Reprinted from The Safety Record, Vol. 5, Issue 2, March / April 2008
SAN DIEGO, CA — On June 19, 2003, a Goodyear claims administrator allegedly made an admission so rare and startling that the tiremaker’s counsel immediately terminated the deposition, negotiated a settlement and arranged for every scrap of the deposition’s existence to be destroyed.
The claims administrator, Kim Cox, reportedly admitted that Goodyear knew that its G159 tire – an RV tire model at the center of dozens of lawsuits – did not “perform properly” on Class A motor homes. And a U.S. District Court Judge from San Diego, California has ruled that Cox’s deposition is not subject to a Protective Order filed in the 2002 case of Phillips v. Goodyear. Judge Magistrate Nita L. Stormes ruled against a motion to modify the Protective Order to allow five plaintiffs in other pending G159 cases to have access to Cox’s deposition testimony, because Cox’s deposition was never protected to begin with.
Lawyers litigating against Goodyear alleging the same defect applauded the ruling.
“This could be the straw that breaks Goodyear’s back,” says Christopher Roberts, of Smith & Fuller, PA in Belleair Bluffs, Florida, one of the intervenors in this case. “I’ve never seen any defendant go to such great lengths to destroy sworn testimony.”
In June 2002, plaintiffs Harold and Georg-Anne Phillips filed suit against Goodyear, alleging that the manufacturer’s G159 275/70R/22.5 tire was defective, after experiencing three tread separations on their
Windsor Class A motor home. One week later, Goodyear and Monaco voluntarily recalled the G159 from 1999, 2000 and some 2001 Windsor motor homes.
The Phillipses made their initial complaint in August 2000, when two of the tires on the left rear side of the motor home failed, damaging the rear of the vehicle. Goodyear reimbursed the couple for the cost of replacement tires and for repairs to the motor home. But a year and a half later, the Phillips’ were again the victims of a tread separation crash. While traveling on Interstate 10 in Arizona, the motor home’s left front tire failed, causing the Phillipses to crash into a roadside embankment resulting in serious injuries and property damage.
While the Phillips’s case was swiftly settled on the heels of Cox’s aborted deposition, Goodyear has defended or is defending at least 30 other tread separation cases involving G159s on Class A motor homes, based on its claim that the G159 was not defective.
The G159’s Troubled History
Motor home manufacturers and Goodyear have known about the problematic combination of a G159 (275/70R22.5) and a Class-A motor home chassis since 1999. In the last decade, there have been two recalls and one “Product Service Bulletin” replacing these tires because of the inadequate load margin. And the Cox deposition aside, Goodyear publicly stated two years ago that these tires were not designed for RVs and has since replaced them with a more robust version.
In June 1999, Fleetwood notified NHTSA that it was recalling 17 Class-A American Heritage motor homes because of inadequate total front tire weight capacity. The company replaced the 275/70R22.5 Goodyear G159s with a larger Michelin XZA 275/80R22.5. By the summer’s end, Fleetwood greatly expanded its drive to remove the G159 from its products, with a much larger recall. On October 1, 1999, Fleetwood again initiated a recall for 275/70R22.5 Goodyear G159 tires, this time on some 3,400 Class-A models made from 1996 to 2000 after four accidents involving two fatalities. The accidents Fleetwood reported to NHTSA occurred on September 15, 1998; July 7, August 29 and September 9, 1999.
In its October Safety Defect Report to NHTSA, Fleetwood said “the subject motor homes, when built with a disproportionate front axle weight distribution, fully equipped, loaded with cargo, and operated with improper tire pressures, may experience an overload condition on a front tire. Overloading of a tire can lead to tire failure which can result in loss of vehicle control and result in personal injury and/or vehicle damage.”
Fleetwood’s remedy was to replace the G159 275/70R22.5 with the larger 275/80R22.5 tires. In January 2000, after receiving two more complaints – of a blowout and of vehicle instability – from owners of the Bounder model, a Fleetwood vehicle outside the recall population, NHTSA opened a Recall Query. In this investigation, NHTSA focused on the potential problem of overloading because of the motor homes’ multiple slide-out design. In 2001, NHTSA closed the investigation after meeting with the manufacturer and concluding that these smaller models were not subject to the same problems.
On June 26, 2002, one week after the Phillips filed suit, Goodyear released a Product Service Bulletin announcing that the Monaco Coach Corporation would be issuing a letter to owners of 1999, 2000 and certain 2001 Windsor model Class-A motor homes offering to replace their G159 275/70R22.5 tires with 295/80R22.5 LR H, G391 tires.
“The letter will inform the customer that it has come to Monaco’s attention that in a number of instances, it was found that tire air pressure was being reduced in order to gain better ride comfort and in doing so tires were operated in an under-inflated and overloaded condition,” the Goodyear bulletin said. “In the interest of customer satisfaction, Goodyear and Monaco are offering to replace the original 275/70R22.5 LR H, G159 with 295/80R22.5 LR H G391 tires. The higher aspect ratio tire will allow customers to operate at a lower inflation pressure that will give a more comfortable ride while maintaining tire loading that is within the operating range of the tire.”
