En Español

Do I have a case for my auto defect?

Free Case Evaluation - Our full time staff is ready to evaluate your case submission and will respond in a timely manner.

Personal Injury Legal Cases

1995 Ford Explorer Tire Defect Leads to Rollover, Roof Crush and Causes Fatal Injuries

IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN DIEGO

JOSE MAZON MARTINEZ; JESUS MANUEL IBARRA CAMPOS; REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, Individually and as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, Individually and as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased, Plaintiffs, vs.
FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY, POWER TIRES, LEADER AUTO SALES and DOES I - 100, Inclusive Defendants.

CASE NO: 873813
COMPLAINT FOR DAMAGES FOR PERSONAL INJURIES, WRONGFUL DEATH, and SURVIVAL ACTION for:

  1. Strict Product Liability
  2. Negligent Product Liability
  3. Negligent Maintenance and Repair
  4. Negligent Infliction of Emotional Distress

DEMAND FOR JURY TRIAL

Come now, Plaintiffs, JOSE MAZON MARTINEZ; JESUS MANUEL IBARRA CAMPOS; REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, Individually and as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, Individually and as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased, and for causes of action against defendants, allege as follows.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

  1. At all times herein mentioned, plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS, were and are individuals and bring this action on behalf of themselves, as individuals, for the serious personal injuries they suffered in the crash that is the subject matter of this lawsuit.
  2. At all times herein mentioned prior to their death, ANDRES ESPARZA HERNANDEZ, deceased and GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased, were lawfully married husband and wife.
  3. At all times herein mentioned, Plaintiffs, REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, were and are the natural parents and surviving heirs of the decedent, GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA. Plaintiffs, REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, were and arc the Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA and bring this action on behalf of the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, as a survival action, pursuant to California Code of Civil Procedure §377.32.
  4. Plaintiffs, REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN also C.C.P. bring this action as a wrongful death action, pursuant to §377.60, for the wrongful death of their daughter, GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA.
  5. At all times herein mentioned, Plaintiffs, ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, were and are the natural parents and surviving heirs of ANDRES ESPARZA HERNANDEZ, deceased. Plaintiffs, ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, were and are the Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ and bring this action on behalf of the Estate of ANDRES ESPARZA HERNANDEZ, as a Survival Action, pursuant to California Code of Civil Procedure §377.32.
  6. Plaintiffs, ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE C.C.P. ESPARZA, also bring this action as a wrongful death action, pursuant to §377.60, for the wrongful death of their son, ANDRES ESPARZA HERNANDEZ, deceased.
  7. At all times mentioned in this Complaint, Defendants, FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY, POWER TIRES, LEADER AUTO SALES and DOES I - 100 and each of them, were individuals, corporations, partnerships, and/or associations residing in and/or authorized to and/or doing business in the County of San Diego, in the State of California.
  8. Plaintiffs are informed and believe and thereon allege that at all times mentioned in this Complaint, Defendant, FORD MOTOR COMPANY was and is a corporation, organized and existing under the laws of the State of Delaware, with a principal place of business in the City of Dearborn, in the State of Michigan, and which was residing in and/or authorized to and/or qualified to and/or was doing business in the County of San Diego in the State of California. Defendant, FORD MOTOR COMPANY is and was a citizen of the States of Michigan and Delaware.
  9. laintiffs are informed and believe and thereon allege that at all times mentioned in this Complaint, Defendant, COOPER TIRE AND RUBBER COMPANY, IS and was a corporation, organized and existing under the laws of the State of Delaware, with its principal place of business in the City of Findlay, in the State of Ohio. Defendant, COPPER TIRE AND RUBBER COMPANY, is and was a citizen of the States of Delaware and Ohio.
  10. Plaintiffs are informed and believe and thereon allege that at all times mentioned in this Complaint, Defendant, LEADER AUTO SALES, is and was a business entity, the formof which is unknown at this time. Defendant, LEADER AUTO SALES, is and was located at 4630 Border Village Road, Suite 201e, San Diego, California, and IS and was the entity from whom the decedent, ANDRES ESPARZA, purchased the SUBJECT VEHICLE. Defendant, LEADER AUTO SALES, is and was a citizen of the State of California.
  11. Plaintiffs are informed and believe and thereon allege that at all times mentioned in this Complaint, Defendant, POWER TIRES, is and was a business entity, the form of which is unknown at this time. Defendant, POWER TIRES, is and was an "Independent Dealer" located at 165 Broadway Blvd., Chula Vista, California, from whom the decedent, ANDRES ESPARZA HERNANDEZ, purchased the SUBJECT TIRE. Defendant, POWER TIRES, is and was a citizen of the State of California.
  12. The true names and/or capacities, whether individual, corporate, associate, governmental or otherwise of defendants, DOES 1 through 100, inclusive and each of them are unknown to the Plaintiffs at this time, who therefore sue said defendants by such fictitious names. When the true names and/or capacities of said defendants are ascertained, the Plaintiffs will seek leave of this Court to amend this Complaint accordingly.
  13. The Plaintiffs are informed and believe, and based thereupon allege, that each defendant designated herein as a DOE was responsible, negligently or in some other actionable manner, for the events and happenings herein referred to which proximately caused the damages to the Plaintiffs as hereinafter alleged, either through said defendant's own negligence or through the conduct of its agents, servants, employees or representatives in some other manner.
  14. The Plaintiffs are informed and believe and based thereupon allege that at all times mentioned herein the defendants and each of them were the agents, servants, employees, representatives and/or joint venturers of their co-defendants and were, as such acting within the course, scope and authority of said agency, service, employment, representation and/or joint venture in that each and every defendant, as aforesaid when acting as principal, was negligent in the selection and hiring of each and every other defendant as an agent, servant, employee, representative and/or joint venturer.
  15. The Plaintiffs are informed and believe, and based thereupon allege that at all times mentioned herein each of the defendants, including Defendants DOES 1 through 100, inclusive, and each of them were the agents, servants, employees, representatives of each of the remaining defendants and were at all times material hereto acting within the authorized course and scope of said agency, service, employment and/or representation, and/or that all of said acts, conduct and omissions were subsequently ratified by their respective principals and the benefits thereof accepted by such principals.
  16. At all times mentioned herein, Defendants, FORD MOTOR COMPANY, COOPERTIRE AND RUBBER COMPANY, LEADER AUTO SALES, POWER TIRES, and DOES I through 100, inclusive, were and are engaged in the business of manufacturing, fabricating, designing, assembling, distributing, selling, inspecting, servicing, repairing, marketing, warranting, leasing, renting, selling, retailing, wholesaling and advertising a certain 1995 Ford Explorer, License Plate No: AHG2938, VIN No: IFMDU34XOSZN55799 (hereinafter "SUBJECT VEHICLE") and catch and every component part thereof: which defendants knew, or made the exercise of reasonable care should have known, would be used without inspection for defects in its parts, mechanisms or design, for use in the State of California and elsewhere.
  17. At no time at or prior to such sale did said Defendants ever issue any warnings or notifications about any dangers or safety issues extant in the SUBJECT VEHICLE, or any of its component parts, to plaintiffs or decedents, nor did said Defendants ever advise the decedents or the plaintiffs that the vehicle was not mechanically sound or that the vehicle was unsafe to operate.
  18. On or about February 9, 2006, at approximately 3:00 P.M., the decedents and the plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS were traveling in the SUBJECT VEHICLE, in Mexico, towards Churintzio, Michoacan, on the Mexico City-Nogales Highway, in the State of Michoacan. The decedents and the plainl1ffs were properly-restrained occupants of the SUBJECT VEHICLE while it was traveling at highway speeds when the right rear tire lost its tread, and came apart, thereby initiating the loss of control of the SUBJECT VEHICLE. The SUBJECT VEHICLE veered on to the paved surface and rolled over in the center dividing space, crushing the roof of the SUBJECT VEHICLE coming to rest m a position perpendicular to the centerline of the road. The occupants of the SUBJECT VEHICLE, plaintiffs and plaintiffs' decedents, suffered traumatic and severe personal injuries as a result thereto: and the decedents suffered severe, and fatal injures as a result thereof.
  19. Plaintiffs are informed and believe and thereon allege that the Decedents survived for a period of time following the initial injuries sustained in such crash, but thereafter died at the scene of the accident prior to the arrival of emergency services.
  20. FIRST CAUSE OF ACTION - STRICT PRODUCT LIABILITY

    (Against Defendants FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY POWER TIRES, LEADER AUTO SALES and DOES I through 100, Inclusive)

  21. Plaintiffs re-allege and incorporate by reference each of paragraphs 1 through 19, 4 above, as though fully set forth herein.
  22. Defendants, FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY, POWER TIRES, LEADER AUTO SALES and DOES I through 100, and each of them,knew that the SUBJECT VEHICLE was to be purchased and used without inspection for defects bythe users of that vehicle including but not limited to the plaintiffs and decedents herein.
  23. The SUBJECT VEHICLE and each of its component parts was manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, serviced, adjusted, selected and used with inherent vices and defects both design and manufacturing and by failure to warn (hereinafter "SUBJECT DEFECTS") which made it dangerous, hazardous and unsafe both for its intended use or for reasonably foreseeable misuses.
  24. These SUBJECT DEFECTS included, but were not limited to the following:
    • Defective and unsafe tires, which tailed to perform during the accidentsequence, when such tires were used as intended on or about February 9, 2006, when the right rear tiresuffered a tread separation and came apart, causing the driver of the vehicle to lose control of the SUBJECT VEHICLE. The tire came apart while the vehicle was in operation, at highway speeds, well within its expected lite and was unreasonably dangerous at the time it was designed, manufactured, distributed and serviced. Plaintiffs are informed and believe that the catastrophic failure was due to defects in manufacture and design, which defects involved a "tread separation," resulting in complete or partial detachment of the tread and outer belt (or top belt) from the tire's carcass and inner belt (also referred to as the lower belt or thirst belt). Detachment of the tread and second belt from the carcass significantly alters the lateral stillness and other properties of the tire, with a consequent reduction in vehicle stability, which can lead to crashes, injures and fatalities. Defendants' own claims databases indicate that tread separation claims have been associated with numerous crashes which have led to 74 deaths and over 350 injuries. Tread separation claims reported to the Notice of Defects.
    • Investigation, U.S. Department of Transportation, National Highway Traffic Safety Administration, have reportedly led to 192 deaths and over 500 injuries. Despite the availability to defendants of supple methods to correct the defects: defendants could have increased the dimensions of the belt wedge and improved its material properties and widened the inter-belt gauge, however, defendants instead, cut costs to increase their profit margin at the expense of human life. In addition, defendants had available to them a safer, alternative design, for approximately $1.50 per tire, the use of a nylon cap ply that is wrapped circumferentially over the steel belts cinch that the nylon cords are aligned with the equatorial centerline of the tire. This mechanical device acts like a tourniquet and restricts the amount of growth due to the centrifugal load on the tire. The physical restriction of the cap ply causes the movement of the belt edge to be significantly reduced, making the tire more durable and less likely to fail from belt separations and therefore safer than those without. The benefits are well known in the tire industry and documented in the patent literature. Use of the nylon cap ply, m this case, would have prevented the tread separation which led to the loss of control of the vehicle, the subsequent roll of the vehicle, the severe roof crush and ejection and eventual deaths of the decedents and severe personal injuries of the plaintiffs herein.

