By on April 12, 2010

The mainstream media’s big story of the day is Toyota’s “sticky pedal” strategy in the courtrooms across the land. And it has little or nothing to do with actual gas pedals, and everything to do with stalling in producing the court ordered company documents that could show known deficiencies in product design and safety. AP analyzed lawsuits covering a range of complaints, and in response to requests for company documents, Toyota has consistently claimed it does not have them, or simply ignored court orders to produce the documents. The pattern being uncovered supports the claims made by Dimitros Biller, a former Toyota attorney who sued (and settled) with Toyota after contending that the company deliberately withheld evidence in older rollover cases.

A typical and fairly recent example from 2005:

In a Colorado product liability lawsuit filed by a man whose young daughter was killed in a 4Runner rollover crash, Toyota withheld documents about internal roof strength tests despite a federal judge’s order that such information be produced, according to court records. The attorneys for Jon Kurylowicz now say such documents might have changed the outcome of the case, which ended in a 2005 jury verdict for Toyota. “Mr. Kurylowicz went to trial without having been given all the relevant evidence and all the evidence the court ordered Toyota to produce,” attorney Stuart Ollanik wrote in a new federal lawsuit accusing Toyota of fraud in the earlier case. “The Kurylowicz trial was not a fair trial.”

It’s not that the other automotive manufacturers all roll over in court exactly, but Toyota’s reputation among the legal profession is solidly established. “Automobile manufacturers, in my practice, have been the toughest to deal with when it comes to sharing information, but Toyota has no peer,” said attorney Ernest Cannon, who represented the family of 35-year-old Lisa Evans, who died in 2002 in the Houston suburb of Sugar Land.

AP’s review of cases turns up numerous and repeated actions by Toyota that can best be described as evasive, and deceptive.  Objecting to turning over documents is one thing; but claiming that the documents don’t exist is another.

Toyota hid the existence of its roof strength tests in numerous cases. A new potential class-action lawsuit filed in California on behalf of two women left paralyzed by separate Toyota rollover crashes contends that recently uncovered company documents contradict sworn testimony by Toyota officials that the company had no written standard for how far vehicle roofs could be crushed. The long-hidden documents indicate Toyota did have such a standard: roofs could come no closer than a half-millimeter from test dummies’ heads in a rollover crash.

“This type of conduct by the Toyota defendants is illegal, immoral and unprofessional,” said attorney E. Todd Tracy in a similar recent lawsuit accusing Toyota of fraud in older cases. “The Toyota defendants’ cloak and dagger games must be terminated.”

One of the key advantages Toyota uses is the Pacific Ocean: company headquarters in Japan are distant, remote and not readily accessible through legal actions:

Said Graham Esdale, a lawyer in Montgomery, Ala., who has sued Toyota. “If Ford or General Motors tells you something and you don’t believe that it’s right, you can get a court order to go get access to the documents instead of relying on them. We can just go there and start poring through documents. We don’t have that with the Japanese manufacturers.”

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22 Comments on “Toyota’s Courtroom Tactics: Intended Stalling, Deception and Hidden Documents...”


  • avatar
    relton

    As Nixon learned, it’s not the crime, it’s the coverup that kills you.

    Younger readers can google Watergate for the details.

    Bob

  • avatar
    porschespeed

    As opposed to the free and easy access you have to Ford, GM, and Chrysler documents. Ask the litigants in any of the dozens of cases against any of those manufacturers how their actions are proceeding.

    How about all the people who had their cases rendered moot with the GM and Chryco bankruptcies?

    Hiding documents, flouting the law, ignoring the court, being deceptive? SOP in every lawsuit against a major corporation anywhere on the planet.

  • avatar
    Juniper

    Excuse me, I have to go to my Coutroom, and get some fresh cout.

  • avatar
    Daanii2

    As a lawyer who has represented Japanese clients in litigation (although not Toyota), I can say that compared to American clients they are very forthcoming with documents and other information. I think Toyota is getting a bad rap here.

