state law will allow a plaintiff to seek to reopen a closed case or a settlement because of an allegation of fraud. The Goff court, however, is the only court who has evaluated the evidence and answered the question whether Ford and Bickerstaff actually conspired to commit fraud.

When juries were presented with this evidence, they reacted harshly against Ford. In Commack v. Ford Motor Company, C.N. 93-33808, (Harris County, Tex. 1995), Bickerstaff was confronted on the stand with the 1990 "in Ford’s favor" letter. The jury awarded the victims $22.5 million in punitive damages. In Clay v. Ford Motor Company, C.N. 5:96CV2127 (N.D. Ohio 1998), Bickerstaff’s "consulting" arrangement with Ford and his ever-changing testimony were presented to the jury, who awarded the victims $17.5 million in compensatory damages.

During the Goff fraud trial in 2001, Bickerstaff was represented by criminal defense attorney Christopher Todd. After the 2001 West Virginia ruling in the Goff case, Bickerstaff fled to his native England.

 

Part IV: "Utter Indifference"

After her friend’s Bronco II rolled over, Pamela Ammerman was diagnosed with a crushed pelvis, closed head injuries, and was left permanently brain damaged. She currently has the mental capacity of a twelve or thirteen-year-old and requires a feeding tube. Lana Ammerman, her sister, suffered a broken thigh bone, and collapsed lung. She had to have extensive reconstructive surgeries. After the Ammermans filed suit against Ford, a jury awarded $4 million in compensatory damages and $58 million in punitive damages, the largest punitive damage award in Indiana history. The punitive damages were reduced by the trial judge to $13.8 million, which was upheld by Indiana’s highest appellate court. The Indiana Court of Appeals declared that Ford’s conduct in 1) canceling tests for its drivers for the Bronco II; and 2) potentially destroying discovery documents was "highly reprehensible." The court stated that Ford’s insistence to push for the production of the Bronco II even though it knew it would roll over demonstrated "the crassest form of corporate indifference to safety . . . of the consumer" and it showed "an utter indifference for the rights of consumers."  The Indiana Supreme Court and the United States Supreme Court refused to hear Ford's appeals of the Ammerman decision.

James Brown Quote I don't give a shit if they take it or not Graphical Pull Quote

In Ohio, in 2001, a probate judge found probable cause that Ford lawyers may have committed "fraud upon the court" in a case involving a two-year-old boy who was injured in a Bronco II rollover. Ford apparently did not submit a medical report, which indicated that the victim might have a traumatic brain injury, to the court-appointed referee who was responsible for evaluating the settlement. Furthermore, Ford attorneys represented to the Referee that the settlement was for $10,000, but in fact, Ford secretly paid the victim’s parents an additional $24,000. Without this key medical report that indicated the child could be brain damaged, Ford was able to quickly and secretly settle the case. Based in part on this judge’s finding of probable cause, a civil fraud case and decision on the merits is pending in Ohio State Court. A decision is expected any day. The victim now suffers from a traumatic brain injury. 

On February 14, 2003, a federal judge in Illinois sanctioned Ford's attorneys for the willful concealment of evidence in a 15 passenger van rollover case. Ford misrepresented to the court that Ford did not have any van rollover testing data, which could have assisted the victims in the prosecution of their case. Ford was caught in another lie when a Ford engineer testified that Ford vans did not roll over. Just a few weeks before the trial date, a former Ford test driver came forward and testified that he rolled over the van model during a Ford safety test. The test driver also declared that the same Ford representative who swore under oath that Ford vans did not roll over was present when the test driver rolled over the van. The judge sanctioned Ford's attorneys and declared that:

. . . I don't want to believe that lawyers would come and risk their licenses and livelihoods and professional reputations by making false statements to a court, but that's what is happening. Whether they're being set up by their client to do it, you know, it's a big company, and maybe they can do that sort of thing and hope they get away with it. 