    • "A" AND "B" pillars/windshield headers and roof rails fabricated Without sufficient strength and structural integrity to withstand roof crushing forces without impending injury-producing forces upon vehicle occupants during foreseeable accident rollovers of such vehicles.
    • Insufficient directional, lateral and roll stability so as to keep the vehicle upright during cornering and handling by an ordinary driver during reasonably foreseeable roadway and traffic conditions, which Defendants at all times knew and were aware could and did cause substantial severe and life-threatening internal injuries when used m a reasonably foreseeable manner by a passenger of its vehicles, and which Defendants and each of them further knew and were aware would fail to keep the vehicle upright during cornering and handling by an ordinary driver during reasonably foreseeable roadway and traffic conditions.
    • Defective and unsafe restraint system, including but not limited to seat belt buckles, seat belts, shoulder belts and retractors, defects including but not limited to Fabe latching, inertial unlatching, inadvertent unlatching, lack of per-tensioners, and retractor failure, which defendants and each of them knew and were aware would fail to restrain an occupant in the SUBJECT VEHICLE in the event of a roll-over and/or side-slip/skid accident, and which, in this case, failed to restrain the decedent(s) and plaintiffs and which further facilitated the total and partial ejection of the decedent(s) and plaintiffs during the accident sequence.
    • Weak, defective and unsafe seat systems, including their components, such as seat backs, recliner mechanisms and seat tracks, which failed to perform during the accident sequence,including such failures as breakage of seat adjusters, breakage of folding seat back locks and supports, or separation of the anchorage from the vehicle, causing occupant ejection, loss of driver control, reduced effectiveness of the restraint system, injury to rear seat passengers, injury to fully restrained front and rear seated passengers, and reduction or loss of egress capabilities of back seat passengers. Despite the availability of simple methods to correct the defects, as recommended by defendants own automotive engineers: defendants could have used wider and stronger metal for the seat cushion frames and could have strengthened the point at which the seat back connects to the cushion frame, the pointat which the seat slides back and forth, and the point at which the seat fastens to the floor, and in spite of the known risk of serious and fatal spinal injuries, and occupant ejection, defendants chose to ignore the inherent safety problem, and took no action to prevent such debilitating injuries and deaths, because of concern about cost penalties. A minimal amount of strategically applied metal, along with proper seat padding and contour, would have eliminated the unnecessary hazards that resulted in the two fatalities and serious injuries, such as those that occurred in this case.
    • Defective bolt that attaches the seat recliner mechanism to thedriver seat back frame so that the bolt fractures, causing the seat back to recline, making contact with an object behind the seat or the second row cushion, causing the driver to lose contact with the steering wheel or foot pedals, resultingcrashes. Such defect was the subject of a recall by Defendant, FORD MOTOR COMPANY, Ford Recall No. 03S02, and of which Defendants were at all times prior to the SUBJECT INCIDENT aware, and of which said defendants failed and refused to take any action to warn at any time prior to the SUBJECT INCIDENT, despite ample time and opportunity to do so.
    • Defective and unsafe use of tempered glass and glazing deficiencies in the side and rear windows, which glass totally failed during the accident sequence, opening portals for the decedent's laceration, ejection and serious, fatal injuries, which glass and glazing defendants knew and were aware would fail, shatter and lacerate the occupants and create openings for occupant ejection in the event of a roll-over and/or side slip/skid or rear impact accident, and which in this case, did create a portal and opening allowing the decedents and plaintiffs to be partially and totally ejected during the accident sequence, and causing serious injuries and fatal injuries and death. Despite the availability to defendants of the knowledge and technology to use laminated glass or protective glazing, defendants did not include laminated glass or protective glazing in the side and rear windows of the SUBJECT VEHICLE, which laminated glass and/or proper glazing would have prevented the partial and total ejections of the occupants' bodies and body parts during the roll over and side slip/skid accident and the serious and fatal injuries sustained by the plaintiffs and decedents during the accident sequence.
    • Defendants and each of them, despite their awareness of the aforementioned dangers and defects in the SUBJECT VEHICLE, failed to give any warnings to Plaintiffs, Plaintiffs' decedents and/or other purchasers and users of the SUBJECT VEHICLE of the aforementioned dangers and defects in the SUBJECT VEHICLE.
  25. Said product and each of its component parts and/or after market parts and/or installation guides was unsafe for its intended use and reasonably foreseeable misuses by reason of the defects in its design and/or manufacturing and/or failure to warn by said Defendants, and each of them, in that when the SUBJECT VEHICLE, and each of its component parts and/or after market parts and/or installation guides was used by Plaintiffs and thedecedents on or about February 2,2006, as intended or in a reasonable foreseeable manner, the SUBJECT VEHICLE, during reasonably foreseeable driving maneuvers, was dangerous and unsafe. The SUBJECT VEHICLE'S right rear tire lost its tread and came apart, and did suffer a loss of lateral control, and did rollover in a roof crushing crash, causing serious and fatal injuries. The vehicle veered off of the road and rolled, crushing the roof of the vehicle and rendering the restraint system ineffectivecoming to rest on its wheels, and did in fact partially and totally eject the plaintiffs and decedents during the accident sequence because of the total failure of the seats and seat backs, total failure of the restraint system and total failure of the glass in the side and rear windows, causing serious and fatal injuries to plaintiffs and plaintiffs' decedents, egally resulting in Plaintiffs' damages as set forth he-rem.
  26. As a direct and legal result of the conduct of defendants, and each of them, and the defects inherent in the vehicle, severe and permanent injuries were caused thereby to Plaintiffs, including quadriplegia and other physical and mental injuries, and serous fatal injuries were caused to the decedents, all in tum legally resulting in Plaintiffs' special and general damages in a sum in excess of the minimum subject matter jurisdiction of this Superior Court according to proof at trial.
  27. As a further direct and legal result of the conduct of defendants, and each of them, and the defects inherent in the vehicle, each of its component parts and/or after market parts and/or installation guides, Plaintiffs have suffered and will continue to suffer, a loss of earnings and a loss 10 of earning capacity, in a sum in excess of the minimum subject matter jurisdiction of this Superior Court according to proof at trial.
  28. As a further direct and legal result of the conduct of defendants, and each of them, Plaintiffs have suffered a loss of their children's consortium, including a loss of love, companionship, comfort, attention, society, solace, moral support, and have further suffered the loss of their financial assistance, all to Plaintiffs damages a sum in excess of the maximum subject matter jurisdiction of this Superior C0U11 according to proof at trial.
  29. As a direct and legal result of the conduct of defendants, and each of them, and the defects inherent in the vehicle and each of its component parts, Plaintiffs' decedents suffered for a period of time pI10r to their death. In addition, plaintiffs have incurred funeral and burial expenses compromising economic damages in a sum to be established according to proof at trial.
  30. ALLEGATIONS SUPPORTING EXEMPLARY DAMAGES PRAYER BY Plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS, Individually, and REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, ONLY as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; and ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, ONLY as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased, ONLY AGAINST FORD MOTOR COMPANY; COOPER TIRE AND RUBBER COMPANY and DOES 1 through 5, Inclusive
  31. Plaintiffs are further informed and behave and thereon allege that Defendants, FORD MOTOR COMPANY and COOPER TIRE AND RUBBER COMPANY and DOES I through 5, and each of them intentionally engaged in conduct which, with respect to the SUBJECT DEFECTS,Plaintiffs allege was a legal cause of their loss, damages, and their decedents' fatal Injuries and harm, exposed Plaintiffs and plaintiffs' decedents and other users of the SUBJECT VEHICLE to serious potential danger known to the Defendants In order to advance the Defendants' pecuniary interests and thus acted with a conscious disregard for the safety of the Plaintiffs, Plaintiffs' decedents, and other users of the SUBJECT VEHICLE, warranting an award of exemplary damages against Defendants FORD MOTOR COMPANY, COPPER TIRE AND RUBBER COMPANY and DOES I through 5, inclusive, pursuant to California Civil Code §3294, and the rule enunciated Ford Motor Co. v.111 Home 1115. Co. (1981) 116 Cal. App.3d 374, 381-382 and PPC Industries, Inc v. Transamerica 1115. Co. (1996) 49 Cal. Appath 1120. The facts supporting the Defendants' intentional conduct which exposed plaintiffs, plaintiffs' decedents and other users of the SUBJECT VEHICLE to serious potential danger known to the Defendants in order to advance the Defendants' pecuniary interests, are belief on information and as follows.
  32. Ford's engineers have known from the time of the development of the predecessor tothe Explorer, the Bronco II, that the most important characteristic in maintaining control and reducing the propensity of SUVs to rollover is under steer. Ford's internal engineering documents identify under steer as a "first order effect" and the "primary factor influencing rollover propensity". The handling problem with an under steering vehicle, with respect to rollover propensity, is that it can and likely will result in the back end of the vehicle coming around (a loss of control) with the vehicle ending up Sideways to its path of travel. The resulting side forces ("lateral acceleration") are what cause rollover.
  33. Ford also recognized a vehicle's "stability index" or "static stability factor" the relationship of center of gravity height and the track width of the vehicle affects rollover stability. Ford's engineers adopted a "handling strategy" with respect to the Explorer to "increase under steer all conditions" Ford's engineers recommended major changes from the Bronco II to Ford 111 management. They recommended changes to the suspension, reduction in the engine height to lower the center of gravity, and an increase in the track width of the vehicle to make the Explorer more resistant to rollover than the Bronco II. Ford's knowledge of the critical importance of under steer was not acted upon.
  34. The under steer handling problem is exacerbated by another design defect handling problem with Explorer referred to as "Skate." Skate has been defined by Ford as the "loss of rear-end directional control" and will be discussed further herein.
  35. Ford management rejected the changes recommended by their own engineers to increase stability by lowering the center of gravity and increasing track width of the Explorer. These changes which Ford's engineers recommended to make the Explorer a safer, more stable vehicle would have meant a delay in the production date, "Job 1" date. Delaying the production date meant Ford would not recoup its $500 million investment in the development of the Explorer as quickly as desired by Ford. Roger Simpson, Program Manager of the Explorer (UN46) program, testified in Jaranillo vs. Ford Motor Company, United States District Court Western District of Washington, Docket No. COI-531IKA, February 19,2003, "It was a company-wide situation. If one Job I date fell, it started to impact other Job I dates as well." The Job 1 date for the release into production for the Explorer was set. Ford's engineers were under pressure to meet the UN46 (Explorer) ride and handling objectives. Additionally, Consumer's Union, was testing SUVs for stability and handling and publishing their results. The UN46 (Explorer) could not pass the Consumer's Union test and their own internal testing without experiencing two wheel lift, a precursor to rollover. In a 1989 development report, after noting they had investigated variations in tire pressure "as a means to achieving the UN46 (Explorer) ride and handling objectives," Ford's engineers recommended use of "reductions in tire pressure to meet the program objectives" for both ride and handling. Ford's marketing department was recommending larger tires (which reduced the vehicle's stability). Ford put dollars m front of safety and recommended the larger tire, but with reduced air pressure. When it came to creating under steer, Ford's engineers again turned to lower tire pressure.
  36. By putting profits and public relations image in front of safety, Ford produced a vehicle beginning with the Ford Bronco II and continuing with Explorer that was still prone to handling problems, going out of control in response to simple accident avoidance maneuvers and when operated by the ordinary driver, as well as stability problems that resulted in unnecessary rollovers.
  37. DEVELOPMENT OF TIRE EXPLORER