    • 0 avatar
      Steven02

      I am not sure you can really say that they are or aren’t because they are Japanese. Reading the article, seems like several lawyers would disagree with your assessment.

    • 0 avatar
      Robert.Walter

      The issue here is cultural, but most likely not Japanese culture, but a distinct culture centered in Toyota City. Corporate culture and natural culture may merge, be complimentary, or may even be two distinctly separate and contradictory things.

    • 0 avatar
      Daanii2

      Not to say that my comments can be taken at face value and no one else’s can. I’m just as subjective as anyone.

      But I don’t think these lawyers should be given the credence this article gives them. In litigation these days, lawyers treat every issue like it is of burning importance. It’s not.

      “This type of conduct by the Toyota defendants is illegal, immoral and unprofessional.” Give me a break.

    • 0 avatar
      1996MEdition

      “This type of conduct by the Toyota defendants is illegal, immoral and unprofessional.”

      Is that from the Jackie Chiles’ School of Law (“lewd, lascivious, salacious, outrageous!”)?

  • avatar
    bmoredlj

    Toyota Quality can save you money, but apparently they’re committed to making sure you don’t save on legal fees. Drivers of all imported vehicles need to be cognizant that if something goes horribly wrong and they want to take the route of litigation, that process could potentially be far more of a headache than if they were dealing with an American-based company.

    Sounds awful, I know, but it’s a pro: ‘Buy American, they’re usually easier to sue!’

    • 0 avatar
      wsn

      What good is it to win a lawsuit if you are dead in a roll over?

      You are less likely to die in a roll over in a Toyota than in a GM/Chrysler, according to IIHS data.

    • 0 avatar
      Steven02

      wsn,
      Do you have a link to such data? I was looking at rollover information, and found some data on roof crush, but nothing that Toyota does particularly well that others do not.

  • avatar
    50merc

    There’s a reason why our judicial system is called adversarial. Each side gets its hired guns (i.e., lawyers) and launches no-holds-barred albeit unarmed battle. Don’t expect the judge to keep it a “fair fight.” I don’t want to speak on Toyota’s (or any other corporation’s) defense, but it should be kept in mind that any concession–any hole in the armor–will be exploited relentlessly by the plaintiff’s bar. The discovery process is a major tool to harass and exhaust a defendant.

    As for aggressive lawyers, I’d guess Disney’s counselors rank at the top.

    • 0 avatar
      Robert.Walter

      50merc: ”…it should be kept in mind that any concession–any hole in the armor–will be exploited relentlessly by the plaintiff’s bar. The discovery process is a major tool to harass and exhaust a defendant.”

      Awareness of a consequence due to a decision which later leads to a suit resulting in a concession, precedent, or loss, is an integral part of the system of legal checks-and-balances which should prompt a company to behave properly when it comes to making that decision.

      Re. discovery, this door swings both ways. Without discovery, there would be scant opportunity for a plaintiff to proove malfeasance, and the defendent would, with superior resources, be totally capapable of running out the clock on the plaintiff’s source of funds.

  • avatar
    Robert Schwartz

    Allow me to add to 50merc’s excellent comment. The articles I saw in this mornings newspapers were composed of material that was apparently sourced from plaintiff’s lawyers. They, at this stage, are trolling for clients and trying to soften up the battlefield. They would love to see a prosecutor with grand jury powers jump in. They would also feel good if Congress or DoT shaped the narrative.

    I scanned a couple of paragraphs, concluded ho hum, and moved along. There is no fire, yet, nor is there any real smoke, yet. All there is are trial lawyers blowing steam. Nothing to see here, folks. Move along.

    • 0 avatar
      Robert.Walter

      These kinds of things take time to sort themselves out.