He also stated that Ford's behavior "almost borders on criminal to be honest with you. Somebody is lying here. Somebody is committing perjury it appears to me or at least may be committing perjury."  The judge stated that he would consider instructing the jury that Ford was liable for the accident and the only question for the jury would be the issue of damages. Just like in the Goff case, Ford settled the case right after this ruling came down from the judge. The amount of the settlement is secret.

 

New Fraud Rulings Hit Ford, EWG Seeks Criminal Probe

A pair of court rulings in the last month that reopen SUV rollover cases against Ford Motor Company spell serious legal problems for the automaker. Citing these and earlier court rulings, the Environmental Working Group has petitioned the U.S. Department of Justice to conduct an unprecedented criminal probe of Ford’s pattern and practice of willfully concealing safety-related defect data from courts, federal regulators and consumers.

“With this ruling, Ford is sailing into the perfect legal storm of consequences for lying in court and bribing a witness. For that matter, who’s going to believe them now when they tell consumers they won’t give us higher mileage SUVs because they’re too worried about customer safety?” said EWG General Counsel Heather White.

Criminal statutes

DOJ Petition Exhibits

  • Exhibit A — West Virginia Federal Court Fraud Ruling
  • Exhibit B — South Carolina Supreme Court Motion for New Trial Ruling
  • “In Ford's Favor” Bickerstaff Letter
  • Bronco II Track Width Issues Memo
  • Exhibit C — South Carolina Appeals Court Motion for New Trial Ruling
  • Exhibit D — Ohio Court Fraud Ruling
  • Exhibit E — Indiana Court "Utter Indifference" Ruling
  • Exhibit F — NHTSA "Plain English Letter"
  • Exhibit G — Illinois Federal Court Sanction Ruling
  • Exhibit H — Econoline Van ADAMS Rollover Affidavit
  • Exhibit I — Econoline Van On-Road Rollover Deposition
  • Exhibit J — Michigan Court Default Judgment
  • Exhibit K — Michigan Court $546,836 Sanction Ruling
  • Exhibit L — Dallas City Attorney Crown Vic Lawsuit Release
  • Exhibit M — Louisiana Attorney General Moratorium on Crown Vics

 

Acknowledgments

AUTHORS

Heather White, EWG General Counsel
Richard Wiles, EWG Senior Vice President
Brendan DeMelle, EWG Analyst

FUNDING

This project was supported by the Global Environment Project Institute, a private foundation dedicated to promoting the sustainability of life on earth. EWG bears sole responsibility for the project’s research and publications.

 


The Documents

Document Excerpt: Goff v. Ford Transcript

Brenda Goff’s ten-year-old son died in a Bronco II rollover accident in 1993. Goff sued Ford, and settled in 1995, in large part due to the false testimony of former Ford engineer David Bickerstaff. Four years later, after details of Bickerstaff’s arrangement with Ford was uncovered, Goff sued Ford again. When presented with the evidence in the spring of 2001, a federal judge in West Virginia concluded that Ford and Bickerstaff had engaged in a conspiracy to deliberately lie to Ms. Goff, her attorneys, and the court.  Full document.

 

Document Excerpt: Ford v. Ammerman Transcript

The pages below contain the declaration of the Indiana Court of Appeals about Ford's conduct in 1) canceling tests for its drivers for the Bronco II; and 2) potentially destroying discovery documents. The Indiana Supreme Court and the United States Supreme Court refused to hear Ford's appeals of the Ammerman decision. Full document.

 

McClure Cross-Examination

During cross examination under oath a Ford engineer admits that in 1982 the company suspended limits tests specifically designed to measure rollover propensity out of fear for the safety of the test drivers. In this case the vehicle pole-vaulted over its protective outrigger. No significant changes were made to reduce rollover propensity prior to production of either the Bronco II or the Explorer.  Full document.

 

APO Results Summary

The Bronco II repeatedly rolled up on its outriggers during avoidance maneuvers at just 30 miles per hour. Normally, engineers intend the vehicle to slide, as opposed to roll, during such turns.  Full document.

