Baker v. Bridgestone/Firestone, Inc.

• Decision Date: 25 July 1995
• Docket Number: No. 5:91 CV 1988.,5:91 CV 1988.
• Citation: 893 F. Supp. 1349
• Parties: Donald Burton BAKER, et al., Plaintiffs, v. BRIDGESTONE/FIRESTONE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

893 F. Supp. 1349

Donald Burton BAKER, et al., Plaintiffs, v. BRIDGESTONE/FIRESTONE, INC., et al., Defendants.

No. 5:91 CV 1988.

United States District Court, N.D. Ohio, Eastern Division.

July 25, 1995.

COPYRIGHT MATERIAL OMITTED

David A. Looney, Blakemore, Meeker & Varian, Akron, OH, John L. Hash, Winston-Salem, NC, J. Roland Wagner, Eric R. Wagner, Law Offices of J. Roland Wagner, Napa, CA, W. Carl Reynolds, Katherine L. McArthur, Bradley J. Survant, Reynolds & McArthur, Macon, GA, Steve R. Warren, Reynolds & McArthur, Asheville, NC, Thomas W. Bennett, Macon, GA, for Donald Burton Baker, Sr., Betty Muriel Baker.

Harland B. Horton, Jr., Bridgestone/Firestone, Inc., Dept. of Law, Akron, OH, Paul M. Pohl, Joseph M. David, John D. Goetz, Jones, Day, Reavis & Pogue, Pittsburgh, PA, Robert J. Drexler, Sr., Knowlton, Sanderson, Ragan, Cady, Corbett & Drexler, Akron, OH, Thomas F. Gardner, Jones, Day, Reavis & Pogue, Chicago, IL, Frances E. Prell, Julie P. Shelton, Burke, Weaver & Prell, Chicago, IL, Richard M. Markus, Porter, Wright, Morris & Arthur, Cleveland, OH, for Bridgestone/Firestone, Inc.

Edward J. Cass, Timothy John Fitzgerald, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for Kelsey-Hayes Co.

Robert Franklin Orth, Roderick, Myers & Linton, Akron, OH, Thomas P. Schult, Stinson, Mag & Fizzell, Kansas City, MO, for The Budd Co.

Charles E. Pierson, David P. Bertsch, Buckingham, Doolittle & Burroughs, Akron, OH, for Goodyear Tire & Rubber Co. Inc., Motor Wheel Corp.

MEMORANDUM & ORDER

SAM H. BELL, District Judge.

On October 6, 1990, Plaintiff Donald Burton Baker was seriously injured by an exploding wheel rim alleged to have been made by one of the defendants. Plaintiffs filed this product liability action in 1991. The case proceeded in a normal fashion through case management, and the trial was originally scheduled to commence on July 14, 1992. Due to protracted discovery, the trial date was eventually moved to January 12, 1994. On December 3, 1993, Defendant Bridgestone/Firestone, Inc.¹ moved the Court to disqualify John Hash, an attorney for the plaintiffs, arguing that Hash had improperly learned Firestone's confidences from a former Firestone attorney, Joseph Downs. Because of the potential impact of Firestone's motion on this case and at least two others, the Court elected to continue the trial date and to conduct an evidentiary hearing. After holding the hearing, this Court denied the motion.

Firestone filed a similar motion in a second case pending in the District of Kansas, Kelling v. Bridgestone/Firestone, Inc., No. 93-1319-FGT. Hash served as lead counsel for the plaintiff in Kelling. Discovery conducted in Kelling provided Firestone additional evidence casting doubt on the propriety of Hash's involvement in Kelling and in this case. In an order filed on October 17, 1994, 1994 WL 723958, the Honorable Frank G. Theis, United States District Judge for the District of Kansas, disqualified Hash in Kelling.

Resolute on this issue, and armed with the evidence unearthed in Kelling, Firestone renewed its motion for disqualification in this Court and eventually expanded the motion to reach all of Plaintiffs' attorneys. The Court conducted a two-day evidentiary hearing on the renewed motion in March of this year. The Court has since received and reviewed the parties' post-hearing briefs. Its findings of fact and conclusions of law are incorporated below.

I

Attorney Joseph Edward Downs lives and practices law in Stokes County, North Carolina. Prior to moving to North Carolina, Mr. Downs resided in Akron, Ohio, where he served for eighteen years as a staff attorney for Firestone.

Downs has been fairly described as Firestone's former "chief multi-piece rim counsel." He devoted much of his time with Firestone to the defense of multi-piece rim product liability claims brought against the company. Downs was largely responsible for the development of Firestone's standard defense, and he worked closely with the various attorneys, witnesses and defense experts typically involved in Firestone's multi-piece rim cases.

In 1986, Downs left Firestone to accept a position with the R.J. Reynolds Tobacco Company ("RJR") in Winston-Salem, North Carolina. He departed from RJR in September of 1988, remaining in North Carolina and practicing privately.

