There were a couple of different things that were going on in that period of
time. Number one was fuel economy. They were downsizing vehicles for fuel
The second thing was you could make light trucks like these sport utility
vehicles. These vehicles did not have to comply with federal motor vehicle
safety standards. ... These sport utility vehicles fell into a loophole area
called "multipurpose passenger vehicles." These vehicles had both off-road
capability and on-road capability. And, believe it or not, the federal motor
vehicle safety standards did not apply to those vehicles at that time.
The SUV was an end run around fuel efficiency regulation?
It was an opportunity to comply with the fuel efficiency regulations and
maximize your profits, because you had so much less development cost associated
with these vehicles than you did with a car.
So [in the] early 1980s, Ford and GM are competing to get to the marketplace
first. Does Ford make shortcuts in that process in terms of production in order
to meet production deadlines?
The Bronco II story is so known to everybody in the country that is interested
in automotive safety. It's sort of like the Pinto -- it is literally that
What happened with the Bronco II in 1982 was they could not keep the wheels of
this vehicle on the ground in very simple turning maneuvers; emergency turning
maneuvers, but simple, accepted, expected maneuvers that consumers were going
to be making; they could not keep the wheels of this vehicle on the ground.
There was a point in June 1982 where there was a meeting between the engineers
who were actually working on the Bronco II and Harold Poling, who, at that
time, was vice president in charge of all truck operations in North America. We
have the actual notes from that meeting where they were talking about
The very day after that meeting, a decision had been made that they were going
to produce this vehicle regardless of how poorly designed it was. We learned
through the testimony of engineers and through looking at the internal
documents that there was an instruction from the Office of General Counsel --
the lawyers working at Ford -- to reach out in the company and collect all of
the development documents about the Bronco II. So instead of focusing on trying
to fix this car six months before they were going to start selling it to
Americans, they turned the focus away from fixing the car to getting ready for
the onslaught of lawsuits that were going to come when people died in these
Specifically in the case of the Bronco II, did Ford engineers make
recommendations about stability that were ignored by management in favor of
meeting more severe production deadlines? Or did that only occur in the case of
What we learned in the Bronco II design and development history is that in June
1982, they were talking about widening the vehicle and lowering the vehicle.
But the problem there was timing again. They were six months from Job 1 [the
first date of production]. In order to get them to extend Job 1, the necessary
length of time in order to widen this vehicle and lower this vehicle and change
the suspension system on this vehicle, it's over 12 months -- 12 to 18 months.
Nobody working at Ford Motor Company had the courage to go knock on the
chairman and chief executive officer's door and say, "Look, I know we're in
this battle with Chevrolet and General Motors to get our vehicle out against
the Blazer. But by the way, we need another 18 months." Nobody was going to do
that, because that meant truck market share. That meant a whole lot more than
selling 200 or 300 or 400 Bronco II's. ...
In fact, the Bronco sold, what -- twice as many units as they anticipated or
The Bronco sold over two times as many as they expected in virtually every year
until they began to compete with the 4-door vehicles in the late 1980s. ...
When did litigation begin happening against the Bronco II regarding
accidents where people were injured and rollovers?
This vehicle first came out in 1983 as a 1984 model. By 1985, this vehicle was
having lawsuits, litigation-related problems. There were clearly rollovers
But the real kind of the steam engine of all of the litigation really didn't
begin until the 1988, 1989 time frame, because people began to understand by
1988, 1989 -- you're looking at Bronco II's and Suzuki Samurais, and Jeep CJs
-- and these things are upside down more than they're right side up by then.
Consumer Reports magazine is telling the American public to be careful
about these vehicles. ...
So is that on Ford's mind when they're designing the Explorer?
Oh, absolutely, yes. By 1985, Ford was already planning the 4-door Bronco II.
They actually didn't have a vehicle until 1986, 1987 timeframe when they had a
prototype to take out to a test track and physically begin looking at it. Their
goal to begin with was to be equal to or better than the Bronco II.
