Cooper Tire & Rubber Co. settled an Arkansas wrongful death and injury lawsuit May 23, the day after a federal judge said he would allow potentially damaging testimony against the tire maker in the trial.
Cooper said that the judge's decision on testimony had no bearing on its decision to settle. The judge exonerated the tire maker specifically from plaintiffs' attorneys' main charge that company management had ordered the burning of documents called as evidence, and he also rejected the plaintiffs' motion to bar Cooper's expert witness from testifying, according to court documents.
However, the story behind the settlement-details of which are sealed-is a bone of contention between Cooper and Ocala, Fla., plaintiffs' attorney Bruce Kaster, who worked on the case. Cooper accused Mr. Kaster of sensationalism; he, in turn, accused Cooper of splitting hairs-and both sides said they would just as soon have gone to trial.
Nellie Brownlee filed suit against Cooper in Little Rock federal district court on behalf of her grandsons, Demario and Rashad Hervey, and the estate of her daughter, Scharlotte Hervey. The Hervey family was driving from Little Rock to Memphis, Tenn., on May 15, 1998, when a Cooper Trendsetter II tire on their 1984 Volvo allegedly lost its tread.
The vehicle spun out of control and crossed the median, where it collided with a car driven by Lane Whitaker. Scharlotte Hervey, her husband Edward, her son Jamar and Mr. Whitaker were killed. Demario and Rashad Hervey, then 13 and 7, were crippled for life.
In their suit, Ms. Brownlee and the Herveys claimed the Cooper tire was defective, whereas Cooper argued the tire was 6 years old at the time of the accident, with 25,000 miles on it and a severe puncture through the inner liner.
The trial-which was to have begun May 28 in the Helena, Ark., federal district court-was complicated by the accusation of the Herveys' attorneys that Cooper deliberately burned documents they had requested during the discovery process.
On May 17, Judge George Howard Jr. ordered the testimony of former Cooper employee Cathy Barnett stricken from the record. There was ``simply no evidence'' that any of Ms. Barnett's supervisors ordered her and another employee to burn boxes of documents relating to production at the company's Tupelo, Miss., plant, the judge ruled. The tire in the Hervey case was manufactured at Tupelo.
Five days later Judge Howard ruled that Cooper ``should have known'' about the document burning. He said that plaintiffs' attorneys could present evidence at trial that Cooper employees had burned documents, and also ordered Cooper to pay the Herveys' court costs for hearings on this issue. The judge also, however, rejected the plaintiffs' attorneys' request to preclude the testimony of Cooper's expert witness on the possible cause of failure of the tire.
Thomas Dattilo, Cooper chairman, president and CEO, issued a press release May 23 accusing plaintiffs' attorneys of ``leaking bad information to the media about Cooper Tire.'' In court, Mr. Dattilo said Cooper would ``explain that any documents that were discarded under our document retention policy had nothing to do with this unfortunate and tragic accident.''
The same day, however, a settlement offer was made and accepted. Both Cooper and Mr. Kaster said the offer came after Judge Howard ordered them back to the negotiating table. But Mr. Kaster claimed the judge made the order only after Cooper attorneys said in court they were willing to resume negotiations.
Previous settlement talks had failed, Mr. Kaster said, and he had just told Judge Howard that he believed further negotiations were useless.
A Cooper spokeswoman said the judge ordered further negotiations ``after both parties expressed reluctance about settlement.''
In its official statement about the settlement, Findlay, Ohio-based Cooper reiterated its position that the destroyed documents were irrelevant to the Hervey case. It added that Cooper did not cause the Herveys' accident, the settlement would not affect Cooper's financial position, and the company's insurance would pay for the settlement.
Mr. Kaster told Tire Business that he isn't entirely happy about the settlement. ``I would have preferred to try this case.'' He claimed to have uncovered evidence against Cooper, but said ``there will be no trial now, so I can't tell you or anyone else what we have.''
Paul Byrne and Jerry Kelly, the Herveys' local counsel, decided it was better to accept a settlement now than to risk an appeals process that could take years, according to Mr. Kaster. He said their position was completely justifiable, since ``(the Hervey brothers) have gone four years without proper medical care.''
A Cooper spokeswoman accused Mr. Kaster and other plaintiffs' attorneys of twisting the facts in the case. ``What is this evidence they planned to present at trial?'' she said. ``They're trying to imply they had something further, when in fact the judge threw out all the plaintiffs' evidence.
``We wanted to take this case to trial as well,'' she added. ``They wanted to keep our expert witness from testifying because he would have shown that our tire was made properly.''
Still, it was in the best interests of all parties involved to settle, she said.