      4Q last year, few were questioning the pedal entrapment issue, then came the Saylor death car, then the January recall. Even then, few questioned the pedal’s contribution to this issue, then came the CTS revelation. Yet, even then, few were willing to claim malfeasance on Toyota’s part, some focussing on the political doings in D.C. and the GM conflict of interest red herrings, rather than the factual narrative carrier wave.

      Congressional subpoena resulted in Toyota producing documents which a) demonstrate a fix being implemented in foreign markets before the issue was reported, as required by law, to ODI, b) some unnamed person in the Toyota hierarchy “unexplicably” ordered the same fix not to be made to US-market vehicles…

      As this glacier of discovery moves forward, more evidence about Toyota’s bad corporate citizenship is revealed…

      This story seems far from being over…

  • avatar
    Chicago Dude

    “One of the key advantages Toyota uses is the Pacific Ocean: company headquarters in Japan are distant, remote and not readily accessible through legal actions”

    If the documents in question relate to product safety, the plaintiffs can file a petition with the US International Trade Commission. They have the power to STOP imports if a foreign company gives them the runaround.

    The US ITC also has the ability to adjudicate intellectual property disputes and there is a fairly recent trend to use the US ITC instead of the Federal Court system when dealing with potentially hostile foreign companies. Nothing scares a foreign company like being threatened with a binding order that says their products aren’t allowed off the boat at the port of Long Beach until a bureaucrat in Washington is satisfied with their document production.

    • 0 avatar
      Steven02

      I agree, this would be the way to go, but I don’t see this happening any time soon. I can imagine the head of the ITC getting some very angry phone calls about this. Also, many of the cars made today by Toyota are not imported.

    • 0 avatar
      Chicago Dude

      It’s true that many Toyota vehicles are produced in the USA these days, but many key components are imported and those can be stopped.

      I also imagine that the regular Federal court system has the power to deal with “unsafe” products being manufactured in the USA.

    • 0 avatar
      Wirey1

      First of all, I don’t think anyone’s going to threaten to halt sales. Especially since Japan owns so much US govt. debt. Be interesting to see what happened if the debt wasn’t there, though.

      Second, I was always under the impression that Toyota’s plants were Foreign Trade Zones.
      http://en.wikipedia.org/wiki/Foreign_trade_zone
      http://ia.ita.doc.gov/ftzpage/tic.html

      It’s “Made in the USA,” but with tariff privileges. Since FTZ’s are outside of the US as far as Customs is concerned, might be sales could legally be halted for products produced therein.

  • avatar
    ihatetrees

    Given the well documented lack of ethics and scientific integrity within the trial bar, I’d give Toyota broad leeway – however brutal their legal tactics may seem.

    And you gotta love the AP’s lewinski-grade lapping of the trial bar with their accident description:

    …A new potential class-action lawsuit filed in California on behalf of two women left paralyzed by separate Toyota rollover crashes contends that recently uncovered company documents contradict sworn testimony by Toyota officials…”

    I didn’t know that Toyotas roll over like my sister’s dog (and paralyze people).
    It’s funny how the driver never rolls his car over. Impacts with other vehicles never seem to roll cars over, either. They always seem to roll over, like Fido.

  • avatar
    YotaCarFan

    I’m sure all companies, including Toyota, use high-powered lawyers to avoid paying out for liability lawsuits regardless of whether the company is at fault. Still, the anecdotal evidence cited regarding vehicle rollover trial tactics does make Toyota’s leadership appear callous and unethical. Nonetheless, is there a regulation in the US requiring car roofs provide a certain amount of protection in a rollover situation? If not, then the lawsuits are without merit.

    On a lighter note: Here’s an article about a lady who backed her Toyota RAV4 SUV through a fence, fell 20 feet, landed with the car on its roof, and walked away with no injuries other than an entitlement affliction causing her to blame the home builder for not installing a stronger fence.

    http://www.gazette.net/stories/12022009/poolnew180451_32531.shtml


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