    Flawed Design

  38. In the early 1980's there was growing concern in the automotive industry including Ford, about published studies concluding that utility vehicles as a group and the Jeep CJ vehicles in particular, were much more prone to catastrophic rollover accidents than passenger cars. This prompted Ford to reexamine the design of the Bronco II to make sure it was more stable than the Jeep. During the development of the Explorer (called the UN46 program), Ford's objective was to improve on the Bronco it's stability by reducing ride height (i.e. center of gravity) and widening the track (distance between the mid-point of the left and right wheels). As referenced above, making these changes would have increased the Static Stability Factor. The objective was to develop a vehicle so as to "reduce the situations where a driver would lose control of the vehicle and whence a rollover accident may occur".
  39. In November, 1986, Ford published its Light Truck Limit Handling Objectives. According to this report, although light trucks have a higher center of gravity than passenger cars, 16 they: "must still be designed to be safe and predictable in even the most severe accident avoidance situations. Light Truck Engineering's goal is to design a truck that will provide safe and predictable response in limit handling situations."
  40. On February 27th, 1987, Ford published its Light Truck Safety Guideline Strategy which contained the Resistance to Roll-Over Guidelines. The objective is set forth as follows:
  41. Light Truck Chassis Engineering's objective is to design and develop a vehicle that will remain stable under all operational conditions, including accident avoidance maneuvers. The vehicle should respond in a predictable manner and give the driver perceptible signals that the vehicle is at its limit.
  42. The same concerns that were raised in 1982 concerning the Bronco II (avoiding rollover by optimizing "vehicle handling parameters which virtually preclude vehicle over reaction to excessive steering wheel inputs in accident avoidance maneuvers") were again being raised In connection with the Explorer.
  43. Ford described the Explorer as a new and freshened Bronco II. Ford mainly intended to use the Bronco 11 name, but decided to change the name to Explorer when the Bronco II came under fire for rollover problems and Ford sought to distance itself from these criticisms of the Bronco II. Over half the parts of the four-door Explorer were carried over from the Bronco II. For the two-door Explorer, over 80% of the parts were carried over from the Bronco II. This carryover of parts from the Bronco 11 helped assure that the Job I date (the date the first unit is scheduled to roll off the assembly line) for the Explorer was met. The original Job I date was February 5,1990, although it slipped to July 1990.
  44. In designing the Explorer, Ford stuck with the basic Bronco II frame and suspension and tweaked the tire size and air pressure in a failed attempt to address stability concerns. As a result the Explorer shared virtually the same track width, high engine mount and elevated center of gravityas its parent vehicle, the Bronco II. As Ford admits in an internal report, "Given the fundamental constraints imposed by the vehicle package and suspension 'type' carried over from the Bronco II, Ford struggled to reduce the Explorer's rollover propensity. As Ford further admits, "The relatively high engine position of the Explorer, unchanged from the Bronco II, prevents further significant improvement in Stability Index without extensive suspension, frame and sheet metal revisions." Ford acknowledged back in 1986 that the "Stability Index" (SI) is the first order static indicator of a vehicle's resistance to rollover." The SI is defined as the average front and rear track width divided by the center of gravity height. The higher the SI, the more stable the vehicle. In early 1981, when Ford was grappling with the need to improve the Stability Index of the Bronco II to address the rollover problem, Ford issued a Program Report entitled, "Revised Stability Index for Utility" wherein the following was stated: In order to improve stability index substantially, the following are required: (1) widened track width, and (2) lower center of gravity.
  45. These were not implemented for the Bronco II. At that time, Ford had measured the Stability Index of the Jeep CJ5 to be 2.19. Ford had, just before the release of the Bronco II, estimated the Bronco 11 Stability Index to be 2.14. In May 1987, prior to approval for the UN46 program, Ford created a document entitled "UN46 Ride Height Revision Proposal". The first paragraph reads: Current program direction for vehicle ride heights result in step heights deficient to the competition and stability indexes less than current Bronco II. The objective of this paper is to provide a proposal which will improve step height, stability index and limit handling. Impact of these changes to program costs, timing and complexity will be addressed.
  46. According to a chart published by Ford, theStability Index of the Bronco II was measured to be 2.15 Gust slightly better than what was estimated on the November 1982 report but still lower than the CJ5). According to this Ford document, SI's (Stability Indexes) for the Explorer of 2.22 ("component proposal") and 2.27 ("car design method") were being proposed, although the original design of the four-door 4x4 had a SI of only 2.09 (lower than Bronco II or CJ5). In September of 1987, Ford Engineering proposed that the Explorer achieve a SI 01'2.29. However, as of June 1990 Gust prior to the Job 1 date 01'7/19/90), the Explorer 4x2 two-door had an actual SI of 2.18, and the 4x4 four-door had an SI 01'2.19 (Snodgrass deposition at 59: 1-62:24). The 4x2 four-door had an SI of 2.16.
  47. Therefore, the 4x2 version of the UN46 Explorer had a Stability Index lower than what Ford had measured for the Jeep CJ5. Thus, the "first order static indicator of a vehicle's resistance to rollover showed the UN46 Explorer to be as bad, if not worse, from a rollover perspective, as the CJ5. During the development of the Explorer, Ford had great difficulty getting it to pass the Consumers Union accident avoidance maneuver (double lane change driving test) without experiencing two wheel lift (i.e., rollover). That was "worrisome" to Ford's engineers from an occupant safety standpoint. After failing the Consumers common test, Ford resorted to signing off on the UN46, as well as the UPN105 (the 1995 through 2001 model year Explorer) using the ADAMS computer program, running only the J-turn test on it. Moreover, there were concerns among Ford's engineers that there were "inconsistencies" the ADAMS program that caused questions about its validity.
  48. Ford had discussed widening the track width of the UN46 Explorer as a consequence of the failed Consumers Union testing in 1989. Ford's engineers were advocating widening the track width by two inches and lowering the center of gravity of the vehicle.
  49. One of Ford's lead design engineers, James Mason, was deposed on January 8, 2004. Mr. Mason at first denied knowledge of the memo he wrote urging that the vehicle be lowered, widened, and that the roll stillness be increased. Only when confronted with his memorandum did Mr. Mason admit that these suggestions had been made and ignored, despite accident avoidance testing indicating the vehicle's stability problems. [po 43:5 - 47:16] Over a decade after Ford elected to sacrifice safety for profits, this engineer involved in Explorer development who now works for the Of1iee of General Counsel of Ford provided false and misleading testimony on this ethical issue.
  50. Seven months prior to Job I, Ford's engineers were suggesting a revision that would have greatly reduced the rollover propensity of the Explorer, but required 24 months to implement. These delays were unacceptable to Ford. The recommendation was to Implement only those changes that would not delay Job I and only the springs were adjusted. When Ford introduced the UPN 105 (1995-2001 Explorer), it did not widen the track, or lower the center of gravity, from what had existed in the UN46. One of the reasons it was unacceptable to widen the track two inched was because of Ford's desire to get a quicker return on its $562 million investment.
  51. Improper Tire Size

  52. Instead of making the fundamental changes that were needed to make the Explorer a stable vehicle, Ford chose instead to experiment with different tire sizes and air pressures. Ford engineers labeled the P 195 tire as the "base tire" on the Bronco II as they could achieve a satisfactory Stability Index with that size tire. The Bronco II with P215 tires, which Ford sold as an option tire on the Bronco II, could not pass Ford's rollover stability tests. One Ford engineer questioned thisapproach: Shouldn't we be looking at more permanent ways of improving the stability index of Bronco other than small tires?
  53. Another Ford engineering document explained that the company chose to play with the tire Size rather than spend the time and money to create a safer vehicle: Stability Index requirements are always tied to base vehicle (this position was developed with the help of OGE [Office of General Counsel]. Since the P215 pushes the stability index below the accepted minimum of 2.1, the suspension guys felt the only way out was to retain the base tire that has at least the minimum SI. Better alternatives to tire SIZE are, for example: lowering vehicle for lower CG, adding weight low in vehicle, and Widening track. Cost or timing implications of these kind of actions tend to stall them in their tracks. My position is that a more permanent method of meeting an SI minimum (as listed above) is needed, but we need a major commitment from the platforms to accomplish.
  54. In late 1988, over a year before the Explorer's Spring 1990 introduction, computer modeling showed that the vehicle "still has two wheel lift no matter what size tire is on It, 225/70,215/75 or 205/75". In February 1989, the computer simulation continued to show unacceptable rollover performance with certain P245 and P225 tires. The results remained poor even after lowering the rear of the vehicle by one-half inch and using 26 psi in the tires. Despite these poor results, Ford management concluded in February 1989 that with 26 psi in the P235 and P245 tires, and tweaking the suspension, stabilizer bar and one-half inch reduction in rear ride height, the Explorer would meet its handling objectives. The original tire size for the Explorer was supposed to be the P215 tire. However, as the 1990 Explorer was approaching Job I, Ford marketing was pressuring for larger tires from an appearance standpoint, while the engineers were concerned that the larger tires would rise the center of gravity and thus decrease st Ability. Marketing won out and the vehicle was released with P235 tires as an option. Most of the vehicles were sold with P235 tires. Ford released the Explorer with All-Terrain tires (off road tires) rather than the All-Season (highway) tires to cut down on the traction with the Idea being that the vehicle would likely slide than roll over.
  55. Ford then went to great lengths to get the vehicle to pass the J-turn test, including in a test in March 1989, unrealistically placing all four test dummies on the vehicle's floor to lower the vehicle's center of gravity. The Explorer still failed the test. Later in March 1989, the Explorer failed J-turn tests with a variety of tire pressures and suspension configurations. At one point, it was proposed that if the marketing implications were not too great, the P225 tire be the largest tire allowed on the vehicle and that the maximum load allowed for the vehicle be reduced. Even in August 1989, the Explorer failed J-tum tests at its Arizona Proving Grounds with 35 psi in the P235 tires.
  56. Concerned over the Explorer's struggling performance m rollover stability tests, in June 1989 Ford management considered releasing the tour-door Explorer on P225 tires as a "straw man" because it would pass the Consumer Union test with those tires, though not with the P235 tires. Later, after the "straw man" passed the test, Ford could quietly release the two-door and four-door on P235 tires. Ford's engineers were recommending lower tire pressures on all of the Explorers with 26 psi recommended for the P235 tires At 35 psi, the P 235 tires were failing the ADAMS computer simulation Ford's engineers recommended deleting the P235 tires entirely and only using the P225, while acknowledging the negative marketing implications.
  57. During all of this tweaking of the tire size and tire pressure, Ford knew that, given the high engine position of the Explorer ("unchanged from the Bronco II"), no significant improvement in stability was possible without "extensive suspension, frame and sheet metal revisions." Ford manipulated not only the design of the Explorer, but also the testing, in order to get the Explorer to look or seem like it was stable regardless of whether it really was or not, and regardless of the effect such manipulations would have on the margin of safe controllability.
  58. Ford did not change the center of gravity or track width in any realistic manner whatsoever from the Bronco II through UN46 up through the UPN I 05 (model year 1995 through 2001 Explorer). It was not until the 2002 model year that the Explorer's center of gravity was lowered and the track width was widened, although Ford knew from the early 1980s, and its experience with the Bronco II, that these two factors were key to rollover stability.
  59. The Problem of "Skate"