An avid pilot, Downs met Attorney John Lawler Hash, also a private pilot, at a North Carolina airfield in the fall of 1987. Hash had recently quit his practice in Huntington, West Virginia and was practicing law from his new home in Clemmons, North Carolina. Downs' and Hash's shared interest in flying led to a mutual friendship.

In August of 1986, while still in West Virginia, Hash had been visited by Anna Workman. Mrs. Workman's husband and son had both been injured — the former fatally — by an exploding multi-piece truck rim manufactured by Firestone. Despite the fact that Hash had no experience in multi-piece rim litigation, the Workmans retained him to pursue their claims against Firestone and others. Although he had not yet filed suit on their behalf, Hash continued to represent the Workmans after relocating to North Carolina in the fall of 1987.

Upon meeting Downs, Hash quickly recognized him as the author of numerous Firestone documents Hash had seen while researching multi-piece rim litigation for the Workmans. Hash mentioned his clients to Downs, and the two men agreed that it would be inappropriate to discuss the case given Downs' former position at Firestone.

Notwithstanding their agreement, Downs became enmeshed in Hash's prosecution of the Workman case. Hash filed Workman v. General Motors Corp., et al., No. 88-2780A, with this Court on July 28, 1988. Hash had invited Downs to review the complaint before it was filed, and Downs had done so, expressing his approval.

There is no direct evidence to suggest that Downs schooled Hash in the technical niceties of Firestone's wheel products, either as to their design or production. Indeed, the testimony suggests that Hash remained woefully ignorant in this regard. As a longtime player in the ongoing drama of rim litigation, Downs offered Hash an insider's impressions of the strengths and weaknesses of at least some members of the largely familiar cast of characters.

As an example, Downs and Hash discussed the abilities of Robert Lee, a Firestone employee and frequent witness for Firestone in rim cases. Lee was scheduled to appear as a defense witness in Workman, and Hash has since subpoenaed him to testify in this matter. In several exchanges with Hash, Downs described Lee as a seasoned witness and cautioned Hash to be well-prepared for Lee's deposition and trial examination. Similarly, Downs expressed his general regard for one Wolfgang Knauss, another expert frequently called by Firestone in cases such as this. Hash has since deposed Knauss in preparation for the trial of this case.

Hash also solicited Downs' opinion concerning Max Nonnamaker, a Firestone employee who, having left the company, testified as an expert witness in various multi-piece rim cases. Downs informed Hash that Nonnamaker was a respected expert in the field. Hash named Nonnamaker as an expert witness in the Workman case and, later, in this case. On another occasion, Downs mentioned that he knew Paul Youngdahl, a former University of Michigan professor who had testified on the plaintiff's behalf in other rim cases. Youngdahl is scheduled to testify for the Bakers in this case.

Additionally, Downs told Hash that former Firestone engineer Steven Blate had been used by Firestone as a "gofer," suggesting Blate had been mistreated and might bear some ill will toward Firestone. Consequently, Hash deposed Blate and served him with a trial subpoena in this case.

On at least one occasion, Downs went so far as to assist Hash in procuring and developing a potential expert witness. Michael Maddox, Ph.D., works as a human factors consultant in Madison, North Carolina. Maddox met Downs for the first time in 1990 when Downs invited Maddox to his office to discuss an automobile injury case. The two discussed the case, which concerned a faulty braking system, but Maddox did not become involved as an expert in that instance. Several months later, Maddox received a telephone call from Hash, who sought to arrange a meeting with Maddox to discuss the Workman case. Eventually, Hash retained Maddox to serve as an expert witness in the case even though Maddox had never previously been involved with a multi-piece rim case. At some point, Maddox met with Hash and Downs to prepare for his anticipated participation in the Workman trial. In Maddox's estimation, the meeting continued for about one hour; Hash testified that it lasted only ten minutes. In any event, Hash concedes that Downs offered Maddox general advice on how to conduct himself while on the stand. Maddox billed his time for this meeting to the Workmans. Since that time, Maddox has been identified and deposed as an expert witness in this matter.

After leaving RJR, Downs leased a new office suite in the small town of King, North Carolina. He invited Hash to rent a single room within the Main Street office. Hash accepted the offer and practiced out of the same suite as did Downs from October of 1989 to October of 1990. Although Hash altered the letterhead on most of his stationery to reflect his new business address, he continued to use a Winston-Salem post office box as his mailing address in the Workman case. He never mentioned his friendship with Downs to any members of the Firestone litigation team in Workman, even though he knew personally that Downs had worked with a number of these people in years past. These facts lead this Court to conclude, as did Judge Theis, that Hash actively sought to conceal his relationship with Downs from Firestone.

Late in 1990, as the trial of Workman drew near, Hash arranged to have Kenneth Williford, a personal injury lawyer from Texas, enter the...