By the time we get to 1989 and publicity is surfaced about just how bad the
Bronco II is, the focus is no longer equal to or better than the Bronco II.
It's, "Let's make sure that we're not having the same kinds of problems with
this vehicle as we are with the Bronco II. And let's make sure that Consumer
Reports magazine, when they go test this vehicle, is not going to dump us
in the trash can like they did with us on the Bronco II."
So yes, they're extremely sensitive to the issue of vehicle rollover by the
time they take the first Explorers out to Arizona to test them in the 1988,
1989 time frame. ...
Specifically, what was the recommendation that management ignored by the
engineers that would have done the most to help make this a safer
When the engineers came back from Arizona in June 1989, and the wheels on the
Explorer had lifted off the ground at very low speeds in Arizona, the two
things that they were primarily aiming at in trying to get this vehicle fixed,
was widening this vehicle two inches and lowering the center of gravity two
inches. They knew from their experience that by making this vehicle wider and
lower, this vehicle was not going to have rollover problems [that] it
Did Ford management follow those recommendations?
They ignored it. ...
Does the Explorer have a stability problem, regardless of the tire? In other
words, what do we know about the Explorer's performance whether a tire comes
off of it or not?
Yes, this vehicle is unstable with or without a tire failure. A tire failure
precipitates the instability in the Explorer under these circumstances. But
there are a lot of other things that can precipitate it.
A child comes out of the driveway on a tricycle and you swerve to avoid the
child and then swerve to avoid an oncoming car; you will be upside down in this
car. If you do that as a result of dodging a deer on the roadway, if you take
your eye off the roadway for a moment to turn around and make sure Johnny has
his seat belt on or that Sarah has her seat belt on or that the kid's not
climbing out of the child restraint seat and your vehicle eases over onto the
shoulder and you hear the noise of the shoulder and the tire interacting and
you turn around real fast and cut the steering wheel to keep from leaving the
roadway, this vehicle will begin to yaw. And it is extremely difficult to
control under those circumstances.
And when you're doing that at 55, 65, 75 miles an hour, these vehicles --
unlike station wagons and unlike passenger cars that they're compared with and
marketed -- these vehicles will be upside down. And people don't understand
Do we know the data? Do you have hard figures on rollovers for the Explorer
per se, single vehicle rollovers? Do you know off the top of your head?
... Out of 100 single-vehicle rollover crashes involving the Explorer, seven
out of ten single-vehicle accidents are rollovers. So it's got about a 70
percent rollover rate, whereas the Bronco II, for instance, was in the 90s
[percent]. So the Explorer is definitely better than the Bronco II, but that's
due to the fact that they lengthened the wheelbase of the 4-door.
But if you look at the 2-door Explorer, the one they're still selling as is, it
is absolutely the worst from a percentage standpoint of all other compact sport
utility vehicles on the market from a rollover standpoint. ...
... Is there something about this notion of what a defect is that gets us
more focused on the tire than the vehicle?
With regard to which is easier to prove, whether you aim your gun at the tire
or whether you aim your gun at the vehicle, clearly the tire case is easier.
I've done it both ways with regard to the Bronco II. ... I can tell you it's
much easier to convince people the tire is defective than it is to convince
people the vehicle is defective. And it makes a lot of common sense. If you
think about it just a minute -- most people don't expect driving down the
roadway that your tire is going to peel apart.
But on the other hand, with regard to the vehicle, we're attacking the entire
design of somebody's vehicle -- a vehicle that is designed by not one engineer,
but a multitude of engineers. And what makes you think a [lawyer] from Little
Rock is going to be able to design a vehicle better than the people that work
at Ford Motor Company in Detroit, Michigan? Common sense tells you it's easier
to prove the tire case than it is the vehicle case. ...
Ford Motor Company has told anybody who will ask them that the Explorer is a
particularly safe vehicle, safer than passenger cars because it kills other
people in accidents rather than the occupants. And in terms of SUVs as a class,
it's among the safest SUVs on the road. Is that just wrong?