  60. In addition to stability issues as noted, the Explorer is especially defective in handling. This is not only as a result of the under steer problem but also due to its tendency to "skate." As noted previously, "skate" is the "loss of rear-end directional control." Any sort of excitation on the suspension, whether a rumble strip, a rough road, or a single pot hole can cause "skate." This is simple engineering and math.
  61. Ford vehicles dynamics engineer, Mr. Kenneth Kramer admitted that Ford knew that Rangers and Explorers had a skate problem at the time he wrote his Society of Automotive Engineers (SAE) article in 1996, with regard to skate. Mr. Kramer admits that "skate" could be brought about 27 by a single tramp input. Mr. Kramer was Instructed by Ford management not to mention the type or manufacturer of the Ford light truck which he tested for skate, but rather to simply refer to it as"Vehicle A."
  62. The "loss of rear-end directional control" is a severe safety hazard,acknowledged by way of Ford's advertisements of their light trucks, specifically the F-150, wherein Ford admits that moving the shocks outward and stiffening the shocks will help with control duringtramp situations. This was determined back in the mid-90's and has even been published by Ford Motor Company engineers Ken Kramer and Bill Janitor in their paper, Optimized Damping to Control Rear End Breakaway in Light Trucks. It is established science accepted by Ford engineers. Fordengineers David Shaffer and Ken Kramer have admitted that even a single excitation of the rear shocks can cause tramp in a Ford light truck, such as the Explorer, as a result of the Hotchkiss rear suspensionwith an overly soft shock. Kramer and Shaffer admitted, years before the SUBJECT INCIDENT, that Ford knew that by moving the shocks outward and stiffening the shocks, they could correct the skateproblem.
  63. The development history of the Explorer is a classic study of a company's willful and conscious disregard for the safety of its customers, by putting cost reduction and profits ahead of safety.
  64. Defendants' Knowledge of Explorer's Defective and Weak Roof Moreover, since 1968, Defendants and each of them have known and been placed upon notice contemporaneously as a result of crash data,in-house testing, field-service reports, and 19 published studies that actual users of and passengers carried within pickup trucks, vans, and sport utility vehicles ("SUV's") manufactured by said Defendants and each of them, including but not limited to, the SUBJECT VEHICLE, were susceptible to accident forces exceeding 8,000 Newtons which forces were more than sut1icient to cause and bring about, and which accident forces were and are causing and bringing about, serious and substantial head and neck injuries during rollovers when such trucks, vans, and SUV's, and the SUBJECT VEHICLE were and are actually used by such users of these vehicles and members of the public as 111tended or in a reasonably foreseeable manner.
  65. In or about 1983 and 1984, Chrysler and Anthony Sances of the Medical College of Wisconsin published industry studies of which Defendants and each of them were 111 receipt and on notice, which further established that the A-Pillars/Windshield headers and roof rails of such trucks,vans, and SUV's, and SUBJECT VEHICLE, must be manufactured and fabricated to withstand rollover crushing forces of at least 8,000 Newtons in order to adequately protect users of these vehicles and members of the public from serious injuries and/or death from crushing of the roofs of such vehicles during rollovers when such trucks, vans, and SUV's, and SUBJECT VEHICLE were and are actually used as intended or in a reasonably foreseeable manner.
  66. In or about 1984, Defendants and each of them, published and/or participated and/orreceived Hybrid 1II crash dummy specifications for a catastrophic compressive neck injury of 4,000 Newtons at the load cell (i.e., the base of the human head) when they knew at that time that such forces were approximately one-half of the crushing forces Defendants knew at the time, from Cadaver and other studies in their possession, were minimally necessary to effect head and neck injuries, which actions were taken to establish a false set of rollover crush force minimal which were not representative of actual rollover accident conditions, and which were intended by said Defendants to and which in fact did falsely lead the public and regulatory bodies of the U.S. Government to believe that the trucks, vans and SUV's, including the SUBJECT VEHICLE manufactured by the Defendants and each of them had sufficiently fortified A-Pillars/Windshield headers and roof rails within such trucks, vans, and SUV's, and SUBJECT VEHICLE so as to be able to withstand rollover crush forces of 4,000 Newtons.
  67. In fact this was half of the roof crush Impact forces said Defendants and each of themknew were actually being sustained in such rollover accidents, and which rollover crush forces said Defendants, and each of them knew, were well beyond the actual structural prophylactic limitations of the A-Pillars/Windshield headers and roof rails said Defendants were using and continued to use within such trucks, vans, and SUV's, and SUBJECT VEHICLE, such that said Defendants knew and intended that members of the public and users of such vehicles were being exposed and would continue to be exposed to death and serious injuries from the crushing of the roofs of such vehicles during rollovers when such trucks, vans, and SUV's, and the SUBJECT VEHICLE were and are actually being used as intended or m a reasonably foreseeable manner.
  68. In 1985, as a result of information which had come to light as a result of rollover crush accident data, in-house testing, field-service reports, and published studies, Defendants and each of them published and/or participated in and/or received position papers detailing rollover roof crush studies claimed to have performed in-house (during calendar years 1983 and 1984) (hereinafter "MALIBU 1 TEST RESULTS"). Said Defendants and other automakers, and each of them knew, and intended that the MALIBU 1 TEST RESULTS falsely concluded and misrepresented, based upon the 1983 to 1984 testing performed by said Defendants and the data obtained therefrom, that:
    • 4,000 Newtons was the reasonable average rollover crush force delivered and extant in typical rollover crush accidents, when in fact defendants knew that the actual rollover impact forces were twice that number, i.e., at least 8,000 Newtons;
    • That a videotaped excerpt from the testing data which showed substantial injuries being delivered to the head of a test subject were merely a contact patch, and not an actual instance of a rollover crush injury, when in fact Defendants knew at the time that this was not the case;
    • That the roof strength of the A-Pillars/Windshield headers and roof rails which use half-sections of roll tubing ("OPEN SECTIONS") are just as secure and will prevent rollover crush injuries just as effectively as complete roll tubing ("CLOSED SECTIONS"), which said Defendants knew at the time was false;
    • That the roof strength of the A-Pillars/Windshield headers and roof rails were just as effective and secure and would and did prevent rollover crush injuries Just as effectivelyin a production model trucks as in a roll-caged trucks, when in fact said Defendants knew this was false.
  69. Defendants and each of them, individually and in concert with other automakers, further knowingly falsified their test results, ignored and suppressed data, and further falsely mis-characterized adverse test data which the Defendants knew at the time tended to prove that their trucks, vans and SUV's and the SUBJECT VEHICLE were defective and unsafe in real world rollover accidents, and would and did expose members of the public and users of said Defendants' trucks, vans, and SUV's and the SUBJECT VEHICLE to death and serious head and spinal injuries in the MALIBU I TEST RESULTS due to the insufficient strength of the A-Pillars/Windshield headers and roof rails in such vehicles.
  70. After demands were made by litigants and other members of the public following the 1985 publication of the MALIBU I TEST RESULTS, said Defendants and each of them, individually and in concert with other automakers, intentionally spoiledand destroyed critical test evidence andtest documentation upon which the MALIBU I TEST RESULTS were allegedly based, so as to prevent discovery of the falsehoods and misrepresentations made by said Defendants in the MALIBUTEST RESULTS, and to prevent disclosure of the fact that said Defendants knew that and were knowingly and intentionally exposing users of said Defendants' trucks SUV's vans and Pick-Up's, and the SUBJECT VEHICLE,including Plaintiffs' decedent, to death and serious head and spinal injuries in the MALIBU I TEST RESULTS, due to the insufficient strength of the A- Pillars/Windshield headers and roof railsinstalled in such vehicles.
  71. In 1990, Defendants and each of them again published and/or participated in and/or received second position papers detailing rollover roof crush studies said Defendants and other automakers claimed to have performed in-house (hereinafter "MALIBU 2 TEST RESULTS"), in which results said Defendants knowingly and intentionally falsified test data. Defendants and each of them knew and intended that the MALIBU 2 TEST RESULTS falsely concluded and misrepresented, based upon the 1983 to 1984 testing perfom1ed by the said Defendants and the data obtained therefrom, that:
    • The test data conducted and upon which the MALIBU 2 TEST RESULTS were based, supported the conclusion that 4,000 Newtons was the reasonable average rollover crush force delivered and extant typical rollover crush accidents, when in fact said defendant knew that the actual rollover impact forces were twice that number, i.e., at least 8,000 Newtons;
    • That the restraint systems in said Defendants' trucks, vans, and SUV's, and the SUBJECT VEHICLE, were effective to prevent head contact with the roof structures during times when rolling vehicles were inverted, when in fact said Defendants and each of them had used and implemented standing pelvis dummies which did not engage or place any genuine "loads" upon the restraint systems involved to begin with, for the purposes of falsely leading the public and governmental regulators into believing that existing restraint systems were adequate to mil1gate roof crushing rollover injuries, when in fact Defendants knew that this was false.
    • Centrifugal forces extant in the genuinely prototypical rollover crush accident were insignificant, unreasonable angles and vectors of impact forces were appropriate and proper when said Defendants and each of them in fact knew that such angles and vectors were not representative of real accident conditions and understated and/or outright misrepresented real accident conditions so as to falsely lead the public and government regulators to conclude the roof structures were of adequate strength, when said Defendants knew this to be false, that drop testing procedures were injury irrelevant (as they were knowingly performed by said Defendants from unrealistic heights), and that rolling "spit" test procedures proved that members of the public would sustain injury regardless of roof component strength, when in fact Defendants knew at that time that all such conclusions were false.
  72. Defendants and each of them, individually and concert with other automakers, therein further knowingly falsified their test results, ignored and suppressed data, and further falsely mis-characterized adverse test data which said Defendants knew at the time tended to prove that their trucks, vans, Pick-up's, and SUV's, II1cluding the SUBJECT VEHICLE, were defective and unsafe real world rollover accidents, and would and did expose members of the public and users of said Defendants' trucks, SUV's and vans to death and serious head and spinal injuries in the MALIBU 2 TEST RESULTS due to the insufficient strength of the A-Pillars/Windshield headers and roof rails in such vehicles.
  73. At all times mentioned herein, Defendants and each of them were aware that use of complete sections, thicker steel and stronger materialsA-Pillars/Windshield headers and roof rails was at all times mechanically feasible, posed no adverse consequences to consumers or to said Defendants' trucks, vans and SUV's, and were only marginally more expensive to implement, which use of complete sections, thicker steel and stronger materials in A-Pillars/Windshield headers and roof rails would withstand rollover Impact forces of in excess of 8,000 Newtons and thus would prevent death and serious injuries in most actual rollover accident cases, including that accident which IS the subject of this action.

  74. At all times herein mentioned, on information and belief; Defendants and each of them knew and were aware that members of the public were suffering from death and serious injuries in rollover accidents which involved roof crushing forces in said Defendants' trucks, vans, and SUV's, including the SUBJECT VEHICLE, as a result of said Defendants' failure to use complete sections, thicker steel and stronger materials in A-Pillars/Windshield headers and roof rails of said Defendants' vehicles.
  75. At all times mentioned herein, despite the fact that Defendants and each of them wereaware that use of complete sections, thicker steel and stronger matelia1s in A-Pillars/Windshield headers and roof rails was at all times mechanically feasible, posed no adverse consequences to consumers or to said Defendants' trucks, vans and SUV's, including the SUBJECT VEHICLE, were only marginally more expensive to Implement, and would have prevented deaths and serious injuries in most actual rollover accident cases, including that accident which is the subject of this action, said Defendants intentionally refused to use complete sections, thicker steel and stronger materials in A- Pillars/Windshield headers and roof rails of their trucks, vans and SUV's, including the SUBJECT VEHICLE: (I) to avoid the increased expense of using such improvements in their vehicles (including 20 costs of redesign, more extensive materials, retooling, re-certification expenditures and other costs of implementation), so as to preserve and widen said Defendants' profit margin on the sales of such vehicles; (2) to avoid disclosure during re-certification and retooling processes of the fact that said Defendants knew their previously-manufactured trucks' vans' and SUV's, including the SUBJECTVEHICLE's A-Pillars/Windshield headers and roof rails were of insufficient strength to withstand even modest actual rollover accidents without the risks of serious injuries and death to users of such 26 vehicles, which would greatly increase said Defendants' legal exposure in cases brought arising from 27 rollovers of production vehicles already in use by the public; and (3) to avoid taking action which would result in disclosures leading to an expensive recall campaign by the National HighwayTransportation Safety Administration.
  76. Plaintiffs are informed and believe and further thereon allege that, from 1987 onward, Defendants conducted studies and analyses to determine the extent to which the use of laminated glass windshields could be used in the stead and in place of stronger metals resistant to foreseeable roofcrush for the purposes of meeting other adequate and insufficient FMVSS 216 testing not replicating real world roof crush events, all for the purposes of saving the Defendants money and advancing theirpecuniary interests by reducing costs of production and increasing profits, despite knowing at all times relevant that during a real world roof crush event, the windshield will universally and always fracture instantaneously 10s1Og its structural strength and thus instantaneously depriving occupants of the SUBJECT VEHICLE of any genuine sufficient protection from catastrophic and/or fatal a result of the roof crush forces. At the same time Defendants thus were reducing the strength of the SUBJECT VEHICLE's roof to be able to withstand foreseeable and statistically inevitable real world roof crush events, in order to effectuate cost savings and increase profits to the detriment of the safety of the public using such vehicles, thus exhibiting a willful and conscious disregard of such publics safety, as alleged herein.
  77. Defendants and each of them advertised and marketed their vehicles as safe, rugged and "Ford Tough," which in fact Defendants knew at all times they were making such representations that their SUBJECT VEHICLE and other similar trucks, vans and SUV's would be likely to leave occupants of the vehicle totally unprotected from catastrophic injuries and death from roof crushing forces during statistically inevitable and foreseeable rollover incidents.
  78. Defendants' Knowledge of and Misrepresentations Regarding the Defective Glass and Glaring Deficiencies in Their Vehicles' Side and Rear Windows

  79. Defendants also acted with a callous disregard for the safety of the motoring public with respect to their vehicles' defective glass and glazing in the side and rear windows of their vehicles. Defendants also ignored and suppressed data regarding the deaths and serious injuries due to partial and total ejection of occupants through the side and rear windows of vehicles during rollover, rear end and side impact accidents due to the use of defective glass and glazingthose windows.
  80. Since 1970, defendants and each of them have been aware that use of tempered side and rear window glass was contributing to serious occupant ejection problems in side impact, rear end, and rollover accidents. In 1970, Roger P. Daniel, a Ford research engineer, published the Society of Automotive Engineers (SAE) Technical Paper 700423, which defendants and each of them received and/or participated in, in which Mr. Daniel reported that "the increasing use of unsupported tempered side glass appears to have adversely influenced the frequency of partial and complete occupant ejection through the side glass areas." Mr. Daniel recommended that in order to better retain vehicle occupants completely within the passenger compartment during accidents, the use of a substantial metal framework along with the use of laminated glass, similar to that used in current American windshields, would achieve maximum durability and minimum laceration potential. In spite of the clear explanation of the problem and a feasible solution that would save lives, defendants and each of them ignored such data and have failed to take action to use appropriate materials to prevent vehicle occupant ejection by using laminated glass or ejection resistant glazing.
  81. In addition, in 1984, the U.S. Government, through the National Highway Traffic Safety Administration (NHTSA) published SAE Technical Paper 840390; and in 1985, SAE Technical Paper 851203, and in 1989, SAE Technical Paper 890218, which set forth the analysis and testing by NHTSA Researchers Carl C. Clark and Peter Sursi, of alternative glazing opportunities to reduce or eliminate ejection and resulting injuries and fatalities. In the 1989 report, NHTSA advised defendants that ejection was involved in about 25% of all passenger car fatalities and 40% of light truck and van fatalities and that ejection through glass areas, in a specific passenger car study, accounted for about 60% of all ejections. NHTSA reported their own dynamic roll over tests demonstrating that either laminated windshield-type glass or other glass-plastic glazing could eliminate most ejections through glass openings. Defendants and each of them received and/or participated in, these NHTSA studies and SAE Technical Papers and in spite of this knowledge and awareness, defendants ignored and suppressed data, and further falsely mis-characterized adverse test data which the Defendants knew at the time tended to prove that the glass being used in the rear and side windows of their vehicles was defective and unsafe in real world rollover, rear impact, and/or side skid accidents, and would and did expose members of the public and users of said Defendants' vehicles to death and serious head and spinal injuries due to the insufficient, defective and unsafe glass and glazing being used in such vehicles.
  82. Moreover, after defendants, in concert with other auto manufacturers, provided no constructive response to the NHTSA data on elimination of most ejections through glass openings, NHTSA convened a public meeting in Washington, D.C., in 1996, during which NHTSA presented detailed test data, cost analysis and manufacturing lead time data on several alternative glazing proposals, estimating the reduction in fatalities and incapacitating injuries that would result from improved glazing. For rollover accident fatalities, an 86% reduction was projected for the driver and a 90% reduction for passengers. For incapacitating 1l1juries in rollovers, NHTSA projected a 68% reduction tor drivers and a 63% reduction for passengers. Defendants' representatives were present at this meeting and simply responded that all drivers and passengers do not always use seat belts, flatly ignoring those statistics that evidence the drivers and passengers who do wear seat belts are injured or killed due to the defective restraint systems that are defective and fail, as set forth herein. In fact, many partially ejected and fatally or seriously injured occupants, such as the decedents, are in tact belted, yet those restraint systems fail.
  83. In August 1999, NHTSA published a report entitled, Ejection Mitigation UsingAdvanced GlazlI1g: Status Report I!, which estimates that laminated glass or other advanced glazing systems would reduce annual fatalities by 500 to 1300 each year. Defendants, again, received and/or participated in this report, yet the only reason defendants have not used inherently safer laminated glass or other alternative glazing is and was to "ave money in an environment where they knew, through various questionable inter-manufacturer contacts, that their competition would similarly save money rather than use readily available technology to save lives and prevent injuries.
  84. Despite the longstanding recommendations of knowledgeable and caning automotive engineers, defendants chose to ignore the inherent safety problem of occupant ejection, and took no action to prevent such debilitating Injuries and deaths, because of concern about cost penalties. Defendants' decision to save money at the expense of innocent human life and pain and suffering constitutes, despicable conduct and callous disregard for the safety of the motoring public, including the decedents and plaintiffs herein. Defendants' failure to act IS enhanced by the similar acts of their competitors, and is shameful and shocking that such a large, powerful and Influential industry has foryears conspired to resist obvious major opportunities to improve motor vehicle safety by improving the glass and gluing in automobiles, all to advance their own pecuniary interest.
  85. Defendants' Knowledge of and Misrepresentations Regarding the Defective Seat Systems