Further, Goodyear told its dealers that they needed to stress the importance of knowing the individual weights at each corner of the vehicle.
But other RV manufacturers were apparently were still using the G159 275/70R22 after 2002. The owner of 2003 a Beaver Monterey reported on an enthusiasts’ web forum that his G159 suffered a blowout at 20,000 miles. By 2006, Goodyear was not using either the G159 or the G391 tire for RVs. Instead, it was marketing an entirely different model that had been developed for recreational vehicles, the G670 RV. According to Tim Miller, Marketing Communications Manager for Goodyear, the G159 was not an appropriate application for RVs and noted “the G159 was a truck tire that was used on RVs.”
This problem is not new for either Goodyear or the RV industry. Since 1998, Goodyear tires have been involved in a total of four recalls. In addition to the Monaco and Fleetwood recalls mentioned above, Goodyear tires were blamed for failures on Newell Class A Coaches. In 2000, Newell noticed “[a] disturbing number of steer axle blowouts on coaches equipped with this low profile tire. Goodyear has introduced redesigned low profile tires to us at least three times since 1998. We have experienced a similar pattern of front tire tread separations and blowouts on each of these redesigned tires, typically after approximately 10,000 to 15,000 miles of accumulated road use. We also manufactured a limited number of Newell motor coaches during this time period with Michelin 315/80R22.5 tires. We have not experienced a similar failure pattern with Michelin tires.”
Newell replaced the Goodyear tires with Michelins.
The Battle over the Cox Deposition
The deposition of Goodyear’s claims administrator Kim Cox was taken in 2003, about a year after the G159 Windsor recall. As part of the settlement in the Phillips case, the deposition was never transcribed, and all the court reporters’ notes and recordings of the deposition were returned to Goodyear’s counsel John McCormick “for destruction,” according to the Phillips’ attorney Guy Ricciardulli.
Four years later, Tim Casey, another attorney with a G159-motor home case, learned about the deposition and Cox’s admission that Goodyear was aware of the problems with that tire on RVs. On June 28, 2007, Casey and others filed a motion to intervene, petitioning the court to modify its Protective Order and allow them access to the Cox deposition. Over Goodyear’s opposition, Judge Magistrate Stormes recommended that presiding District Judge Rudi M. Brewster grant the motion to intervene so that the Court could determine whether its Protective Order should be modified.
Casey argued that Goodyear was using the Protective Order to prevent the truth about Cox’s deposition testimony from being revealed and used in other cases. He also argued that for public policy reasons and in the interest of avoiding duplicative discovery, the Protective Order should be modified so that he could access any remaining discovery materials from the 2003 Cox deposition and depose the witnesses to it on the substance of his testimony. Goodyear opposed any modification, arguing that the potential prejudice to its substantive rights outweighed the public interest and judicial economy.
Goodyear attorney McCormick claimed that Cox’s entire deposition testimony was confidential and protected because Mr. Cox was being deposed on confidential information relating to the company’s handling and evaluation of a property damage claim. McCormick recalled that Ricciardulli agreed to these terms.
Ricciadulli offered an opposing version of events. In his hearsay declaration, Ricciardulli said that he understood the Protective Order to cover trade secrets, research, development and other proprietary matters: “I did not believe, nor consider, that an admission of liability … by a Goodyear representative…could be properly treated as a proprietary or confidential business secret, such that it was entitled to protection from disclosure under the Protective Order.” He rejected McCormick’s contention that he agreed to stipulate the entire deposition as confidential.
The District Court did likewise. Judge Magistrate Stormes pointed out that there were no provisions in the Protective Order to designate entire depositions as protected and that Goodyear had destroyed all of the evidence that would have supported its claims. Stormes also called the destruction of the deposition “particularly risky,” given the pending claims against Goodyear in similar cases. She further ruled that even if Goodyear had been able to establish that the deposition was confidential, it had not shown good cause why it should remain protected. Stormes denied the motion to modify the deposition because it was moot and ordered the unsealing of some of the motions and attachments related to the Cox deposition.
Rob Ammons, of the Ammons Law Firm, in Houston Texas, who recently settled a G159 case against Goodyear, says that ultimately the ruling means “very little. It just means that Goodyear takes a black eye for what they did,” he said. “Their conduct after the deposition was taken is what is most alarming. I’ve never seen that before in 20 years of practice. I have heard of sealing testimony, but destroying it is novel.”
Roberts, however, sees a glimmer of hope. Roberts represents John and Kelly Schlamo, who, along with three passengers, suffered injuries – some serious and permanent – after their Fleetwood motor home crashed after a G159 tread separation in August 2004. If nothing else, Goodyear has created the appearance of guilt in destroying the deposition. A jury could easily conclude – regardless of what Cox might say in a subsequent deposition – that Goodyear considered his earlier admissions of liability extremely damaging. Goodyear even fought unsuccessfully to have Stormes decision – which set forth the facts of the confidentiality dispute – sealed.
“They went to great lengths to destroy it,” Roberts said. “And they have gone to great lengths to keep him from being questioned about it. Assuming [Cox] made an admission and assuming he will lie about it – which is likely – there will be a lawyer testifying against him who has no further stake in the outcome. This will be a breaking point issue for Goodyear.”