California Law Business – Mark Robinson and the Ford Pinto

Remember the Ford Pinto‚ the egg-shaped economy ride that sometimes exploded when struck from behind? Mark Robinson Does.

He also remembers the look on the faces of the jurors who awarded $127 million to his client 13-year-old burn victim Richard Grimshaw‚ in 1978‚ based on a design flaw that led to the deaths of 27 people from fuel-tank fires in Pintos.

The jurors were outraged to learn that the Ford Motor Co. became aware of the risks of passenger deaths in 1971 yet waited until 1976 to move the Pinto’s gas tank from behind the rear axle to a safer spot above the center of the axle.

"Ford made a decision to place-money ahead of human lives‚" Robinson says‚ waving an Aug. 26‚ 1971‚ fuel system integrity memorandum. That damning piece of evidence advised Ford executives not to recall or re-design the Pinto "until required by law."

Thirty years later‚ Robinson charges‚ little has changed.

The automobile industry continues to place profits ahead of people‚ he says. In recent years‚ they’ve added a new weapon to their arsenal‚ according to the plaintiffs’ bar: protective orders granted by courts and genuflecting judges that keep corporate transgressions out of the public eye.

Recently‚ aided by lawmakers‚ consumer groups and the media‚ plaintiffs’ lawyers have begun firing back‚ asking courts to let the sunshine in to cleanse dirty little secrets like those behind the Ford Pinto.

The Colonel’s Secret Recipe and the formula for Coca Cola—the trade secrets on which corporate defendants rely to dose court files and discovery documents—are a far cry from the prescription for defective tires‚ Robinson says.

Once again‚ the automobile and tire manufacturers have placed public scrutiny directly on the courts.

First there was the hail of litigation from rollover accidents involving Ford Explorers equipped with "de-treaded" tires and the recall of 6.5 million defective Bridgestone/Firestone tires in August. Then in October‚ it was revealed that Goodyear Tire & Rubber Co. had also manufactured tires involved in fatal accidents—and questions were raised about what the company knew and when they knew it…

…Robinson has been confronting these issues for decades. The former president of Consumer Attorneys of California was eager to discuss tires‚ trucks and SUVs—and the protective orders he claims corporations rely upon to make sure vital information never sees the light of day.

He and partner Kevin Calcagnie of Newport Beach’s Robinson Calcagnie, Inc. agreed to meet at their firm’s warehouse‚ where they store a small fleet of crushed vehicles they’ve purchased from insurance carriers to demonstrate the need for stricter safety standards.

Calcagnie downloaded statistics showing the probability of an SUV rollover given its center of gravity‚ tire height‚ track width and wheel base as Robinson spoke of the auto industry’s current woes and its dark past. Firestone is not totally to blame for deaths from tread separations on Ford Explorers‚ Robinson said. "The real problem is vehicle stability‚" he says of the popular SUV design that lets passengers ride tall in the saddle.

Looking up from his computer Calcagnie says‚ "Instead of lowering the engine mounting on the Explorer‚ Ford raised it."

"Ford made a conscious decision not to lower the center of gravity in 1995‚" Robinson adds. "They developed a safer system but decided for cost reasons not to implement it. I’ve seen the memo but its under a protective order." (Ford spokeswoman Susan Krusel replies that Ford turns over all documents in liability cases except financial data‚ computer programming formulas and product planning information: "We haven’t had a plaintiffs’ lawyer charge us with inappropriately seeking trade secret protection on the Explorer in 10 years.")

Sitting near a reconstructed Pinto amidst a carnage of sport utility metal‚ Robinson said "This whole secrecy debate goes back to the Nixon years."

The critical moment came on April 27‚ 1971‚ Robinson says‚ during a secret meeting held in the Oval Office between President Nixon‚ auto maker president Henry Ford II and then-chairman of Chrysler Corp. Lee lacocca. The auto makers were concerned because times were beginning to look tough in Motor City. Japanese companies Honda‚ Toyota and Datsun were introducing curiously small‚ fuel-efficient cars that challenged the market dominance of the Big Three‚ Ford‚ General Motors Corp. and Chrysler.

And the federal government wasn’t helping. The National Highway Traffic Safety Administration was proposing 70 safety and auto emissions standards that threatened to increase costs and erode the dominance of the Big Three.

