Ford Motor Co. faces a third trial in a Bronco II product-liability suit because an appeals court said the plaintiff was improperly denied the chance to cross-examine a former Ford executive about the company's alleged failure to fully disclose the testing data to the government.
The West Virginia Supreme Court of Appeals ruled unanimously that correspondence from the National Highway Traffic Safety Administration to Ford could be used to challenge the testimony of Ford's former auto safety director, Roger Maugh.
The plaintiff's lawyer, Edgar Heiskell III of Charleston, predicted that the letter and related correspondence will be used at future Bronco II rollover trials across the country.
He said plaintiffs' attorneys will use the documents to try to prove that the vehicle was defective, that Ford fraudulently withheld information from the government and that the manufacturer should be liable for punitive damages.
His client, Debbie Sue Gamblin, sued Ford in the aftermath of a 1991 single-vehicle accident in which her 1989 Bronco II encountered a patch of black ice and slid forward into a telephone pole.
As she pulled the steering wheel to the left, the Bronco II slid across the roadway and into a ditch, where it rolled halfway over. Gamblin was injured, and her 3-year-old son died.
Ford denied any rollover-related defect allegations and contended Gamblin's suit was filed too late under West Virginia's two-year statute of limitations. Preston County Circuit Court Judge Robert Halbritter said the jury should determine whether Ford's allegedly fraudulent concealment of the defects stopped the clock on the statute of limitations.
The first trial ended with a deadlocked jury.
THE SECOND TRIAL
Before the second trial, Gamblin's lawyer wrote to NHTSA, alleging that Ford had withheld information from the agency during a 1988 investigation into possible Bronco II defects. He asked NHTSA to reopen its investigation and provide documents indicating that Ford had failed to supply some pre-production testing reports.
In response, NHTSA wrote to Ford asking for a written reply to the allegations and discussing the agency's previous requests for information.
At the second trial, Gamblin's lawyer unsuccessfully tried to get the NHTSA letter admitted into evidence and to use it to cross-examine Maugh after he testified that Ford had submitted all requested documentation during the original NHTSA investigation.
Maugh also told the jury NHTSA had closed the investigation after finding no defects in the Bronco II.
The jury found in favor of Ford.
The state Supreme Court said the letter could not be used as direct proof of Ford's liability but could be used to challenge Maugh's testimony.
Gamblin 'was denied the opportunity to conduct a fair cross-examination,' the court said. 'Contrary to Maugh's testimony, the letter demonstrates that Ford did not provide NHTSA with certain documents it requested during its prior investigation.'
A lawyer for Ford, Michael Bonasso of Charleston, said: 'The document in question had to do with whether Ford provided the material. Ford contended and still contends it always gave' the agency what was required.
'This was not a letter making findings or reaching conclusions,' Bonasso said, adding that NHTSA's review process 'is still ongoing.'
Heiskell, Gamblin's lawyer, said Ford had a duty to disclose to NHTSA prototype tests that showed the Bronco II rolling over at slow speeds. 'Why was Ford so anxious to hide its test results if it didn't believe there was a defect?' he asked.
He said the new trial probably will begin next summer.
Court: Borrower couldn't steal own car
The Virginia Court of Appeals has overturned a borrower's conviction for obtaining a vehicle by false pretenses because the secured lender did not own the vehicle when the fraud took place.
The borrower, Tracy Bolden, couldn't be guilty of stealing her own car, the three-judge panel ruled. Bolden did not appeal her conviction on two related charges.
According to the court, Bolden received a loan from Toyota Motor Credit Corp. in February 1996 to buy a new Toyota RAV4. The certificate of title listed her as the owner and Toyota Credit as the lien holder. Toyota Credit held onto the certificate.
She made no payments.
About four months later, Bolden applied for a duplicate title and gave the Virginia Department of Motor Vehicles a letter purportedly from Toyota Credit stating that the lien had been satisfied. She later confessed to police that she had falsified the letter to get a lien-free certificate so she could sell the vehicle.
The indictment accused her of larceny by false pretenses, forgery and a third forgery-related felony. During a bench trial in Henrico County Circuit Court, Bolden contested only the false-pretenses charge, said her lawyer, John Parsons of Richmond, and was unsuccessful.
'I was trying to make the point that she was the owner,' he said.
The appeals court agreed that Bolden had not obtained the vehicle by false pretenses from Toyota Credit, as the indictment alleged, and that someone cannot steal by false pretenses what he or she legally owns.
'Title passed to Bolden upon the delivery of the vehicle to her and issuance of the original certificate of title,' Judge Jere Willis Jr. said for the three-member appellate panel. The court said Bolden was the legal owner both before and after her fraudulent conduct.
'Toyota Credit's physical possession of the certificate of title did not give it ownership of the vehicle,' the court continued. 'Toyota Credit never had possession or ownership and never asserted a right to repossess it. Bolden maintained actual and uninterrupted possession of the vehicle before, during and after her receipt of the duplicate certificate.'
She had been sentenced to eight months in prison on each of the three charges, or a total of 24 months. So her maximum stay behind bars now will be 16 months.
Jonathan Amacker, of the state attorney general's office, said no decision has been made on whether the prosecution will appeal further.
In a separate decision this fall, the Virginia Supreme Court ruled Toyota Credit cannot enforce its lien against C.L. Hyman Auto Wholesale Inc., which bought the RAV4 from Bolden. In that civil case, the court described both companies as 'innocent victims' of Bolden's actions. It said Toyota Credit, as the secured creditor, must absorb the loss, since the wholesaler was a 'bona fide purchaser for value' and had the right to rely on the lack of lien notations on the certificate of title.
Parsons said no civil claims had been filed against Bolden.