No. I think it depends on what you're comparing. Let me give you an example. If
you put Charles Manson, John Wayne Gacy and Attila the Hun in a room and ask
everybody sitting in this room right now, "Let's compare these three guys and
let's decide who's the best and who's the worst," somebody's going to be number
one and somebody's going to be number two and somebody's going to be number
The question that you have to ask yourself with regard to the sport utility
market is if you put the Explorer and the Suzuki Samurai and the Bronco II and
the Isuzu Trooper and the Toyota 4Runner -- if you put all those vehicles in
a room, somebody's going to be the worst and somebody's going to be the best
out of that group.
But what we have to ask ourselves is, can we live with the best one? Can we
really live with the best of these vehicles, given what we know they do? And I
think the answer to that is no, we can't do that. We have to have changes in
the design and the marketing of these vehicles. ...
Can you just give me basically a laundry list of what happens to a human
body inside a Ford Explorer when it rolls over at highway speeds?
... When these vehicles flip over, typically they'll land on the roof and
they'll smash down in that direction. There's one cardinal principle that
you're taught, and that is there is an occupant survival space inside of the
vehicle. That occupant survival space that surrounds the occupant -- assuming
they have their seat belt on -- is there for a purpose. It's there to keep the
interior components of the vehicles from getting into that area and interacting
with the occupants.
When these vehicles roll over, the seatbelt in these vehicles is not designed
to tie you to the seat, and so you're heading towards the roof. The roof is so
flimsy that it'll crush 10-12 inches. So in a normal mid-sized sport utility
vehicle like the Explorer, you're going to be interacting with the roof. And
what happens is, when that car slams down on the pavement at about 8-10 miles
per hour -- because that's the amount of vertical velocity that's going -- the
body is moving toward the roof; the roof is moving toward it, and it physically
just crushes the person in between the seat and the roof. And puts so much
dynamic pressure on it, that the spinal cord just snaps. ...
The other thing that can happen in a rollover crash is that if you're not
crushed, and you get flailed around with your seat belt on, you can physically
get your head outside of the window, because the seat belt's not doing what
it's supposed to be doing. It's not designed to tie you to the seat. And
sometimes what we see is, despite being belted, the head gets smushed between
the pavement and the corner of the roof as it comes down and hits the
So these are very violent injuries. They're very, very, very severe injuries.
In fact, some of the statistics show that rollover wrecks themselves account
for almost a quarter of all severe injuries that occur in automobile crashes
altogether. Rollover crashes are the less frequent type of accident mode, but
causing more severe injuries. ...
You've been suing Ford Motor Company for two decades. But had you ever had
anything like this where it became such a hot focus of interest?
Never. Never as widespread as this problem was. ... I think what separates what
happened in the Bronco II context with the Explorer in the Firestone situation,
is the fact that we evolved from the late 1980s to the late 1990s to a
situation where doctors, lawyers, accountants, congressmen and women and people
who in the 1980s weren't driving sport utility vehicles were now driving them.
If you want to get Congress' attention, tell them their vehicle's defective,
and let these events begin to happen to their family. It'll get their attention
fast, and it also gets the attention of their constituents who are calling up,
who are the ones that financed their campaigns. So I think those are the kinds
of things that generated the extra media exposure under these circumstances.
Lawyers sort of have two roles in this regard, don't they? I mean as a trial
lawyer. On the one hand, you've got a kind of a public role as an enforcer of
sort of safety in a sense. On the other hand, you have to represent a client
who's been terribly injured in some cases and desperately in need of money. Do
those roles conflict at times?
... There's always a conflict between making sure that your client is protected
and that the client is given adequate information to be able to make a fully
informed decision about what to do in a lawsuit.
On the other hand, we lawyers sometimes can get so focused on beating the other
side because of the competition. I mean, this is literally war that is being
waged between the people that do what I do for victims, and for people that
represent the auto manufacturers. It's a literally all-out war. And when the
adrenaline is pumping and the competition is going, if you're not careful, you
can forget that this case is about your client, your client's rights and your
client's day in court. ...