  86. Defendant has also acted with a callous disregard for the safety of the motoring public with respect to their vehicles' weak and defective seat systems and their components, including seat backs, recliner mechanisms, and seat tracks, in that defendants ignored their own engineers by rejecting inexpensive safe alternative designs that have been available for decades and actually misrepresented the benefits in mitigating potential injures of the safe alternative designs, without any data or engineering rationale and in contradiction of their own internal testing showing just theopposite, all to advance their own pecuniary interests.
  87. Since the inception of Federal Motor Vehicle Safety Standard (FMVSS) 30 I [fuel tank integrity rear impact test], defendants have known that in rear impacts of 30 miles per hour, each and every one of defendants' seat backs, in each and every one of defendants' vehicles failed, and catapulted backwards, collapsing flat down into the rear seat cushions, causing major spinal, head and neck injuries. Just as the seat belt system prevents an occupant from moving forward in a frontal collision, the seat should perform the same function in a rear impact collision, to prevent the occupant from excessive motion relative to the vehicle interior, and to prevent the occupant from striking the interior of the vehicle or from being ejected. Since the late 1960s and early 1970s, Defendants have known that the seats and seat back;, of their vehicles were of insufficient strength to withstand rear end collisions of 30 miles per hour (mph) or greater. In 1966-67, the Auto Mobile Manufacturer's Association, Inc. (AMA), whose members included defendant, FORD MOTOR CORPORATION, General Motors Corporation, American Motors Corporation, Mack Trucks, Kaiser Jeep Corporation, International Harvester and Chrysler, strongly objected to the National Traffic Safety Administration (the precursor to the National Highway Traffic Safety Administration) that any standard be imposed that would increase the design requirements to increase the load or stiffness requirements of the federal standard, even though the AMA knew from the research conducted by Its own engineers, that the then existing standard of FMVSS207 was insufficient.
  88. In 1970, one of defendant, FORD MOTOR COMPANY'S own engineers concluded that "seat back strength is quite low in most American Vehicles." In 1968, a General Motors Corporation engineer, Thomas Ruster, prepared a memorandum in which he advised General Motors Corporation, along with the members of the AMA, including defendant, FORD MOTOR COMPANY, that a potential hazard exists in rear end collisions of 3O mph or greater, as the occupant's head is being forced into the rear seat cushion, after the occupant has slid off of the front seat, with possible damage to the spine. In addition, Mr. Ruster advised defendants that loss of control of the vehicle IS a further risk since while the occupant is in the horizontal position, she can no longer reach the vehicle controls, causing a second and otherwise avoidable accident. Additionally, while the occupant is in the horizontal position, there is a total failure of the restraint system since the shoulder harness is attached to the vehicle's frame and cannot function with the seat in the horizontal position.
  89. Decades ago automotive design safety experts recognized and reported to the membersof the AMA, including the defendant, FORD MOTOR COMPANY, that seats and their components suffer a variety of failure modes in rear impact collisions including breakage of seat adjusters, breakage of folding seat back locks and supports or separation of the anchorage from the vehicle. Research conducted by defendants' own engineers demonstrated that when rear-impact collisions deflect seat backs rearward, occupants arc allowed to ramp up over the seat back and head restraints, exposing them to neck injuries, and in rollover conditions, such as the collision which IS the subject matter of this lawsuit, there can be excessive passenger flailing and impacting about the vehicle interior, even when the occupants are wearing seat belts, due to the seat back and seats being readily displaceable. Researchers concluded through the performance of full scale collision experiments and crash testing that the magnitude of accelerations developed in severe collisions can produce motions that result in rearward deflection of the seat back, ejecting the unrestrained occupant out of the seat with possible serious impact with the rear window area of the vehicle. Moreover, if seat back failure occurs, the use of the occupant's restrain system may not prevent the occupant from being ejected from the vehicle. Safety experts concluded in 1976 that no seats provided adequate protection under more than moderate collision induced forces. The National Highway Traffic Safety Administration (NHTSA) has estimated that in 1990 alone, 1100 people died and 1600 more sustained serious injuries because their seats collapsed rearward in rear impact collisions.
  90. Recommendations were made to defendants, based on accident data, full-scale crash testing, and research, to enhance the strength of the seats and seat backs by strengthening the seats and seat backs at the three locations where they fail: the connection between the seat back and cushion frame, the seat track connection where the seat slides forward and back, and the point at which the seat fastens to the floor. Defendants could have used wider and stronger metal for the seat cushion frames and could have strengthened the point at which the seat back connects to the cushion frame, the point at which the seat slides back and forth, and the point at which the seat fastens to the floor. A minimal amount of strategically applied metal, along with proper seat padding and contours, would eliminate the unnecessary hazards that often result in fatalities or serious injuries.
  91. In 1969, a FORD MOTOR COMPANY study concluded that by 1973, improvements could be made to front seats in several vehicles in order to withstand 30 mph barrier impacts, and thepaper concluded that modifications which included strengthened tracks, attachments and latches, would cost approximately fitly cents per vehicle.
  92. In 1968, automotive safety experts demonstrated to defendants, through crash testing, that a 28 inch high rigid seat back which controlled deflection to 10 degrees would protect most passengers against sustaining any injury in rear impact collisions up to 55 mph. In 1974, defendant FORD MOTOR COMPANY developed and tested a stiffer seat with a high and rigid head restraint, which withstood a moving barrier impact of 48mph, allowing only 20 degrees rearward deflection.
  93. Not only did defendants ignore the recommendations of its own engineers, defendantmis-characterized and misrepresented the results of Its own testing and argued against strengthening its seats to NHTSA in 1990. Despite an absence of any data or engineering rationale supporting their argument, and despite defendants' own internal testing that showed just the opposite, defendant, FORD MOTOR COMPANY proclaimed:
  94. Ford believes that the energy absorption that results from seat back deformation during rear impacts is generally beneficial in mitigating potential injuries…Current Ford seat design practices to optimize seat design for front and rear impact, assuming that all vehicle occupants are restrained…Some seat back movement is considered desirable to reduce risks of injuries to restrained rear occupants. In addition, some seat deformation is believed to reduce injuries to restrained front seat occupants in rear impacts…We believe that a seat back designed to withstand a static moment of 56,000 inches per pound would be overly stiff for any conceivable accident situation…

    This proclamation is not only false, it is contradicted by defendant's own past studies and current research. Even defendant's owners' manuals for its vehicles warn: "Warning: To minimize the risk of a personal injury in the event of a collision or a sudden stop, both the driver's and passenger's reclining seat backs must always be in a fairly upright position while the vehicle is motion. The protection provided by the seat and shoulder belts is significantly reduced when the seat back is not in the upright position."

  95. Despite the recommendations of defendants' own automotive engineers, and in spite of the known risks of death, serious and fatal spinal injuries, and occupant ejection, defendants chose to ignore the inherent safety problem, and took no action to prevent such debilitating injuries and deaths, because of concern about cost penalties. Defendants' decision to save money at the expense of innocent human life and pain and suffering constitutes, despicable conduct and callous disregard for the safety of the motoring public, including the plaintiffs and the decedents. Defendants have failed to act for years and have conspired to resist obvious major opportunities to improve motor vehicle safety by improving the seats and seat backs of their vehicles, all to advance their own pecuniary interests. Had defendants taken the recommendations of their own engineers, the plaintiffs and the decedents would not have sustained the serious and fatal injuries which were suffered during the accident that is the subject matter of this lawsuit, and the decedents would not have been killed or even seriously injured.
  96. The actions of said Defendants and each of them, as herein described, were thus undertaken with a willful and conscious disregard for the rights and safety of consumers and users of said Defendants' vehicles, including the SUBJECT VEHICLE, in order to advance the pecuniary gains of the Defendants and each of them, and were despicable because such aforesaid conduct would and does kill people, including but not limited to Plaintiffs' decedents during the course of the accident which is the subject of this lawsuit.
  97. Plaintiffs further allege that the conduct of the defendants was undertaken With the result that the SUBJECT VEHICLE's ultimate defects in its design and production were fully intended by the Defendants to reside therein. Plaintiffs are informed and believe that the decisions made by the defendants and each of them to design and manufacture the SUBJECT VEHICLE with its defective design, defective tires, lateral instability, defective restraint system components, defective roof, all in the defective and dangerous manner as alleged herein, were made by corporate management of the defendants and each of them, by the product of corporate policy, in that such major and strategic design and manufacturing decisions, by virtue of the corporate structure of the defendants and each of them, could be made only at the level of corporate management, as the product of corporate policy, given the substantial capitalization requirements and risks associated with such high level design and manufacturing decisions, across an entire vehicle platform line for the SUBJECT VEHICLE, such that they were and are the product of the entire corporate management and corporate policy of the defendants with respect to the conscious, willful and disregard of public safety for defendants' peculiarity gain regarding the design, manufacture, production, marketing and sale of the SUBJECT VEHICLE.
  98. As a direct and legal result of the aforementioned conduct of Defendants and each of them, an award of exemplary and punitive damages against Defendants, FORD MOTOR COMPANY, and DOES [through 5, and each of them is proper and appropriate to punish said Defendants and to deter such conduct in the future.
  99. ADDITIONAL ALLEGATIONS SUPPORTING EXEMPLARY DAMAGES PRAYER BY Plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS, Individually, and REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, ONLY as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; and ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, ONLY as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased, ONLY AGAINST COOPER TIRE AND RUBBER COMPANY and DOES 5 through 10, Inclusive

