Tire Maker Finds Itself In a Legal Maelstrom
                    November 15, 2000

                    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
                    useful life.

                                      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
                    been awled.

                    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
                    "good company."

                    Company Response

                    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
                    dangerous spin.

                    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 michael.orey@wsj.com