 

Fort Bronco II Handing Evaluation

The Bronco II repeatedly rolled up on its outriggers during avoidance maneuvers at just 30 miles per hour. Normally, engineers intend the vehicle to slide, as opposed to roll, during such turns.  Full document.

 

Handling Recommendations

In 1982, engineers recommended a 3 to 4 inch widening of the vehicle track (width) if "major improvements" in "roll characteristics" were to be achieved. The Bronco II/Explorer line of vehicles was not widened until model year 2002, when the Explorer track was widened 2.5 inches. There were 3,826 deaths in 3,802 Bronco II and Explorer rollovers between 1983 and 2001.  Full document.

 

Bickerstaff Cross-Examination

Full document.

 

Ammerman Trial

Ford considered and rejected modifications to the Bronco II that would have made it far more stable. The total cost for the change was just $83 per vehicle; $54 for parts, plus labor. Full document.

 

Bickerstaff Deposition (Diaz)

Before being paid by Ford, Bickerstaff says that the stability index is a "major factor" in predicting rollover propensity. The Bronco II had one of the lowest stability index ratings of any vehicle on the market when it was introduced. After being paid by Ford, Bickerstaff begins testifying untruthfully that the stability factor is not particularly important, and that it is just a relative measure.  Full document.

 

Bickerstaff Letter

According to a federal judge in West Virginia, this letter marked the beginning of a conspiracy to commit fraud on the part of Ford and former Ford engineer David Bickerstaff, in more than 30 rollover cases. Expert witnesses like Bickerstaff are supposed to testify truthfully in their particularly area of expertise. They are not supposed to be "prepared" to testify in a particular party’s "favor."  Full document.

 

Chewning Appeal Letter

Rollover victims across the country are attempting to reopen closed cases or settlements where Bickerstaff lied. At least 12 cases are pending on whether state law allows the victims to even ask to have their cases and settlements reopened. Eight years after the Chewnings lost their case, the South Carolina Court of Appeals agreed that their fraud claim allowed them to seek to reopen their case. Ford has appealed and a decision from the South Carolina Supreme Court is expected soon.  Full document.

 

Ford Proposals

Ford considered and rejected modifications to the Bronco II that would have made it far more stable. The total cost for the change was just $83 per vehicle; $54 for parts, plus labor.  Full document.

 

Fisco v. Ford

Correctly predicting that Ford would be sued for rollovers in the Bronco II, Ford’s lawyers rounded up 113 documents relevant to track width, stability index, vehicle height, and test track results, and then lost or destroyed 53 of the most important ones. Multiple copies of many of these 53 documents were circulated throughout the company, yet these key documents mysteriously disappeared.  Full document.

 

Ford Sanitizes Documents

Correctly predicting that Ford would be sued for rollovers in the Bronco II, Ford’s lawyers rounded up 113 documents relevant to track width, stability index, vehicle height, and test track results, and then lost or destroyed 53 of the most important ones. Multiple copies of many of these 53 documents were circulated throughout the company, yet these key documents mysteriously disappeared.  Full document.

 

Sanitized Technical Report

Correctly predicting that Ford would be sued for rollovers in the Bronco II, Ford’s lawyers rounded up 113 documents relevant to track width, stability index, vehicle height, and test track results, and then lost or destroyed 53 of the most important ones. Multiple copies of many of these 53 documents were circulated throughout the company, yet these key documents mysteriously disappeared. Full document.

 

Bronco II Dynamic Handing Simulation

Full document.

 

Test Conclusions

Full document.

 

Japanese Sales

Full document.

 

Parill Deposition

Full document.

 

Ford Response

Full document.

 

Bickerstaff Examination

Full document.

 

Johnson v. Ford Trial Proceedings

Ford's misrepresentations to the courts extend beyond SUVs. On February 14, 2003, a federal judge in Illinois sanctioned Ford's attorneys for the willful concealment of evidence in a 15 passenger van rollover case. Full document.

 

 

 

 

 

 

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