  100. Plaintiffs are further informed and believe and thereon allege that Defendants, COOPER TIRE AND RUBBER COMPANY and DOES 5 through 10, and each of them intentionally engaged in conduct which, with respect to the SUBJECT DEFECTS, Plaintiffs allege was a legal cause of their injuries, [ass, damages, and their decedents' fatal injuries and harm, exposed Plaintiffs and Plaintiffs' decedents and other users of the SUBJECT VEHICLE to serious potential danger known to the Defendants in order to advance the Defendants' pecuniary interests and thus acted with a conscious disregard for the safety of the Plaintiffs, Plaintiffs' decedents, and other users of theSUBJECT VEHICLE, warranting an award of exemplary damages against Defendants, COOPER TIRE AND RUBBER COMPANY and DOES 5 through 10, pursuant to California Civil Code §3294, and the rule enunciated in Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal. AppJd 374, 381-382 and PPG Industries, Inc v. Transamerica Ins. Co. (1996) 49 Cal. Appath 1120. The facts supporting the Defendants' intentional conduct which exposed plaintiffs, plaintiffs' decedents and other users of the SUBJECT VEHICLE to serious potential danger known to the Defendants in order to advance the Defendants' pecuniary interests, are on information and belief, as follows.
  101. In or about the early 1990s, defendants purposefully began a cost cutting campaign so that they could manufacture tires for less money and earn a wider profit margin. Defendants began to manufacture tires with less rubber in between the steel belts and to use rubber that was less strong, by altering the chemical composition of the rubber and by using other such cost cutting measures.
  102. A critical design feature used by tire manufacturers to suppress the initiation and growth of belt edge cracks is the "belt wedge," a strip of rubber located between the two belts near the belt edges on each side of the tire. In order to cut costs and save money, defendants narrowed the belt wedge thickness, or gauge, such that it did not adequately resist the initiation and propagation of belt edge cracks between the steel belts.
  103. Another important feature of radial tires related to the prevention of bait-leaving-belt separations is the gauge of the rubber between the two steel belts or "inter-belt gauge."An inadequate inter-belt gauge reduces the tire's resistance to crack growth and its belt adhesion capabilities. Defendants purposefully narrowed the inter-belt gauge of its tires to save costs. This narrow inter-belt gauge is responsible for the relatively low peel adhesion properties of the tires. It was not until August, 1999, that defendants finally became concerned about the adequacy of the inter-belt gauge and changed the inter-belt gauge specification back to the original dimension.
  104. The rubber in between the two steel belts is what absorbs the centrifugal forces while a vehicle is traveling at highway speeds. By manufacturing tires with less rubber, defendants were aware that there would be less rubber to absorb the energy and the rubber could not absorb the stresses of normal highway travel and would tear apart as the belt separated, causing crashes, serious injuries and deaths.
  105. Such cost cutting measures were mandated as a company wide policy, in all plants, on all products, on all models of tires. In the early 1990s, defendants initiated a company wide policy and required all plants to cut costs by seven and a half percent per year. The quality of the tires decreased and tread separation claims increased dramatically. By 1998, defendants' own claims databases indicated that tread separation claims had been associated with numerous crashes which led to 74 deaths and over 350 injuries. Tread separation claims reported to the Office of Defects Investigation, U.S. Department of Transportation, National Highway Traffic Safety Administration, reportedly led to 192 deaths and over 500 injuries. It was not until May 1998, that defendants began to increase the dimensions and improve the material of the belt wedge, which modifications to the wedge would inhibit the initiation and propagation of the belt edge cracks that lead to tread separations. Defendants' decision to save money at the expense of innocent human life and pain and suffering constitutes despicable conduct and callous disregard for the safety of the motoring public, including the plaintiffs and the decedents herein.
  106. In addition to increasing the dimensions and improving the material of the belt wedge, defendants have known for years that tires with an inexpensive nylon layer (or cap ply) would be as much as live times less Likely to fail than those without such nylon caps. Defendants' internal company correspondence shows that the company knew that use of a nylon cap ply would reduce the type of tread separation which led to the crash in this case and the decedents' eventual deaths. In fact, such internal documents indicate that use of the nylon cap ply would reduce tread separation by a factor of 4-5, meaning it would eliminate 80% of the tread separations. The cost would be less than $1.50
  107. Internal correspondence and memorandum indicate that the company compared tires with and without the protective nylon cap ply and found that the rate of tread separation for tires with a protective nylon cap plies was three to five times lower. Additional correspondence and memorandum indicate that with a 90-cent nylon cap ply, "tire and tread belt edge separations were reduced by more than 50 percent."
  108. Moreover, it IS well known in the tire industry and the benefits of using cap plies are well documented in the patent literature, of which defendants were and are well aware. There are many patents covering a variety of cap ply constructions, including patents held by defendants and which patents all agree on the beneficial effects of including cap plies in the construction of radial ply tires:
  109. In general with a pneumatic radial tire, belt end separations (separations of plies at belt ends) often occur when large shearing forces act between plies at belt ends due to enlarging diameter when tilling with inner pressure and deformation in contact road and rolling under loaded condition. In order to prevent such a separation, it has been proposed to arrange a cap having a strong hoop effect radially outwardly of a belt layer to cover the entire width of the belt layer. Such a cap has cords embedded therein and extending substantially in parallel with an equatorial plane of the tire.
  110. Despite defendants' knowledge of the known fact that use of the nylon cap ply would significantly reduce tread separations and save lives and avoid injuries, defendants' Chief Executive Officers revealed in sworn testimony in other cases that the company could have acted earlier on claims data that by 1997 clearly showed tread separation problems with its tires. Defendants' officers also revealed that the company considered skipping the nylon cap ply to reduce costs. One memo showed that eliminating the nylon cap ply could save the company's plant some $225,000 or $.90 pertire.
  111. Defendants have failed to act for years and have conspired to resist obvious major opportunities to improve motor vehicle safety by improving their tires for less than $1.50 per tire, all to advance their own pecuniary interests. Despite the longstanding recommendations of knowledgeable and caring tire engineers, defendants chose to ignore the inherent safety problem of tread separation, and took no action to prevent such debilitating injuries and deaths, because of concern about cost penalties.
  112. Defendants' decision to save money at the expense of innocent human life and pain and suffering constitutes, despicable conduct and callous disregard tor the safety of the motoring public, including the plaintiffs and decedents herein.

  113. The actions of said Defendants and each of them, as herein described, were thus undertaken with a willful and conscious disregard for the rights and safety of consumers and users of said Defendants' vehicle tires, including the tires on the SUBJECT VEHICLE, in order to advance the pecuniary gains of the Defendants and each of them, and were despicable because such aforesaid conduct would and does kill people, including but not limited to Plaintiffs' decedents during the course of the accident which is the subject matter of this lawsuit.
  114. Plaintiffs are further informed and believe and allege that the decisions made by the defendants and each of them to design and manufacture the tires of the SUBJECT VEHICLE and its components in the defective and dangerous condition, as alleged herein, were made by corporate management of the defendants and each of them, by the product of corporate policy in that such major and strategic design and manufacturing decisions could, by virtue of the corporate structure of the defendants and each of them, be made only at the level of corporate management as the product of corporate policy, given the substantial capitalization requirements and risks associated with such high level design and manufacturing decisions across the entire company, world wide. Plaintiffs further allege that the conduct of the defendants was undertaken with the result that the tires of the SUBJECT VEHICLE, with Its ultimate defects in Its design, manufacture and production were fully intended by the Defendants to reside therein such that they were and are the product of the entire corporate management and corporate policy of the Defendants with respect to the conscious willful and disregard of public safety for defendants' pecuniary gain with regard to the design, manufacture, production and marketing of the tires of the SUBJECT VEHICLE.
  115. As a direct and legal result of the aforementioned conduct of Defendants and each of them, an award of exemplary and punitive damages against Defendants, COOPER TIRE AND RUBBER COMPANY, and DOES 5 through 10, pursuant to California Civil Code §3294 and the rule enunciated in Ramo v. Ford Molar Company (2002) 99 Cal. App. 4th 11125, and Ford Molar Company v. Home Insurance Co. (1981) 116 Cal. App. 3d 374, 381-382, is proper and appropriate to punish said Defendants and to deter such conduct in the future.
  116. SECOND CAUSE OF ACTION - NEGLIGENT PRODUCT LIABILITY (Against Defendants, FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY, LEADER AUTO SALES; POWER TIRES and DOES 1 through 100, Inclusive)

  117. Plaintiffs incorporate, repeat and re-allege each and every allegation in paragraphs 1 through 105 above, and incorporate the same by reference as though set forth in detail.
  118. At all times mentioned, Defendants and each of them, had a duty to properly manufacture, design, assemble, package, test, fabricate, analyze, inspect, merchandise, market, distribute, label, advertise, promote, sell, supply, lease, rent, warn, select, inspect, service, maintain, and repair said product and each of its component parts.
  119. At all times mentioned, Defendants and each of them and DOES 1 through 100 knew, or in the exercise of reasonable care should have known that the SUBJECT VEHICLE and each of its component parts were not properly manufactured, designed, assembled, packaged, tested, fabricated, analyzed, Inspected, merchandised, marketed, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, serviced, maintained, selected and provided inadequatewarnings for the use and purpose for which it was intended in that it was likely to injure the person(s) who used said product, each of its component parts and/or after market parts and/or installation guides.
  120. Defendants, and each of them, so negligently and carelessly, manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, modified, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, serviced, maintained, selected and provided inadequate warnings and provided the SUBJECT VEHICLE and each of its component parts so that It was a defective and dangerous product, unsafe for the respective use and purpose for which it was intended when used and driven as recommended or for reasonably foreseeable misuse by members of the public, including plaintiffs and plaintiffs' decedents. In particular, said SUBJECT VEHICLE and each of its component parts during a reasonably foreseeable maneuver was unstable, dangerous and defective in that the right rear tire would suffer tread separation, and come apart, causing the driver to lose control of the vehicle, leading to the roll of the vehicle and significant roof crush, failure of the restraint system and failure of the glass and glazed, all causing injury and death to its occupants, as alleged herein. In addition, the SUBJECT VEHICLE and each of its component parts during a reasonably foreseeable driving maneuver made with due carewas unstable and dangerous with defective seats and seat backs, defective restraint systems, and defective glass and glazing, all causing injury and death to its occupants, the plaintiffs and decedents herein.
  121. As a direct and legal result of the negligence, carelessness, and unlawful conduct of the: Defendants, and each of them, and the defects Inherent in the vehicle, Defendants legally caused the serious personal injuries to plaintiffs and death of plaintiffs' decedents, in tum legally resulting in Plaintiffs' damages as set forth herein.
  122. THIRD CAUSE OF ACTION (Negligent Maintenance and Repair as Against Defendants POWER TIRES and DOES 10 through 15, inclusive)

  123. Plaintiffs refer to and incorporate herein each and every allegation of Paragraphs I through 110, inclusive, above as though fully set forth herein.
  124. At all times herein mentioned, Defendant, POWER TIRES and DOES I through 15, inclusive, were under a duty to use due care in their service, repair, inspection and maintenance of the SUBJECT VEHICLE and its tires.
  125. Only one month prior to the automobile crash which is the subject matter of this lawsuit, on or about January 9, 2006, Defendants, POWER TIRES and DOES 10 through 15, inclusive, so negligently, carelessly, willfully, wantonly, recklessly, and tortuously sold the decedent 4 wildcat tires, and serviced, repaired, inspected and maintained the SUBJECT VEHICLE and specifically, negligently mounted and rotated the tires so as to have caused and/or contributed to the loss of tread on the right rear tire, causing the tire to come apart.
  126. Observation of the tire of which the tread separated, reveals a smooth, shiny, polished, residual skin near the belt head, indicating that the two belts had been in a state of separation for a significant length of time before the crash. Therefore, there would have been extremal indications of the process of tread separation at the time that defendants sold, mounted, rotated, and/or inspected the tire. Examples include significant bulges and localized rapid tread wear that would have indicated that the tire was going to fail.
  127. Had defendant, POWER TIRES exercised due care in its service, repair, inspection and maintenance of the vehicle, and adequately inspected the subject tires when it mounted the tires, it would have known and should have known that the right rear tire had lost its tread, and/or was losing its tread, and would come apart, causing the loss of control over the SUBJECT VEHICLE, causing and/or contributing to the crash that is the subject matter of this lawsuit, as a direct and legal result of which Plaintiffs suffered severe personal injuries and Plaintiffs' decedents in tum suffered the severe personal physical and fatal injuries, and legally-resulting plaintiffs' damages therefrom as alleged herein.
  128. As a direct and legal result of the negligence, carelessness, and unlawful conduct of the Defendants, and each of them, and the defects inherent in the vehicle, Defendants legally caused the serious personal injures to plaintiffs and the death of plaintiffs' decedents, in turn Illegally resulting in Plaintiffs' damages as set forth herein.
  129. FOURTH CAUSE OF ACTION NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Against All Defendants by Plaintiff, JESUS MANUEL IBARRA CAMPOS, only)

