Your Right to Know versus A Corporation's Desire to Hide Information about Dangerous Products: The Case of Toe v. Cooper Tire
By Leslie A. Bailey, Public Justice Staff Attorney
In courts across America, a battle is being waged that matters to everyone who drives a car. The fight typically begins after a terrible crash involving a tire made by Ohio manufacturer Cooper Tire and Rubber Company. The victims of the crash or their surviving relatives file a lawsuit against Cooper, alleging that the Cooper tire was defective and caused the accident. As part of the pre-trial discovery process, the victims request that Cooper provide them copies of relevant documents that will enable them—and perhaps eventually a jury—to determine whether the Cooper tire indeed caused the accident, and thus whether Cooper is legally responsible for their injuries. This is where the fight really begins.
Public Justice has been fighting unnecessary court secrecy for three decades through a special litigation project we call Project Access. As part of this project, I went head-to-head a few weeks ago with Cooper in an Iowa courtroom, in the case of Toe v. Cooper Tire. While we await the court’s ruling, here’s a report on the case and some of the important issues it raises.
Cooper’s history of hiding evidence
To say Cooper thrives on secrecy is an understatement. The company is notorious for digging in its heels, refusing to turn over relevant documents, and complying with the rules only when forced to do so by a court. Several courts have found that Cooper improperly withheld documents, intentionally concealed evidence, and even destroyed materials it knew it was supposed to preserve. For instance, a federal court in Arkansas sanctioned Cooper for destroying documents related to the design and manufacture of the tire involved in the accident in the lawsuit—despite being on notice that the documents should be turned over to the victims. (Cooper claimed the destruction was just part of its “retention policy.”) A South Carolina court found that Cooper intentionally withheld documents that discussed tires returned for tread separation failures, despite the fact that the documents were stored on Cooper’s computer system and that the court had ordered it to turn over the documents. The court noted that it was “deeply disturbed” by Cooper’s pattern of lying and hiding documents. Meanwhile, Cooper reported net sales of $883 million for the third quarter of 2010.
When the victims do succeed in obtaining the documents, it is often because they have agreed to a protective order that prevents them from sharing the documents with others or using them for any purpose other than the litigation. And if the documents turn out to implicate Cooper, the company (like many defendants in lawsuits involving dangerous products) often settles the claims—on condition that the documents revealing the danger stay secret. Because Cooper has been able to enter into secret settlements with many accident victims and their survivors, very few specific details are known about the dangers of Cooper tires and the company’s responses to those risks. Virtually every published report of a settlement involving allegedly defective Cooper tires notes that the terms are confidential.
This has happened before. For example, in 2000, the public learned that a safety defect in Firestone tires, when combined with the tendency of Ford Explorers to roll over, had caused at least 250 injuries and 80 deaths in the United States. Firestone had known about the defect for a decade. But each time a victim or her survivors sued the tire manufacturer, the corporation—like Cooper—settled the case on condition that the documents describing the defects be returned to it and hidden from the public and the press. Finally, a government investigation and television exposé forced Firestone to recall 14.4 million tires—6.5 million of which were still in use at the time. But many of those injuries and deaths may not have occurred if Firestone had not successfully kept information about its defective product from reaching the public.
The real-world effects of this kind of court secrecy were brought home to me in 2007, when I testified before a subcommittee of the Senate Judiciary Committee about the potential effects of a proposed new law that would require federal judges to consider public health and safety implications before sealing court records. Before it was my turn to testify, a man named Johnny Bradley told his story. He explained that, in 2004, he and his wife embarked on a cross-country drive from California to Mississippi to visit relatives on their way to new Navy recruiter assignments in Florida. Before the trip, Mr. Bradley decided to equip his Ford Explorer with new tires. Having heard recent publicity about the dangers of Firestone tires, he chose Cooper Tires. On a New Mexico highway, the tread on one of the rear tires separated, rolling the Explorer four times. Mrs. Bradley was killed instantly, and Mr. Bradley was in a coma for two weeks, unable to even attend his wife’s funeral. Mr. Bradley testified to Congress that he believes his wife would still be alive today if courts had not allowed Cooper to hide the evidence of the defect from the public.
When we learned that Cooper was trying to seal the records of the Toe trial—and hide evidence of another fatal crash caused by tread separation—we had to get involved.
The Toe trial
Not many cases against Cooper make it to a jury trial, but the Toe case was one of them. The facts of the case are tragic. In September 2007, a Plymouth Grand Voyager carrying six passengers—African immigrants on their way to work at a meatpacking plant—spun out of control after its left rear Cooper tire suffered catastrophic tread separation. The crash killed one passenger, left another a quadriplegic, and severely injured the others. The surviving victims and their families sued Cooper, claiming that the tire had design defects that caused it to fail catastrophically under normal driving conditions.
During discovery, the plaintiffs obtained key documents that prove—according to a court statement in an unsealed transcript of a hearing—not only that the Cooper tire in question was defective, but also that Cooper knew about dangerous defects in several of its tire lines and decided not to fix them because the costs would reduce the company’s profits. The parties stipulated to a protective order. When the case went to trial, Cooper tried to have the courtroom sealed—and even went so far as to request that the Court order that any member of the public wanting to enter the courtroom must agree to the protective order. The trial court emphatically rejected that proposal, emphasizing that “this courtroom is open to the public.” At the trial—which was observed by members of the press, high school students, and attorneys with other cases involving Cooper—many of the documents obtained in discovery were used as exhibits, displayed on large screens in open court in full view of the gallery, and discussed in testimony. On March 20, 2010, the jury found 7-1 for the victims. They determined that Cooper Tire bore complete responsibility for the accident and that the company had exhibited “willful and wanton disregard for the rights or safety of another.”
