By MICHAEL OREY
Staff Reporter of THE WALL STREET JOURNAL
In the summer of 1999, two lawyers seeking to prove that a tire made
by Cooper Tire & Rubber Co. was defective, and had caused a fatal car
crash, concluded that the company would never willingly surrender
information they wanted. So the pair descended on Tupelo, Miss., home
to Cooper's biggest plant, and began chatting up former employees.
Gayla Kirby, an ex-tire builder, told the lawyers they could drop by her
house, but she worried that her husband, also a former Cooper factory
worker, wouldn't approve. Jack Kirby did greet the attorneys frostily.
But then, suddenly, he said, "You want to know about tires?"
Lawyers Jerry Kelly and Paul Byrd received a tutorial that day on
"awling," an obscure practice that resulted in some tires leaving the
Cooper plant with small holes in their treads. The revelation opened a
potentially powerful new line of attack for the suit the two lawyers had
filed in 1998 and has prompted others suing Cooper to follow their lead.
This month, lawyers began launching suits against Cooper in at least 20
states, seeking class-action status on behalf of millions of customers
who allegedly bought awled tires.
Cooper says it discontinued awling in 1995. The
company denies the process ever caused safety
problems and says it has strong defenses in the
case brought by Messrs. Byrd and Kelly.
In the normal course of events, that suit, known as
the Hervey case, probably would have gone
unnoticed. Defective-tire litigation, which has had
mixed results, rarely received media attention.
Cooper, based in Findlay, Ohio, sells only
replacement tires and isn't a high-profile company.
But Cooper now finds itself in the center of a legal
maelstrom. Bridgestone/Firestone Inc.'s recall in
August of 6.5 million tires trained a spotlight on every big player in the
$80 billion tire industry. The recall also has emboldened plaintiffs'
lawyers to coordinate a broad legal assault against tire makers. While
the magnitude of that attack isn't yet clear, Cooper's general counsel,
Richard Teeple, compares it to those unleashed on the tobacco and
health-care industries in the 1990s.
Already, tire makers are faltering in their effort to keep their records
secret. On Sept. 27, a federal judge in Brunswick, Ga., ordered the
unsealing of documents in a tread-separation suit Firestone had settled
confidentially in 1999. Firestone has released some documents,
including internal data on tires customers had returned to dealers, but
the company has appealed the broad disclosure order. The same week,
a Florida state-court judge presiding over a separate suit against the
Bridgestone Corp. unit said the manufacturer would no longer be
allowed to designate documents as secret unless it obtained approval
from the court.
In the Hervey case, the lawyers' aggressive pursuit of ex-Cooper
employees also let the attorneys assemble an unusually detailed picture
of the nitty-gritty of tire production. Now set for trial in May, the case
provides a road map for how tire makers defend themselves in court.
On May 15, 1998, Scharlotte Hervey and her family were headed from
Little Rock to Phillips County, Ark., on the Mississippi border, to attend
a relative's college graduation. The right rear tire on Ms. Hervey's
maroon Volvo had run about 20,000 miles -- only half of its expected
But on a straight stretch of road about halfway
between Little Rock and Memphis, most of the
tread and upper steel belt on this tire suddenly
peeled off. Ms. Hervey lost control, spinning across
the grass median into oncoming traffic. A Dodge
Stratus sedan plowed into the Volvo's passenger
side at high speed, according to the police report.
The driver of the Dodge, Lane Whitaker, 23 years
old, died at the scene. Ms. Hervey, 37, her husband
and their 15-year-old son also were killed. Two
other sons were left paraplegics.
In June 1998, Mr. Whitaker's father filed a claim
against Cooper, with Mr. Kelly as his lawyer. Ms. Hervey's mother turned
to Mr. Byrd to sue Cooper on behalf of her daughter's estate. The suits
are now consolidated in U.S. District Court in Helena, Ark.
Cooper says that the cause of the accident wasn't a defective tire but
Ms. Hervey's negligence. Tire makers typically defend against injury suits
by saying tread detachment stems from customers' failure to maintain
tires properly. The companies accuse consumers of driving with
underinflated tires or failing to repair tires damaged by road hazards.
Cooper seemed to have potent evidence of the latter: a puncture in the
Hervey tire. The company further argued that Ms. Hervey, a
junior-high-school secretary, should have been able to control her car
after the tire failed -- an argument that plays well to some male jurors,
plaintiffs' lawyers say.
From the start, Cooper battled Messrs. Byrd and Kelly about turning
over the most basic information. The company initially refused even to
concede that one of its tires was involved in Ms. Hervey's accident.