  130. Plaintiffs incorporate by reference as though fully set forth herein, paragraphs I through 116 above.
  131. Plaintif JESUS MANUEL IBARRA CAMPOS, also an occupant of the SUBJECT VEHICLE during the crash, suffered serious emotional distress as a result of perceiving the serious injuries and danger to his sister, GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased.
  132. As described above, defendants negligently caused the serious injuries and damages to plaintiffs by reason of the defects inherent in the SUBJECT VEHICLE, which were caused by reason of defendants' breach of their duties of care to properly manufacture, design, assemble, package, test, fabricate, analyze, inspect, merchandise, market, distribute, label, advertise, promote, sell, supply, lease, rent, warn, select, inspect, service and repair the SUBJECT VEHICLE and each of its component parts and/or after market parts and/or installation guides.
  133. At all times mentioned, defendants and each of them knew, or in the exercise of reasonable care should have known that said SUBJECT VEHICLE and each of its components parts and/or after market parts and/or installation guides was not properly manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, serviced, maintained, repaired, selected and provided inadequate warnings for the use and purpose for which it was intended in that it was likely to injure the persons who used said product, each of its component parts and/or after market pmis and/or installation guides.
  134. Defendants, and each of them, so negligently and carelessly, manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, modified, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, serviced, maintained, repaired, selected and provided inadequate warnings and provided said SUBJECT VEHICLE and each of its component parts and/or after market parts and/or installation guides so that the same was a defective and dangerous product, unsafe for the respective use and purpose for which it was intended when used and driven as recommended or for reasonably foreseeable misuse by said defendants and each of them. In partlcu1ar, said SUBJECT VEHICLE and each of its component parts and/or after market parts and/or installation guides during a reasonably foreseeable maneuver was unstable, dangerous and would rollover with roof crushing instability causing injury and death to its occupants,as alleged above. In addition, the glass and glazing of the rear and side windows of the SUBJECT VEHICLE and each of its component parts and/or after market parts and/or installation guides during a reasonably foreseeable driving maneuver made with due care were defective and dangerous in that the glass shattered, creating openings or portals causing the plaintiffs and/or decedents to be partially and / or totally ejected from the vehicle, suffering serious personal and laceration injuries and death.
  135. Plaintiff JESUS MANUEL IBARRA CAMPOS was present in the vehicle while it was rolling and was aware that his close family member, his sister, was being seriously injured when she was partially or totally ejected from the vehicle, cut and lacerated by the broken glass, and her body smashed when the roof crushed inward. Plaintiff, JESUS MANUEL IBARRA CAMPOS had to watch his own sister die. As a direct and legal result of the defendants' negligence, carelessness, and unlawful conduct and the defects inherent in the SUBJECT VEHICLE, the Plaintiff, JESUS MANUEL IBARRA CAMPOS, suffered serious emotional distress, including but not limited to suffering, anguish, fright, horror, nervousness, grief, anxiety, worry shock, humiliation, and shame,such that an ordinary, reasonable person would be unable to cope with the serious emotional distress. WHEREFORE, plaintiffs pray for judgment against defendants and each of them, as follows.
    1. For special and economic damages including, past and future medical expenses, past and future loss of earnings and loss of earning capacity, loss of future economic support, and funeral and burial expenses, according to proof at trial;
    2. For general damages including damages for pain suffering and loss of consortium, loss of love, companionship, comfort, affection, society, solace and moral support;
    3. For emotional distress damages;
    4. For prejudgment interest, as determined by and accrued according to applicable statutes;
    5. For costs of suit incurred herein;
    6. For any other and further relief the Court deems just and proper; and
    7. Exemplary and punitive damages, by plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS, Individually; REGINO IBARRA MORIN and GUADALUPE CAMPOS DE MORIN, ONLY as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; and ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, ONLY as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased, AND ONLY AGAINST FORD MOTOR COMPANY, COOPER TIRE AND RUBBER COMPANY and DOES 1 through 10, Inclusive

DATED: 10-10-2005

Bisnar Chase Personal Injury Attorneys

Attorneys Plaintiff, JOSE MAZON MARTINEZ; JESUS MANUEL.IBARRA CAMPOS; REGINO IBARRA MORIN and GUADAUPE CAMPOS DE MORIN, Individually and as Successors in Interest to the Estate of GEORGINA ISABEL IBARRA CAMPOS DE ESPARZA, deceased; ANDRES ESPARZA SILVA and CARLOTA HERNANDEZ DE ESPARZA, Individually and as Successors in Interest to the Estate of ANDRES ESPARZA HERNANDEZ, deceased.

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

JOSE MAZON MARTINEZ et al.,
Plaintiffs and Appellants,
v.
FORD MOTOR COMPANY et al.,
Defendants and Respondents.

B214955
(Los Angeles County Super. Ct.
Nos. JCCP-4292 / GIC873813)

APPEAL from a judgment of the Superior Court of Los Angeles County. Anthony J. Mohr, Judge. Reversed and remanded. Bisnar Chase Personal Injury Attorneys, Brian D. Chase and John V. Bell, for Plaintiffs and Appellants. Yoka & Smith, Walter M. Yoka, David T. McCann and Elizabeth A. Kurtz, for Defendant and Respondent Cooper Tire & Rubber Company. Snell & Wilmer, Robert J. Gibson, Richard A. Derevan, Brendan M. Ford, Jessica Charles, and Jill P. McDonell, for Defendant and Respondent Ford Motor Company.

Two survivors and the heirs and estates of two decedents from a single car crash in Mexico of a Ford Explorer that had been purchased in San Diego County appeal from the judgment dismissing their complaint for forum non conveniens. We reverse and remand for further proceedings.

FACTS AND PROCEEDINGS

Appellant Jose Mazon Martinez was driving a Ford Explorer in which appellant Jesus Manuel Ibarra Campos and decedent Andres Esparza Hernandez and his wife, decedent Georgina Isabel Ibarra Campos de Esparza, were passengers. In their complaint below, appellants alleged:

On or about February 9, 2006, at approximately 3:00 P.M., the decedents and the plaintiffs, JOSE MAZON MARTINEZ and JESUS MANUEL IBARRA CAMPOS were traveling in the SUBJECT VEHICLE, in Mexico, towards Churintizio, Michoacan, on the Mexico City-Nogales Highway, in the State of Michoacan.

Their complaint further alleged that the tread on the Explorer's defectively designed and manufactured right rear tire separated from the wheel, causing driver Martinez to lose control of the Explorer [1]. According to the complaint, defects in the Explorer caused it to careen off the road and roll over, severely injuring driver Martinez and passenger Jesus Manuel Ibarra Campos and killing husband and wife Andres Esparza Hernandez and Georgina Isabel Ibarra Campos de Esparza. Survivors Martinez and Campos and the parents of the dead passengers, appellants Regino Ibarra Morin and Guadalupe Campos de Morin for Georgina Isabel Ibarra Campos de Esparza, and appellants Andres Esparza Silva and Carlota Hernandez de Esperza for Andres Esparza Hernandez, filed a complaint in October 2006 in San Diego Superior Court. They alleged causes of action for strict and negligent product liability. negligent maintenance and repair, and negligent infliction of emotional distress. They named as defendants the Explorer's manufacturer, respondent Ford Motor Company; the manufacturer of the right rear tire, respondent Cooper Tire and Rubber Company; the San Diego auto dealership from which the Explorer was purchased, Leader Auto Sales; and, the San Diego tire company that sold the defective tire, Power Tires [2]. Appellants attached as exhibits to their complaint certified Spanish-to-English translations of official death certificates issued by Mexican authorities for decedents Georgina Isabel Ibarra Campos and Andres Esparza Hernandez. The death certificates identified decedents?

"Nationality" as "Mexican" and stated they died in Vista Hermosa in the Mexican state of Michoacan. Additionally, the certificates identified as "Mexican" the "nationality" of decedents' parents, who were suing for themselves and for the estates of their dead children: appellant Regino Ibarra Morin and appellant Guadalupe Campos de Ibarra, respectively father and mother to Georgina Isabel Ibarra Campos, and appellantAndres Esparza Silva and Carlota Hernandez Morales, respectively father and mother to Andres Esparza Hernandez.

In January 2007, respondents Ford and Cooper Tire filed their answers to appellants' complaint. At the time respondents filed their answers, which did not allege forum non conveniens, both respondents were defendants in Judicial Council Coordination Proceeding No. 4292 in Los Angeles Superior Court known as the "Winston Tire Cases." The coordinated proceeding was instituted in 2003 in the wake of numerous lawsuits throughout California that alleged Copper Tire had negligently designed and manufactured vehicle tires. In ordering coordination, the Los Angeles Superior Court had found:

"Each [tire defect] case centers on liability theories of design as well as manufacturing defect, the common glue being that all injuries were allegedly caused by defective tire treads separating from tires made by Cooper. At least three issues predominate: (1) whether the tires were defectively designed;

(2) whether the tires were defectively manufactured; and (3) whether, in part, injury resulted therefrom."

The same day Cooper Tire served its answer to appellants' complaint, Cooper Tire petitioned to transfer appellants' complaint from San Diego Superior Court to Los Angeles to be included in the Winston Tire coordinated proceeding. Ford did not object to the transfer. Two weeks later, the coordination trial court in Los Angeles granted the petition and in February 2007 San Diego Superior Court transferred the case to Los Angeles.

Respondents thereafter pursued discovery against appellants. In May 2007, Ford individually served on each appellant requests for production, form interrogatories, and special interrogatories, which appellants answered in August 2007. The discovery Ford propounded on appellant Guadalupe Campos de Morin, the mother of decedent Georgina Isabel Ibarra Campos, is representative of the discovery that Ford sought from all six appellants.

Ford served on Guadalupe Campos de Morin 39 requests for inspection and production of documents in her possession. The subject matter of the documents Ford sought included: the Explorer's purchase; all communications by anyone regarding the accident; documents from Ford about the Explorer; depictions of the Explorer's condition at any time before or after the accident; defects and repairs to the Explorer; depictions of any "scene, place or object relevant to or connected" to the accident; documents "filed with or created by governmental agencies or insurance companies" that related to the accident; post-accident tests and inspections of the Explorer; other accidents in which the Explorer was involved; Morin's settlement demands; payments by insurers; medical history and treatment of Morin's deceased daughter since 1996; medical records of Morin's daughter's injuries from the accident; her daughter's employment history and earnings since 1996; lawsuits and other legal actions since 1996 involving Morin or her daughter; civil or criminal complaints against them; and all other documents relating to the liability of Ford, Cooper Tire, Leader Auto Sales, and Power Tires.

Ford also served individually on Morin and each of the other appellants 59 form interrogatories. Those interrogatories, each of which had subparts, sought information about each appellants' insurance; physical, mental, and emotional injuries; medical history; property damage; loss of income or earning capacity; and other damages.

Finally, Ford served almost six dozen special interrogatories on each appellant. Again, the 71 special interrogatories Ford propounded on Guadalupe Campos de Morin were largely representative of those served on all six appellants, except the interrogatories to surviving appellants (driver Jose Mazon Martinez and passenger Jesus Manuel Ibarra Campos) did not seek information about decedents. Three of the special interrogatories asked about Morin's citizenship, place of domicile, and addresses for the previous five years. More than two dozen special interrogatories sought information about the Explorer at issue, such as its purchase, use, service, repair, and alleged defects. More than a dozen special interrogatories sought information about past and future financial responsibilities and means of support for Morin and her daughter before her daughter's death. Five special interrogatories sought information about the general health, physical condition, and disabilities of Morin's daughter. Eight special interrogatories sought information about Morin's theories of liability for Ford, Cooper, Power Tires, and Leader Auto Sales. And finally, 11 special interrogatories sought miscellaneous information, such as proof Morin's daughter was wearing a seat belt when the accident occurred, and documentation of medical bills and burial expenses paid by Morin for her daughter.

Cooper Tire served discovery on appellants in April 2007, which appellants answered in July 2007. Cooper Tire served on each appellant a 28-page "plaintiff factsheet" specially prepared for the coordinated Winston Tire proceeding. The fact sheet asked questions about the following:

  • Whether the appellant had served in the American military or been rejected for military service for health reasons.
  • Workers' compensation claims, Social Security disability claims, or lawsuits filed in the previous ten years that alleged bodily injury.
  • Felony convictions.
  • Personal information about any spouse or children.
  • Information about the Explorer at issue, including its registered and prior owners, mileage, alterations and modifications, service and repair history, and previous accidents.
  • Information about the Explorer's tires, including their original purchase and replacement, mileage, and inflation pressure at the time of the accident.
  • Details about the accident, including names and address of the driver and passengers, the identity of any other cars or drivers involved in the accident, and statements or documents provided by independent witnesses.
  • Availability and particulars of insurance coverage.
  • Appellants' medical history, details about physical, mental, and emotional injuries from the accident, and current medical condition.

Cooper Tire's fact sheet also demanded copies of various documents, including:

  • Accident reports and photographs of the accident scene, the Explorer, and the allegedly defective tire.
  • Sales documents from the purchase of the Explorer and tires.
  • The Explorer's maintenance and service records.
  • Medical records for treatment of injuries from the accident.
  • Documents from workers' compensation, Social Security, or other disability proceedings.
  • Income information, including federal tax returns, substantiating lost earnings.
  • Medical bills.

Besides the 28-page fact sheet, Cooper Tire also served 43 special interrogatories on each appellant. The special interrogatories that Cooper Tire propounded on driver Jose Mazon Martinez, which are representative of those served on all appellants, asked, among other things, about the following:

  • Photographs, films, or videotapes depicting the accident scene.
  • Diagrams, reproductions, or models of "any place or thing" concerning the accident.
  • Reports about the accident.
  • Inspections of the accident scene.
  • Treatment by health care providers.
  • Unresolved injuries and ongoing treatment or need for medication because of the accident.
  • Need for future medical care.
  • Employment history.
  • Legal violations that contributed to the accident.
  • Defects or malfunctions in the Explorer that caused the accident or injuries.
  • Evidence, including documents and witnesses, of purported design defects of the Explorer's tires.
  • Evidence, including witnesses and documents, of purported manufacturing defects in the Explorer's tires.
  • Breaches of warranty by Cooper Tire.
  • Failures by Cooper Tire to warn of hazards.