Cooper then asked the court for something extraordinary. It wanted to make the documents that were used as trial evidence and relied on by the jury confidential—essentially to seal the courtroom after the fact. Meanwhile, Cooper has publicly denied the jury’s findings, claiming that the tire was not defective and that the plaintiffs did not prove that a tire defect caused this accident.
Public Justice fights Cooper’s efforts to seal the Toe trial records
After learning of Cooper’s request that the trial records be sealed, the Center for Auto Safety, represented by Public Justice, moved to intervene in the Toe case to oppose the sealing. The Center for Auto Safety is a non-profit public interest research and educational organization founded in 1970, with over 15,000 individual members nationwide. It serves as a clearinghouse for consumers who want to obtain or report information about the safety of automobiles and tires. Each year, the Center receives more than 25,000 letters, telephone calls, and posts on its website from consumers about motor vehicles safety and related issues. The Center has a distinguished record of petitioning the National Highway Traffic and Safety Administration (NHTSA) to recall motor vehicles and components that are defective or unsafe, and has played a substantial role in some the largest auto product recalls over the last four decades, including the recent recall of over 5 million Toyota and Lexus vehicles for sudden unintended acceleration.
One of the most important things the Center does is analyze and report information about car safety on its web site, www.autosafety.org. Consumers can go to the web site and learn what defects are being investigated; order reports from the Center’s Safety Research Library; subscribe to monthly newsletters about car safety; learn about laws protecting car buyers; and file complaints about auto safety issues. Public Justice, for our part, has often fought for the public’s right of access to information on behalf of the Center and other public interest organizations.
Needless to say, Cooper vehemently opposed our attempt to intervene in the case, arguing that the public has no right to the trial records because they contain “trade secrets.” They’re wrong. As we argued to the Iowa court, both the First Amendment to the Constitution and common-law principles require that the Toe trial records not be sealed unless the court finds that compelling reasons for secrecy exist—and that those reasons outweigh both the public’s presumptive right of access to court records and the strong public interest in information related to safety. We believe the law is on our side.
The law protects the public’s right of access to court records
The law governing the public’s right to court records is rooted in two places: the protection of freedom of speech under the First Amendment to the U.S. Constitution, and “common law”—rulings by courts in specific cases. Under the First Amendment, there is a presumption of public access to court records, because court proceedings have historically been open to the press and general public. The right includes not just the ability to attend court proceedings, but also the right to view and copy judicial documents and records. Courts have held that these rights are essential in order to ensure fairness and respect for the judicial system, and that public participation serves as an important check on the judicial process.
Iowa has consistently recognized the public’s right of access to court records. For example, in one case, a defendant charged with arson and murder requested that his preliminary hearing be closed to the public on grounds that pretrial publicity would jeopardize his right to a fair trial—but the Iowa Supreme Court ruled that the hearing could not be closed unless secrecy was absolutely necessary. Similarly, in a different case, a newspaper publisher requested permission from the a sheriff to examine records revealing the names of persons whom had been issued concealed weapon permits. The trial court ordered a closed hearing and sealed the record, but the Iowa Supreme Court reversed, concluding that the public’s First Amendment right to public access in criminal cases applies equally to civil cases. Because the public’s right of access is so fundamental, it can only be trumped by something even more essential – and then only by imposing as few limits on access as necessary. Courts must therefore balance the public’s interests against the interests of the other party (typically a private corporation) in hiding things.
The public’s interest in access to court records is strongest when those records concern public safety—and that makes sense. For example, a federal appeals court held that judicial records relating to the content of tar and nicotine in various brands of cigarettes should not be sealed because they concerned public health. Likewise, in a case against a car manufacturer that had allegedly failed to fix a safety defect, the court found that the public’s strong interest in seeing the records submitted to a federal agency outweighed the company’s desire to avoid adverse publicity.
In the Toe case, we’ve argued that the court cannot seal the records of the trial unless it finds that Cooper’s interest in secrecy is stronger than the public’s right to know why, in a 7-to-1 verdict, the jury found that Cooper’s mass-produced tire was responsible for the fatal and catastrophic car accident. We argue that because Cooper has presented no such overriding interest, the court should deny Cooper’s request to seal the courtroom after the fact.
The December 17 hearing
Judge Carla Schemmel, who has presided over the Toe litigation since 2007—including the jury trial—heard arguments on December 17, 2010 in Des Moines. At issue was whether the documents and testimony used in the Toe trial can now be sealed away from public access. The hearing lasted for two hours. The first hour was devoted to the legal question of what parties may be permitted to intervene. (In addition to the Center for Auto Safety, several victims of Cooper tire-related accidents in other cases around the country are seeking to intervene in the case in order to gain access to the materials Cooper produced in discovery.) The second half of the hearing was dedicated to the Center’s opposition to Cooper’s efforts to seal the courtroom.
Cooper was represented by several attorneys and aggressively fought for secrecy. But we are hopeful that the public’s right of access to court records will ultimately prevail in the case. As one federal court put it, “Common sense tells us that the greater the motivation a corporation has to shield its operations, the greater the public’s need to know.” We couldn’t have said it better ourselves.
For more information about the Toe case, click here.
For more information on how Public Justice has been fighting the public’s right of access to information, click here.
About the Author
Leslie A. Bailey joined Public Justice in August 2004 and is a Staff Attorney. Leslie’s practice focuses on consumers’ rights, including fighting abusive mandatory arbitration clauses and federal preemption defenses; civil rights, including the rights of people with disabilities and prisoners; and challenges to unnecessary court secrecy orders.