Cooper "has just now been granted possession of the subject tire
pursuant to a court order and has not yet inspected the subject tire,
and thus has been unable to identify the accident tire as a Cooper tire,"
the company said in a Feb. 16, 1999, response to a fact-finding request
made by the Hervey lawyers.
But Cooper had reason to know within days of the accident that it had
made the tire. The company's legal department had sent an investigator
to take photographs of Ms. Hervey's car, some showing the right rear
tire labeled "Cooper Trendsetter II." Mr. Teeple, Cooper's general
counsel, says the company's hesitancy to immediately acknowledge the
tire as its own reflected other cases in which plaintiffs' attorneys had
attempted to rely on false evidence.
Other tire makers have proved even less cooperative. In the past five
years, at least six courts around the country have taken the unusual
step of sanctioning Michelin North America Inc. for its conduct during
pretrial fact finding. In September 1997, for example, G.R. Smith, a
federal magistrate judge in Savannah, Ga., fined Michelin $25,000. The
company, the judge wrote, "offered nothing but verbiage and a stone
wall in response to plaintiffs' effort to obtain information essential to the
prosecution of their case."
Michael Fanning, a spokesman for Michelin, a unit of France's Michelin
Group, acknowledges that the company has been punished "a handful
of times over many years." Michelin, he says, stands by "the positions
taken to protect its trade-secret documents."
The fight between Cooper and the Hervey lawyers grew particularly
heated over the company's "adjustment data." This is the vast trove of
statistics that all tire makers maintain on tires under warranty that are
returned by customers. When a tire is "adjusted," a dealer gives a
customer full or partial credit toward the purchase of a replacement and
records the problem with the tire, using codes provided by the
manufacturer. Lawyers suing the industry want this information because
they say it lets them plumb for patterns of defects.
But tire makers typically resist turning over adjustment data. In papers
filed in the Hervey case, Cooper argued that its records are irrelevant in
a product-liability suit because tire returns don't necessarily indicate
defects. In a separate injury case against Cooper pending in the Georgia
Supreme Court, the Rubber Manufacturers Association, an industry
group, argued in a "friend of the court" brief in July that dealers often
accept returns to please customers, not because of flawed merchandise.
At other times, however, tire executives have said they rely on
adjustment data to flag quality problems. Robert Martin, who stepped
down as Firestone's head of quality assurance in April, addressed the
issue in a deposition in February in a tread-separation suit against that
company in state court in Nueces County, Texas. What would happen,
Mr. Martin was asked, if Firestone saw a large number of adjustment
claims on tires made in a single plant. "We would monitor those and
watch them, and we do," he responded. The suit was settled
confidentially in September.
The Firestone debacle demonstrates that customer data can be
revealing. Ford Motor Co. says that only when it persuaded Firestone to
turn over another category of records, known as claims data, did the
auto maker discern patterns of tread separation in certain Firestone
tires mounted on Ford vehicles. Claims data track payments made by
manufacturers to customers for minor injuries and damage caused by
tire failure. A Firestone spokesman acknowledges that Ford's statistical
analysis helped prompt Firestone's Aug. 9 recall.
In the Hervey case, Cooper eventually responded to a court order by
handing over adjustment data on about one million tires similar to Ms.
Hervey's. Messrs. Byrd and Kelly say this isn't a large enough sample to
reveal the patterns they are seeking. Cooper, the No. 8-ranked tire
maker, with $1.5 billion in global tire sales, makes roughly 40 million
tires a year.
"We provide what we feel the other side is entitled to," says Mr. Teeple.
"If the other side feels they are entitled to more, then they can seek the
recourse of the court."
But by midsummer of last year, Mr. Byrd had wearied of skirmishing in
court. He and Mr. Kelly, who work in the Little Rock area, decided to
make the seven-hour round-trip drive to Tupelo. Since then, the pair,
who stand to gain about one-third of any recovery but are paying their
expenses, have made the car trip about 20 times.
Store Clerks and Hotel Maids
Cooper's vast, low-slung factory sits in the middle of the northeast
Mississippi town, best known as the birthplace of Elvis Presley. Combing
through court records and bantering with convenience-store clerks and
hotel maids, Messrs. Byrd and Kelly gathered names of former
employees of Cooper's plant. Unlike current workers, who generally
need an employer's permission to talk to an opposing lawyer,
ex-employees are free to provide information without a company
counsel looking over their shoulder.
Jack Kirby, who left Cooper voluntarily in 1996,
after working there for 11 years, gave the plaintiffs'
duo their first potentially big break.