All told, Ford and Cooper Tire propounded more than 1400 pages of written discovery on appellants. Appellants' responses spanned more than 650 pages.

Additionally, Cooper Tire took possession of the tires at issue by July 2007.

In February 2008, Ford and appellants unsuccessfully attempted to resolve the lawsuit through mediation. (Cooper Tire did not participate.) When the attempted mediation failed, Ford filed its motion to dismiss for forum non conveniens, in which Cooper Tire joined. They asserted the ties of appellants' lawsuit to Mexico predominated over any ties to California, making Mexico the appropriate forum for trying the case. Respondents noted that the Explorer at issue was owned, operated, and registered in Mexico at the time of the accident in Mexico, and all the plaintiffs lived in Mexico. The first responders to the accident were Mexican authorities and the physicians who treated the accident's victims were Mexican. Additionally, Mexican officials conducted the post-accident investigation. In contrast to the accident's ties to Mexico, respondents asserted the lawsuit's ties to California were minimal. The two California-based defendants, Leader Auto Sales and Power Tires, had defaulted and the remaining defendants, respondents Ford and Cooper Tire, were corporations based outside California.

Appellants opposed the motion to dismiss for forum non conveniens. Their principal argument was respondents delayed their motion to dismiss in order to take advantage of discovery mechanisms in California that do not exist in Mexico. In reply, respondents asserted, and reiterate on appeal, that their motion was timely because they had no grounds to move for dismissal for forum non conveniens until they had conducted discovery. They argued to the trial court that appellants' "complaint did not establish a basis for forum non conveniens, because it did not specify the residency or citizenship of any of the Plaintiffs or the plaintiffs' decedents…Ford only learned of plaintiffs' Mexican residency and citizenship when it received discovery responses in August 2007."

The trial court granted the motion and entered its order of dismissal after concluding California was a "seriously inconvenient forum" in which to try appellants' lawsuit. The court's 12-page order did not address the timeliness of Ford's motion or the prejudice, if any, from respondents' pursuit of discovery before Ford filed the motion to dismiss. This appeal followed.

DISCUSSION

The trial court did not address appellants' principal argument against respondents' motion to dismiss for forum non conveniens: the motion was prejudicially untimely after respondents had received extensive discovery of matters unrelated to the motion.6 On review, we apply the traditional appellate presumption that the trial court rejected appellants' untimeliness argument when it ruled in respondents' favor. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) But regardless of whether our presumption actually comports with the trial court's reasoning, we hold the court erred when it rejected appellants' contention that the motion was prejudicially untimely.

Forum non conveniens is an equitable doctrine. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) It invokes a trial court's discretionary power to decline to exercise the jurisdiction it has over a cause of action when it believes the action may be moreappropriately and justly tried elsewhere. (Ibid.) Grounded in equity, its purpose is to see that equity is done. (See, e.g., Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 693-694; Elbert, Limited v. Federated Income Properties (1953) 120 Cal.App.2d 194, 206 ["It is a measure of the virility and flexibility of equitable principles that they may be applied to the end that neither party is permitted to secure an advantage to the prejudice of another…"].) We review a trial court's application of the doctrine for abuse of discretion. (Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 682.)

Mexico, the forum the trial court deemed more suitable than California in which to try appellants' lawsuit, does not allow the type or scope of discovery that California permitted respondents to propound here. Mexico does not allow written discovery akin to interrogatories and provides for only limited requests for production of documents. Indeed, Ford's expert witness on Mexican law stated, "We don't have discovery in Mexico." Although Ford's witness may have been slightly exaggerating, we nonetheless accept as well-taken the point that Ford and Cooper Tire could not have received in Mexico the discovery that they got while litigating in California.

A party abuses the discovery process when it takes advantage of California's laws and legal processes to propound discovery beyond the scope of establishing the grounds for a forum non conveniens motion and then, after getting its discovery, asserts California is an inconvenient forum. (Accord Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1196 [prejudice when party uses discovery not available in arbitration to discover plaintiff's strategy and evidence before moving to compel arbitration].) The inequity of respondents' pretrial maneuvers is especially pronounced given that Cooper Tire, with Ford's acquiescence, transferred appellants' complaint from appellants' chosen jurisdiction - San Diego County where the Ford Explorer was purchased and the allegedly defective tire supplied - to the coordination proceedings in Los Angeles. respondents' successful transfer of appellants' complaint to Los Angeles conflicts with their assertion that California is an inconvenient forum because the coordination proceedings presuppose the efficiency and convenience of trying multiple cases that share "the common glue" that tires designed and manufactured by Cooper Tire caused the injuries alleged in the coordinated lawsuits.

Respondents note that the law imposes no express time limit on a party's forum non conveniens motion, and thus contend their motion filed in April 2008 18 months after appellants filed their complaint was timely. For example, Morris v. AFGA Corp. (2006) 144 Cal.App.4th 1452 (Morris), granted a motion filed one year after the plaintiffs filed their complaint. And Britton v. Dallas Airmotive, Inc. (2007) 153 Cal.App.4th 127, 135 granted a motion made one year after most of the defendants had answered.

Respondents' reliance on these decisions is unavailing, however, because those decisions found the plaintiffs suffered no prejudice from the defendants' belated motions since the defendants had not preceded their motions with conduct that gave them an undeserved advantage in their cases. For example, in Morris, supra, 144 Cal.App.4th 1452, a mother and her children filed their complaint in California in 2004 following the death a year earlier of their husband and father from his decades-long exposure to chemicals while working in Texas. The husband, who had last worked in California in 1982, was diagnosed with leukemia in 2002 and died in 2003. (Id. at p. 1457.) Before moving to dismiss the case based on California being an inconvenient forum, the defendants served the plaintiffs with discovery directed toward the defendants' forum non conveniens motion. (Id. at pp. 1460-1461.) In opposing the defendants' motion, the plaintiffs did not argue the defendants' pursuit of discovery had prejudiced them. Indeed, the appellate court's discussion in Morris indicates the plaintiffs did not offer any evidence of prejudice until moving for reconsideration of the trial court's order granting the motion to dismiss. But even by that late juncture, the only evidence of prejudice the plaintiffs could muster was the plaintiffs' loss of their speedy trial preference in California if the case moved to Texas. According to them, delaying their trial imposed an undue financial burden on them. (Id. at p. 1460.) The court found the plaintiffs' argument did not establish prejudice from the defendants having waited a year to file their motion. (Id. at p. 1461.)

Respondents' reliance on Britton v. Dallas Airmotive, Inc., supra, 153 Cal.App.4th 127, is similarly unavailing. There, the defendant filed its motion to dismiss for forum non conveniens one year after most of the defendants had answered the complaint. The appellate court held the motion was timely. (Id. at p. 131.) Explaining its reasoning, the court noted that discovery directed toward developing the factual underpinnings of a motion for forum non conveniens might be necessary, and thus, by implication, not prejudicial. (Id. at p. 135.) As support for its observation, the appellate court cited the discussion in Morris finding no prejudice from a one year delay between the filing of the complaint and the filing of the motion to dismiss. We find the decision in Roulier v. Cannondale (2002) 101 Cal.App.4th 1180 more illuminating on the subject of prejudicial delay than the two cases respondents cite. If one substitutes Explorer and rear tire for "bicycle," Roulier's parallels to our case here are plentiful. While visiting California, the plaintiff in Roulier bought a bicycle which he took back with him to Switzerland where he lived. While riding the bicycle in Switzerland, he suffered serious injuries. He sued the California bicycle shop and the bicycle's East Coast based manufacturer in Los Angeles Superior Court for making and selling a defective bicycle. (Id. at p. 1183.) The manufacturer served on the plaintiff over 50 form interrogatories, some of which involved matters unrelated to forum non conveniens. (Id. at pp. 1184, 1191.) The plaintiff served his discovery responses. The manufacturer thereafter moved to dismiss the complaint for forum non conveniens.

At this point Roulier's parallels with our case end because the path that the trial court took in that case diverged from the course the trial court took here. The Roulier trial court recognized that the plaintiff's accident happened in Switzerland and he had received medical care in that country, but the court denied the motion to dismiss because“ „the site of the accident is collateral to the issues raised by products liability and breach of warranty actions. Having the matter heard in California will ease the access to Evidence regarding the design and manufacture of the subject bicycle, both of which took place in the United States. " (Id. at p. 1184.) The appellate court concluded the trialcourt was correct. (Id. at pp. 1184-1186, 1192-1193.) Weighing in favor of the trial court's ruling was the appellate court's disapproval of the manufacturer's moving to dismiss after pursuing discovery that went beyond matters needed to establish forum non conveniens. (Id. at p. 1191.) Viewing the manufacturer's conduct with disfavor, the Roulier court noted:

"Counsel for [the manufacturer] told the trial court that the forum non conveniens motion was delayed to allow time to conduct discovery relevant to that issue. But the form interrogatories propounded by [the manufacturer] went beyond the forum non conveniens factors, by inquiring into the substance of plaintiff's claims for medical and lost wages damages. In an analogous case, Groom v. Health Net[supra,] 82 Cal.App.4th 1189 [], we discussed cases that have held that prejudice can be established when a party uses judicial discovery procedures for an unfair advantage, e.g., using discovery procedures not available in arbitration to discover plaintiff's strategy and evidence before moving to compel arbitration. [Citation.]" (Id. at p. 1191.)

Respondents suggest they were not alert to the possibility of a forum non conveniens motion until after they propounded discovery. Although appellants' complaint explicitly states the accident occurred in Mexico, respondents attempt to excuse their delay in filing their motion by asserting, as Ford does, that "plaintiffs' complaint is utterly silent as to plaintiffs' citizenship and residency" - meaning, in Ford's view, it had no reason until receiving appellants' discovery responses to know grounds existed for claiming forum non conveniens. In support, Ford cites to the complaint at pages 30 to 70 of the appellants' appendix, omitting in its citation to the record the death certificates attached as exhibits to the complaint at pages 72 and 73 of the appendix.

Respondents note that the complaint within its four corners does not mention appellants' Mexican residency and citizenship. Respondents are correct, but that is no answer to the death certificates attached as exhibits. The certificates identify as "Mexican" the nationalities of decedent Andres Esparza Hernandez and his wife, decedent Georgina Isabel Ibarra Esparza, and his parents, appellants Andres Esparza Silva and Carlota Hernandez Morales, and her parents, appellants Region Ibarra Morin and Guadalupe Campos de Ibarra. Given the information in the complaint and its exhibits, respondents knew, or had reason to know, at the time they were served, of the possible suitability of Mexico as a forum more convenient than California for trying the case. They did nothing, however, with that knowledge for 18 months. Instead, they affirmatively moved the case to Los Angeles Superior Court, where they took extensive discovery beyond the scope of that needed to establish the basis of a motion for forum non conveniens. Noting that a forum non conveniens motion does not require extensive discovery, the Morris court explained the motion can succeed supported by affidavits, discovery responses, and "the undisputed general knowledge of the nature of the action" permitting the court to weigh the "the general considerations" pertinent to forum non conveniens analysis. (Morris, supra, 144 Cal.App.4th at p. 1462.) Here, respondents used a California court for discovery they could not have obtained in Mexico to get evidence unrelated to their forum non conveniens motion. Having availed themselves of the advantages of California courts to the prejudice of appellants, respondents cannot now be heard to say our state's courts are inconvenient.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court to vacate its previous order and enter a new order denying respondents' motion to dismiss, and for further proceedings. Appellants to recover their costs on appeal.

RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.


[1] Mexican police concluded "unsafe tires, causing the right rear tire to explode" and the Explorer's excessive speed caused the accident.

[2] Leader Auto Sales and Power Tires did not respond to appellants' complaint and appellants took their defaults in March 2007. They are not parties to this appeal.


Was This Page Helpful? Yes | No

List of Defective Cars

Have a question that wasn't answered here?

Bisnar Chase Personal Injury Attorneys
1301 Dove St #120
Newport Beach, CA 92660

local: (949) 203-3814
Get Directions

See All Ratings And Awards

Connect

Copyright & Disclaimer

Disclaimer: The legal information presented at this site should not be construed to be formal legal advice, nor the formation of an attorney-client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Bisnar Chase serves all of California. In addition, we represent clients in various other states through our affiliations with local law firms. Through the local firm we will be admitted to practice law in their state, pro hac vice.

Copyright © 1999-2016 Bisnar Chase Personal Injury Attorneys, LLP - All rights reserved.
Location: 1301 Dove St. #120, Newport Beach, CA 92660 - Tel: (949) 203-3814

Website Design by: SLS ConsultingSLS Consulting