Evidence of the closed-door meeting is eerily contained in Nixon’s secret White House tapes and in 1991 depositions taken of domestic affairs assistant and former White House Counsel John Ehrlichman‚ who would later spend time in prison for his Watergate role and die in 1999.

During the meeting‚ Ford told Nixon that the auto industry would have to spend one-sixth of the gross domestic product to comply with National Highway Traffic Safety Administration’s requirements by 1975‚ according to the Ehrlichman deposition. And‚ Ford warned the president‚ the price of the popular Pinto would go up 50 percent in three years if the National Highway Traffic Safety Administration standards were implemented.

"Cool it‚ or you’ll break us up‚" Iacocca complained to the president. Of particular concern were the costs of complying with bumper strength and air bag requirements.

Ford passed away in 1987 and Iacocca‚ who invented the E-bike‚ an electric transportation system‚ now heads EV Global Motors Inc. in Los Angeles and did not return calls for comment.

The entreaties of the auto magnates had an effect on Nixon‚ according to Ehrlichman’s deposition.

Later in the day‚ he met with the president. "I’m strongly against them all‚ it’s not good government‚" Ehrlichman testified of Nixon’s reaction to the National Highway Traffic Safety Administration proposals. "Tell [Department of Transportation Secretary John] Volpe to delay all of this."

Then‚ on‚ on May 13‚ Nixon met with the Big Third‚ General Motors chairman James Roche. That same day Nixon reiterated his order that the National Highway Traffic Safety Administration table the safety regulations. But there was a price. He instructed Ehrlichman to tell assistant Charles Colson‚ a lawyer and self-described "hatchet-man" for Nixon‚ to "exploit the Ford meeting‚" meaning‚ in Ehrlichman’s words‚ "Hit Ford up for a political contribution."

Volpe‚ who had shown crash test films to Ehrlichman and several other of the president’s men‚ strongly objected to yielding to the auto industry‚ according to Ehrlichman’ However‚ after receiving his marching orders from Colson‚ Volpe instructed the National Highway Traffic Safety Administration to withdraw the proposed regulations and advised the White House staff that "it was a bad decision."

Volpe died in 1994. Colson‚ who would not comment‚ later served seven months of a three-year sentence for his role in Watergate and now lives in Northern Virginia‚ where he is an evangelical lay minister‚ author and founder of the Prison Fellowship.

Among the shunted the National Highway Traffic Safety Administration regulations was one that would have required automobiles to sustain rear impacts of up to 30 miles per hour by 1974‚ not just 20. After the verdict in the 1978 Pinto case#151;which left the victim burned over 90 percent of his body after his car stalled on the freeway and was struck from behind—National Highway Traffic Safety Administration officials quickly arranged a meeting with Ford and a recall of the vehicle.

"That meeting between Ford and Iacocca and Nixon set the stage for 30 years of inadequate safety standards‚" said Robinson‚ after looking out the window of his Orange County warehouse and squinting into the sun.

Consumer groups have long been dispirited with what they saw as the National Highway Traffic Safety Administration’s history of regulatory malaise‚ pointing to the conservative nature of governmental agencies in general as well as the number of former National Highway Traffic Safety Administration leaders who went to work for the industry as executives‚ attorneys‚ consultants or lobbyists.

"Starting with [President] Reagan the top NHTSA appointees went right into the industry‚" says Joan Claybrook‚ head of The National Highway Traffic Safety Administration from 1977 to 1981 and current president of Ralph Nader’s consumer organization Public Citizen.

After the Pinto recall‚ the National Highway Traffic Safety Administration did not implement any significant-cant auto and tire-safety standards until President Clinton signed into law Nov. 1 the Transportation Recall Enhancement Accountability Documents Act‚ Claybrook says. The act directs the National Highway Traffic Safety Administration to update 30-year old tire safety standards‚ develop a dynamic rollover test‚ improve testing of vehicle child safety restraints and require manufacturers to certify that their products comply with federal safety standards.

The act also requires The National Highway Traffic Safety Administration to issue rules.requiring manufacturers to submit early warnings about defects and imposes criminal penalties on manufacturers that give false statements to the government. It increases the maximum civil fine for regulatory violations from $925‚000 to $15 million and adds a $5‚000 maximum daily penalty for withholding documents‚ up to $15 million.

Still‚ consumer advocates complain‚ "There is no criminal penalty for missing a recall that results in death and the civil penalties have no teeth‚" Claybrook says. "Firestone shows us that NHTSA must be more proactive in obtaining early warning information and following up on that information."

