Haeger v. Goodyear Tire & Rubber Co.

• Decision Date: 08 November 2012
• Docket Number: No. CV–05–02046–PHX–ROS.,CV–05–02046–PHX–ROS.
• Citation: 906 F.Supp.2d 938
• Parties: Leroy HAEGER, et al., Plaintiffs, v. GOODYEAR TIRE AND RUBBER CO., et al., Defendants.
• Court: U.S. District Court — District of Arizona

906 F.Supp.2d 938

Leroy HAEGER, et al., Plaintiffs,

v.GOODYEAR TIRE AND RUBBER CO., et al., Defendants.

No. CV–05–02046–PHX–ROS.

United States District Court, D. Arizona.

Nov. 8, 2012.

Blanca Quintero, Cozen O'Connor, San Diego, CA, David L. Kurtz, Kurtz Law Firm, Scottsdale, AZ, John James Egbert, Michael J. O'Connor, Jennings Strouss & Salmon PLC, James Michael Abernethy, Abernethy & Green PLC, Phoenix, AZ, for Plaintiffs.

George Ian Brandon, Sr., Kendall Kyle Wilson, Brian Michael McQuaid, Squire Sanders (US) LLP, Graeme Em Hancock, Fennemore Craig PC, Phoenix, AZ, George W. Rooney, Jr., Roetzel & Andress LPA, Jill G. Okun, Squire Sanders & Dempsey LLP, Cleveland, OH, Walter M. Yoka, Yoka & Smith LLP, Los Angeles, CA, for Defendants.

ORDER

ROSLYN O. SILVER, Chief Judge.

Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles in favor of their own interests.¹ The little voice in every attorney's conscience that murmurs turn over all material information was ignored.

Based on a review of the entire record, the Court concludes there is clear and convincing evidence that sanctions are required to be imposed against Mr. Hancock, Mr. Musnuff, and Goodyear. The Court is aware of the unfortunate professional consequences that may flow from this Order. Those consequences, however, are a direct result of repeated, deliberate decisions by Mr. Hancock, Mr. Musnuff, and Goodyear to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents. Mr. Hancock, Mr. Musnuff, and Goodyear will surely be disappointed, but they cannot be surprised.

FINDINGS OF FACT

I. The Accident

In June 2003, Leroy and Donna Haeger, along with Barry and Suzanne Haeger (collectively “the Haegers”), were traveling in a motor home owned by Leroy and Donna. It was manufactured by Gulf Stream Coach (“Gulf Stream”) on a chassis manufactured by Spartan Motors, Inc. (“Spartan”). The motor home had “G159” tires manufactured by Goodyear Tire and Rubber Company (“Goodyear”). While traveling on the highway, one of the motor home's front tires failed, followed immediately by the motor home leaving the road and tipping over.² The Haegers suffered serious injuries as a result. The motor home was insured by Farmers Insurance Company (“Farmers”).

II. Initial Proceedings

In 2005, the Haegers and Farmers sued Gulf Stream, Spartan, and Goodyear. The Haegers and Farmers alleged various product liability and negligence claims, including a claim that G159 tires were defective if used on motor homes. (Doc. 13). The Haegers were represented by David Kurtz. Goodyear was represented by Graeme Hancock of Fennemore Craig PC and Basil Musnuff of Roetzel & Andress in Akron, Ohio. Because Goodyear was being sued throughout the country based on alleged defects in the same G159 tire, it had appointed Mr. Musnuff as “national coordinating counsel” on all G159 cases. (Doc. 1014 at 93). In that role, Mr. Musnuff was responsible for reviewing discovery requests, coordinating the search for documents, and drafting responses. (Doc. 1014 at 124–25). Mr. Musnuff worked directly with Goodyear's in-house counsel Deborah Okey.³

On December 15, 2005, Goodyear served its Initial Disclosure Statement. (Doc. 992–1 at 20). According to that statement, “Plaintiffs' allegations with regard to the subject tire [were] unclear.” (Doc. 992–1 at 23). Based on the alleged uncertainty, Goodyear's disclosure statement contained no meaningful information. In fact, it appears Goodyear's disclosure statement largely referenced witnesses and documents previously provided to Goodyear by Plaintiffs. Mr. Kurtz was not satisfied with Goodyear's initial disclosure and he wrote to Mr. Hancock and asked that Goodyear “take a more reflective look at your disclosure statement and comply with both the spirit and intent of the rule.” (Doc. 992–1 at 27). In particular, Mr. Kurtz asked Goodyear to provide more meaningful disclosures regarding individuals who might have relevant information regarding the tire. Mr. Kurtz also asked Goodyear to produce “[t]esting documentation regarding the G 159 tires.” (Doc. 992–1 at 29). Goodyear did not supplement its initial disclosure in any relevant way.

