AP IMPACT: In Toyota lawsuits, tests and documents vanish in tactic under scrutiny

By Danny Robbins, AP
Sunday, April 11, 2010

AP IMPACT: In Toyota cases, evasion becomes tactic

MIAMI — Toyota has routinely engaged in questionable, evasive and deceptive legal tactics when sued, frequently claiming it does not have information it is required to turn over and sometimes even ignoring court orders to produce key documents, an Associated Press investigation shows.

In a review of lawsuits filed around the country involving a wide range of complaints — not just the sudden acceleration problems that have led to millions of Toyotas being recalled — the automaker has hidden the existence of tests that would be harmful to its legal position and claimed key material was difficult to get at its headquarters in Japan. It has withheld potentially damaging documents and refused to release data stored electronically in its vehicles.

For example, 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.”

In another case involving a Texas woman killed when her Toyota Land Cruiser lurched backward and pinned her against a garage wall, the Japanese automaker told lawyers for the woman’s family it was unaware of any similar cases. Yet less than a year earlier, Toyota had settled a nearly identical lawsuit in the same state involving a Baptist minister who was severely injured after he said his Land Cruiser abruptly rolled backward over him. Under court discovery rules, Toyota had an obligation to inform the woman’s attorneys about the case when formally asked.

“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.

The AP reviewed numerous cases around the country in which Toyota’s actions were evasive, and sometimes even deceptive, in providing answers to questions posed by plaintiffs. Court rules generally allow a person or company who is sued to object to turning over requested information; it’s permitted and even expected that defense attorneys play hardball, but it’s a violation to claim evidence does not exist when it does.

Similar claims have been lodged by Dimitrios Biller, a former Toyota attorney who sued the company in August, contending it withheld evidence in considerably older rollover cases.

Rep. Edolphus Towns, D-N.Y., chairman of the House Oversight and Government Reform Committee, which has subpoenaed some of Biller’s still-undisclosed records, says they show possible violations of discovery orders.

Toyota disputes Towns’ statement and the accusations of deception. In a statement to the AP, Toyota said it plays by the rules when it comes to defending itself.

“Toyota takes its legal obligations seriously and strives to maintain the highest professional and ethical standards, in connection with litigation and otherwise,” the company said. “We are confident we have acted appropriately with respect to product liability litigation.”

How Toyota handled past lawsuits could indicate how it will deal with more than 130 potential class-action lawsuits filed by owners who claim the recent recalls have triggered a sharp loss in their vehicles’ value. Separately, Toyota faces nearly 100 federal wrongful death and injury lawsuits by victims who blame their crashes on sudden acceleration.

A panel of federal judges decided last week to consolidate the sudden acceleration-related cases before U.S. District Judge James V. Selna in Orange County, Calif., near Los Angeles. Selna will handle key pretrial matters in all the cases, including decisions on what material and documents Toyota will be required to produce as evidence.

The dozens of lawsuits reviewed by the AP, spanning the past decade, dealt with allegations of vehicle rollovers, faulty air bag deployments, defective transmissions, bad brakes and crashes blamed on sudden acceleration — the issue at the heart of the company’s current recall of some 8 million vehicles worldwide. The National Highway Traffic Safety Administration has linked 52 deaths to accelerator-related crashes.

Additional related lawsuits examined in the AP review found:

—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.”

—Toyota claimed in court documents that a 2000 Camry had “no component” to record its speed at the time of a crash. A Texas woman suing the automaker asserted she was injured when the air bag failed to deploy. The case went to trial last September and ended with a jury ruling in Toyota’s favor.

The attorney, Stephen Van Gaasbeck of San Antonio, later found documents showing the Camry did record such information and that Toyota had the ability to download it from vehicles as early as 1997, circumstances that now cause him to question the company’s honesty.

“If we had the data, and the data said the speed was above what their air bag would have deployed at, then yes, it would have been a different case,” said Van Gaasbeck. He added that an appeal based on the new information is unlikely because Texas appellate courts would likely favor Toyota based on previous rulings.

—The attorney for 76-year-old retiree Robert Elmes — hospitalized for five weeks after a 2006 crash in Pennsylvania in which he says his 2002 Camry surged forward unexpectedly — has sought repeatedly and unsuccessfully in federal court to obtain Toyota documents concerning the car’s electronic throttle control.

Questions surrounding that device are at the center of the government’s investigation into sudden acceleration. Toyota has denied the electronic throttle control is to blame for the crashes. Elmes, of Canonsburg, Pa., said it’s clear Toyota is “dragging it out as long as possible” to avoid making any disclosures in court involving the electronic throttle control. Elmes filed his lawsuit in 2008, well before Toyota’s recalls began.

“Before the accident, I thought that was the nicest car I ever owned. Now I think Toyota’s interest is only in the bottom line, period, and they don’t care about safety,” Elmes said in a telephone interview. “I wouldn’t take another Toyota if they gave it to me.”

Toyota has filed court papers asking that most of these new lawsuits accusing the company of fraud years ago be included in the broader consolidation of sudden acceleration cases.

Attorneys who regularly defend corporate clients say it’s common for plaintiffs’ lawyers to complain they are not receiving the information they need and that Toyota’s tactics do not necessarily indicate nefarious intent.

“It’s always a battle in these big cases between plaintiffs and corporations as to what documents they have and whether or not they produce everything they should have,” said Matthew Cairns, president-elect of the 22,500-member DRI-Voice of the Defense Bar group of civil defense attorneys. “Plaintiffs always try to get more, hoping to find something. It’s for the court to ultimately resolve who is right.”

Still, some attorneys who have fought Toyota in the past say the company’s evasiveness exceeds the normal legal back-and-forth and that Toyota may have benefited from being based in another country.

“They’ve used the Pacific Ocean as a great defense to producing documents,” 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.”

Danny Robbins reported from Dallas.

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