What do lawyers think of NHTSA, and what were you thinking yourself when you
heard they might be noodling around in this?
Oh, if we went back in time to before May 2000 and tried to get a perception of
what lawyers in general thought about the National Highway Traffic Safety
Administration opening investigations, it's really like water on the duck's
back. We just never really thought much about one way or the other, because
historically, those investigations, like dominoes, had always clicked off one
after another against the consumer and in favor of the industry. And it was not
surprising. I mean, all these directors are political appointees, who, once
they leave the position at the National Highway Traffic Safety Administration,
went to work for the manufacturers. And they were testifying against my clients
in courtrooms across the country. ...
I can list them for you, from Diane Steed, to Jerry Curry, to William Boehly.
The list is as long as my arm. These people just going out the revolving door,
regulating the industry one day, and the very next day they're off in court
testifying that the Suzuki Samurai is a safe vehicle. ...
Given the failure of NHTSA over the last 20 years, do you think lawyers,
safety advocate types and the news media are an adequate substitute for
... Would it be nicer to have regulations in place that had bite and had
meaning and had technical common sense attached to them? Sure, it would be.
Would it be better to have a government regulation that was regulating this
industry without politics involved? Sure it would be. I just don't think that's
I think that the kinds of things that we're talking about, that pressure takes
care of a lot of things that the government can't take care of. And I will take
12 ordinary citizens over 12 politicians any day of the week in making these
So it falls to you?
Yes. It falls to me, the people that do this for a living, and the Joan
Claybrooks of the world who will continue to fight for what they believe in, in
terms of trying to get regulations passed. ...
You've made a good living doing this -- is that fair to say?
Sure. I make an excellent living -- a lot better living than the guy who's
digging the ditches on the street out here.
And what do you say when the other side or critics say you're just a shark;
you're just exploiting the deep pockets of Ford Motor Company or GM or
My response is twofold. Number one, I guess the GMs and the Firestones and the
Fords of the world would have us believe that they ought to be able to choose
the lawyer who is going to represent the injured consumer. I'm not interested
in that kind of system.
And secondly, if they're critical of the money we make... Just from a practical
standpoint, I haven't made near as much money off of the defective Explorer,
for instance, as Ford has. ...
You've said that Ford disregarded the safety of the consumer. Where
specifically in the course of the story did Ford knowingly disregarded the
safety of the consumers?
With regard to the issue of what I meant by at what point Ford consciously, or
began consciously disregarding what I consider to be the safety of the
consuming public, probably goes back in 1989 when they tested the Explorer in
Arizona. It lifted wheels off of the ground.
The engineers came back and said, "Here's what we can do to fix this vehicle,"
and management at Ford decided that, "We're not going to do this. Instead we're
going to deflate the tires. We're going to take air out of the tires in order
to try and fix the problem." There is an internal e-mail that says, "I have
advised management of the risk and they have accepted the risk." That is
conscious disregard for the safety of the public.
What specifically was the remedy that Ford disregarded?
The risk that they accepted in the remedy for that, what they ignored was
making the vehicle wider and lowering the center of gravity.
Why did they ignore that?
Money. Money, and specifically Job 1. In order to understand a company like
Ford Motor Company, you have to understand that they have a point in time
called Job 1 when somebody turns the lights on in the factory and these things
start running off the assembly line. What they were doing was they had a
deadline to meet on Job 1. And when they looked at these four alternatives for
fixing this car, one of the columns was timing.
What they realized was that we can't do this and meet our deadline. And what is
the consequence of not meeting your Job 1 deadline? Literally, literally hundreds of millions of dollars in lost sales. If you think that
the chief engineer for the Explorer was going to walk into the CEO's office and
say, "Oh, and by the way, we're going to delay the Explorer six months," that
guy's head would have gone on the chopping block. There's no way that would
But Ford says "Safety is Job 1."