However‚ National Highway Traffic Safety Administration chief of media relations Tim Hurd says‚ "We had the biggest year in history for recalls last year and this year is expected to be even bigger‚" noting that the National Highway Traffic Safety Administration had investigations ending in 86 of 371 recalls in 1999. Since the agency was formed in 1966‚ he adds‚ it has "influenced" 1‚458 recalls‚ meaning a National Highway Traffic Safety Administration investigation.was underway when an automobile or part was. recalled. Those recalls have led to 165 million cars being taken off the road‚ he says.

Compare that to 5‚762 voluntary manufacturer recalls with no investigation pending which took only 9 million cars off the road‚" Hurd says.

Despite‚ an additional $9 million appropriation from Congress in the recently signed act‚ bringing the National Highway Traffic Safety Administration’s budget to $191 million‚ it remains under-funded and under-staffed‚ according to Claybrook. The National Highway Traffic Safety Administration’s office of defects investigation has only 47 employees‚ for instance—the same number it had in 1980.

"They wait for information to fall into their lap‚ and even then they don’t know what to do with it‚" she says.

Yet the National Highway Traffic Safety Administration has a leg up on plaintiffs’ lawyers when it comes to obtaining elusive information. Manufacturers‚ for instance‚ are prohibited from withholding documents from the agency.

"The agency has the power to obtain documents whether there is a gag order or not‚" Claybrook says. "So‚ they should be following consumer complaints and. lawsuits and checking with auto-repair associations and parts manufacturers."

"There were signs the agency was changing when Clinton appointed Dr. Sue Bailey as administrator Aug. 3 after her predecessor left to work in the auto industry. Both Claybrook and Hurd agreed that Bailey has been committed to raising the agency’s profile. To what effect is unclear‚ "because the White House recently asked all appointees to tender resignations by Jan. 20‚ and future appointments are uncertain.

Amid this hazy regulatory scenario‚ the increase in tire-tread separations and SUV rollovers coupled with the lack of roof-crush safety standards is of particular concern to Calcagnie‚ who notes that SUVs roll over in 30 percent of accidents‚ seven times more often than other passenger vehicles.

"Toyota Forerunner‚ Jeep Wrangler and Jeep CJ-7 are all notoriously unstable" he says…

… Robinson’s seen too much in more than 30 years as a consumer lawyer to trust the government to regulate the auto industry.

Recently he settled a case on behalf of a client who was rendered quadriplegic when the seat back of her 1994 Saturn collapsed after a 25-mile-per-hour rear impact‚ he says with rancor.

He and Calcagnie had discovered General Motors documents that indicated that the automaker knew of 900 deaths per year by rear-end collision‚ and that engineers had known as early as 1992 that they could reduce half of those seat-back deaths for less than $5 per car.

Calcagnie shakes his head ruefully as he downloads another computer file. He runs a simulated crash test he and Robinson commissioned to evaluate seat-back safety: Crash dummies with red paint on the tops of their heads snap back as their seats collapse upon sustaining a rear impact of 30 miles per hour. Suddenly reclined‚ their heads leave a red spot on the back seat of the car.

Then Calcagnie runs a General Motors crash test for gas-tank stability and the same thing happens‚ except General Motors calls this "absorbing accident energy away from front occupants."

"They knew this stuff in the 1960s‚" Robinson says‚ practically furious by now.

Curious about who knew what when‚ California Law Business obtained General Motors documents filed in San Bernardino Superior Court in Rancho Cucamonga. Aguilar v. Sahagun‚ RCV21861.

The file contained numerous documents with diagonal stripes across the text that were marked "Subject to Protective Order." A number of them related to General Motors’ internal reaction to a Feb. 16‚ 1992‚ CBS "Eye on America" investigative report on seat-back safety.

In a memorandum marked "Privileged & Confidential‚" General Motors defines the public relations and liability problem following the CBS report as "lack of due care analysis and documentation to support the design of yielding seats which can result in occupant ejection and the risk of severe head and/or neck injury in rear collisions."

Several pages later‚ the memo concludes: "Most importantly‚ we are unable to effectively demonstrate that we exercised reasonable care as a caring corporation to design seats which will reduce the risk of injury to our customers in rear collisions."

General Motors resolved Aguilar in a confidential settlement‚ protected by court order.

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