Mr. Kirby explained that at the end of the
production process, tires sometimes have air
blisters trapped between their innermost rubber
layer and the layer of fabric just above it. To release
the air in these blisters, he said, he and other
Cooper workers would insert the point of an awl
through the tread of the tire and into the blister. It
was essential, he said, that the awl, a fine-pointed
device about the length of a screwdriver, not poke
all the way through the tire. Otherwise, when the
tire was inflated, the air held in its cavity would leak out.
Martin Mahan, who worked for Cooper from 1971 to 1995, said in a
deposition in March that he had worried that some fellow employees did
awling incompetently. "I told my boss that this was going to bite us in
the a" because awled tires later would leak air, he said. Mr. Mahan said
he left the company for personal reasons unrelated to his job.
Cooper spokeswoman Pat Brown says that only "highly trained
technicians" were authorized to awl tires. She says the procedure was
performed on only about 1% to 2% of the tires made in the Tupelo
plant. Most of the small holes were made on what is known as the
shoulder of the tire, which is on its side, she says, but even awling
through the tread shouldn't cause problems. Still, to be extra careful,
Cooper discontinued the practice in 1995.
Cooper maintains that although Ms. Hervey's tire was made in 1992, the
company's postaccident inspection of the tire revealed that it hadn't
In depositions earlier this year, former Cooper workers described
additional alleged problems at the Tupelo plant. William Eaton, who left
the company voluntarily in 1998, after 13 years there, said that
unfinished tires, sticky to the touch, were sometimes placed on the
factory floor. Some of these tires picked up dust and debris, including
soda cans and work gloves, which could become embedded in tires
during the heating and molding process. Mr. Mahan said he had seen
such tires shipped out of the plant -- an allegation the company rejects
as "absolutely false."
Cooper's lawyers got Messrs. Mahan and Eaton to acknowledge that
they had put Cooper tires on their own cars. The company also has
branded Mr. Mahan a "disgruntled former employee." He responds in an
interview that he doesn't bear Cooper any ill will and considers it a
Cooper officials vigorously defend the company's manufacturing and
quality-control procedures and dispute the allegations made by its
former employees. Although unfinished tires were placed on the floor,
"the floor would have been swept and cleaned," says Mr. Teeple, so the
tires wouldn't "pick up contamination that would cause tire failure."
Whatever former employees claim to have seen in Cooper's plant, says
Mr. Teeple, "the tire itself is the best witness in the [Hervey] lawsuit." To
tell the tire's story, Cooper shipped it off to James D. Gardner in Akron,
Mr. Gardner may seem a surprising choice. Until last month, when he
retired, the 56-year-old engineer headed product analysis for Firestone.
A key part of his job was testifying for that company in product-liability
cases. But, in an unusual arrangement, Mr. Gardner, who declined to be
interviewed, also has moonlighted as an expert for Firestone's
Tread separation most commonly occurs, Mr. Gardner has testified,
after a tire strikes a road hazard, like a rock, or is punctured by a sharp
object. The damaged tire can then gradually lose air. If allowed to run
underinflated, its steel belts can separate.
Plaintiffs' attorneys complain that Mr. Gardner typically can't say what
exactly a tire has hit, or when. Still, the attorneys concede he is a
knowledgeable, well-spoken witness.
Mr. Gardner said in a deposition in July that the cause of the Hervey
tire's tread separation was a puncture through the tread into the tire
cavity. The tread wasn't recovered from the accident scene, but he said
he believed that the puncturing object remained in the tire until shortly
before the crash. The object served as a plug, preventing the tire from
going flat, he said. But the puncture nonetheless allowed air inside the
tire to seep between its layers, leading to the tread separating.
The puncture wasn't caused by an awl, the industry expert maintained.
If the tire had left the factory with an awl hole all the way through it, he
said, "the tire would have been flat all the time."
Alan Milner, a product-failure analyst retained by the Hervey lawyers,
disagreed. He took a variety of nails and screws and pushed them
through the tread of a sample tire. X-ray analysis of the damage done
by these objects, he said in a deposition in May, was different from the
damage found on the Hervey tire. Mr. Milner's conclusion: The puncture
was probably caused by an awl. The hole was so small that the tire
could remain inflated, but it was big enough for moisture to enter
through the tread, potentially leading to the deadly failure, he said.
Another issue shaping up as a classic battle of experts is whether Ms.
Hervey should have maintained control of her car. If the case goes to
trial, the plaintiffs' experts will assert that the difficulty of steering as
the tire tread was separating inevitably threw Ms. Hervey's car into a
But one of Cooper's experts, Christopher Shapley, said in his
deposition in June that "99.9-something percent of people confronted
with various forms of tire disablement simply pull over and change the
tire." Ms. Hervey apparently panicked, the engineer asserted. "The
requirement," he said, is "to stay calm."
Write to Michael Orey at email@example.com