They actually say "Quality is Job 1." But safety they advertise routinely as
being very important to them, and that's an image they're trying to create. But
those of us who know how management at Ford makes decisions -- and Ford is not
unique in that regard -- but those of us who know that, know that that's not
But let me also point out that there are many, many engineers that I've
questioned over the years. I've been in rooms with over the years who are
extremely fine people at Ford Motor Company who I would trust in a New York
minute. But it's very difficult to make a safe car with your hands tied behind
your back. And when management is tying their hands behind their back, they
don't have a choice.
Put this into context. This is not just any old car. What was the SUV to
Ford in the late 1980s and early 1990s, mid-1990s? How important therefore is
making Job 1? This isn't just any old car.
This is the most profitable vehicle they had. I mean Ford is making -- the
specific number I think is 39 percent or 40 percent profit on every Explorer
they sold. Thirty-nine or 40 percent profit compared to, say, 10 percent or 11
percent profit on a station wagon.
It doesn't take a rocket scientist to figure out which car you want to sell. So
it was very important not only to get it out on the market in time. It was
important to get it out and get it out there competing for truck market share,
because the more market share you have at the high profit margins, the more
cash you're making.
I don't remember the numbers now. But there have been articles written in the
print media about how much profit this particular Explorer generated for Ford
Motor Company from 1990 to the present day. And it's just a phenomenal amount
of money. ...
What do you think it is about SUVs? You said they've grown in popularity
from the late 1980s to the late 1990s. What is it about SUVs that you think
makes them so popular? Why do people like them so much?
I can answer that in, really based upon my experience with what I've seen from
the company's internal documents. These companies do focus groups virtually all
the time, trying to feel what the market is feeling, what people think. And
what I've learned from their focus group work, and from our focus group work in
individual lawsuits, is that these vehicles have become very popular for
females in this country, because females sit up higher in these vehicles. They
get this feeling of safety, sitting up higher because they have a better field
of vision. They feel more durable, stronger up high in these vehicles.
The other reason that the females like these is because it's easy ingress and
egress. You know, it's easy to put Johnny in the back seat. It's easy to flip
up the lift gate and put the groceries in the back seat. There's no lifting,
and bending, and it's just convenient for females.
I think there's a whole different set of reasons for the younger people. The
teenagers like them because they're sporty; they're popular. They're fun to
drive in. It has that kind of off-road, on-road capability perception of
safety. And I think that's really why people buy these vehicles. ...
To what degree do we have a right to demand of a company like Ford that they
do everything in their power to make a vehicle safe? Where do you draw the
line? Ford says there is a certain amount of risk inherent in driving. What
does the consumer have a right to expect from a product they bought?
I think the consumer has the right to expect two things. I think the consumer
has a right to make an informed choice, and to be told the truth. I think that
is first and foremost about a product.
Second of all, I think from a safety standpoint, the consumer has the right to
have a vehicle that is equipped with state of the art equipment that is
controlled by the market. Let's use Ford as an example.
Is it fair, is it reasonable, is it ethical for Ford to sell a car in Germany
that has a pre-tensioning device in the seat belt system that protects that
gives people added protection in Germany, but refuses to do it over here
because General Motors and Chrysler has not done it? I think that's
I think it's unreasonable for me or for a consumer to expect Ford Motor Company
to prevent every death in every type of crash under every set of circumstances.
Nobody's asking for that. That is an impossible request.
But what we do expect I think as consumers, is that you, Ford Motor Company,
are doing everything possible. You're not just telling us; you are physically
doing what you can, given the state of the market and the state of the art in
technology, to make our vehicles safe in all of the foreseeable types of
crashes, whether it's a frontal crash, a rear-end crash, a side-impact crash,
or rollover crash. And to this day, there's not a company in this country --
General Motors, Chrysler or Ford -- that are using state of the art technology
to provide protection to consumers in rollover crashes. Not one of them. ...
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