III. Plaintiffs' Responses to Interrogatories

On August 18, 2006, Plaintiffs responded to a set of interrogatories from Goodyear.⁴ Goodyear's interrogatory number 5 asked for “each legal theory under which you believe Goodyear is liable.” (Doc. 963–1 at 19). In response, Plaintiffs stated it had been inappropriate to market the G159 tire for use on motor homes. According to Plaintiffs: “Prolonged heat causes degradation of the tire which, under appropriate circumstances, can lead to tire failure and tread separation even when the tire is properly inflated.” (Doc. 963–1 at 20). Because the G159 was originally designed “for pick-up and delivery trucks,” Plaintiffs claimed using the tire on motor homes meant it was “operating at maximum loads and at maximum speeds, producing heat and degradation to which the tire was not designed to endure, leading to its premature failure.” (Doc. 963–1 at 20) (emphasis added). Accordingly, as of approximately August 18, 2006, Goodyear and its counsel knew Plaintiffs' liability theory and that heat would be a central issue in this case.⁵

IV. First Discovery Dispute and Protective Order

In August 2006, the parties filed their first notice of a discovery dispute. (Doc. 49). That disagreement centered on the terms of a protective order. The parties could not agree on how material designated “confidential” should be handled and on whether the protective order should include a provision allowing Mr. Kurtz to “share” information with other counsel litigating G159 claims against Goodyear elsewhere in the country. (Doc. 49). On August 22, 2006, the Court held a scheduling conference and also addressed the pending disagreements.

At the conference, Plaintiffs were represented by David Kurtz and Goodyear was represented by Mr. Hancock. When asked to explain the parties' disputes, Mr. Kurtz began by stating he was concerned Goodyear would abuse the provision allowing for documents to be designated “confidential.” In effect, Mr. Kurtz wanted the protective order to contain a provision that would allow Goodyear's counsel located elsewhere to designate documents as “confidential.” Local counsel, however, would be required to make “a reasonable inquiry to verify that in fact those confidentiality designations have been thoughtfully made by appropriate people.” (Doc. 53 at 8). The Court rejected Mr. Kurtz's request and stated local counsel would not have to personally verify all “confidential” designations. But the Court also observed that local counsel remained “responsible for anything that's filed in this court ... [and] they have a good-faith obligation to the Court and they are officers of the Court.” (Doc. 53 at 8).

As for the sharing provision, Plaintiffs argued it was necessary to ensure that all parties litigating cases against Goodyear would receive “the appropriate and complete data in similarly situated cases.” (Doc. 53 at 10). The Court rejected this request, emphasizing that “every officer before this Court has an obligation to provide all relevant discovery.” (Doc. 53 at 10). The Court observed that the Federal Rules already provide “that anything that is relevant must be turned over to counsel and to all the parties,” so there was no need for the sharing provision. Therefore, as of August 2006 all counsel were expressly aware of the Court's expectations regarding discovery. The Court signed the scheduling order and the parties began discovery in earnest.

V. Plaintiffs' First Request for Production of Documents

In September 2006, Plaintiffs served Goodyear with their First Request for Production of Documents (“First Request”). (Doc. 59). Approximately thirty days later, Goodyear provided its responses. As later explained by Mr. Musnuff, in preparing discovery responses Mr. Musnuff would draft the responses, send them to Ms. Okey for approval, and after Ms. Okey approved them, they would be sent to local counsel for filing and service. (Doc. 1014 at 65–66). While Mr. Musnuff was tasked with drafting responses, Ms. Okey was always the final decision maker regarding discovery responses. (Doc. 1014 at 67).

The initial responses drafted by Mr. Musnuff, approved by Ms. Okey, and signed by local counsel consisted of sixteen “general objections” and then specific objections to each request which largely referenced the general objections. (Doc. 938–1 at 19). For example, Plaintiffs' Request for Production No. 14 sought: “All test records for the G159 tires, including, but no[t] limited to, road tests, wheel tests, high speed testing, and durability testing.” (Doc. 938–1 at 24). Goodyear's response was:

RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information, seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.

The record does not reflect any communications between Plaintiffs and Goodyear until Goodyear provided supplemental responses on November 1, 2006. (Doc. 62, 63). Most relevant here is Goodyear's supplemental response to the same “Request for Production No. 14.” The supplemental response was:

RESPONSE: See General Objections. Goodyear objects to this Request for the reasons and on the grounds that it is Overly Broad, Unduly Burdensome and seeks Irrelevant and Confidential Information,seeks information about tires Not Substantially Similar, and Plaintiffs have identified No Defect Theory.

SUPPLEMENTAL RESPONSE: Subject...