December 1, 2005
TLPJ and Public Citizen Challenge Court Order Sealing ‘Smoking Gun’ Documents That Show Ford Weakened Explorer Roof
Nationally Publicized Documents Now Under Seal Despite Direct Relevance to
New Proposed Federal Roof Strength Regulation
WASHINGTON, D.C. – Trial Lawyers for Public Justice (TLPJ), representing Public Citizen, filed a legal challenge today to a Florida court order sealing crucial exhibits from a rollover case decided last spring over fatal injuries caused by the popular Ford Explorer SUV. The key documents were publicized in news reports throughout the nation, but have now been sealed despite their direct relevance to a new proposed federal roof strength regulation undergoing public comment.
The documents show that throughout the late 1990s, Ford successively weakened the roof of its Ford Explorer and that the vehicle has an extremely low margin of safety in rollover crashes. Testing documents from Volvo, which became a Ford subsidiary in 2000, also demonstrate that a strong roof can protect occupants in a rollover, and that, in developing its SUV, the XC-90, Volvo used a much stronger dynamic test to examine roof strength and the interaction of safety systems in a rollover. The public interest in these documents is acute because of the 10,000 people who die each year in rollover crashes and because the National Highway Traffic Safety Administration (NHTSA) is considering a proposal to improve its roof strength safety standard for vehicles. What automakers know about injury prevention in rollovers should be fully disclosed and made part of the public record in NHTSA’s pending rulemaking, which could affect vehicle safety for decades.
The exhibits were introduced in the public trial, Duncan v. Ford Motor Company, a Jacksonville Florida state court case. The exhibits remained publicly available in the clerk’s office for weeks after the trial, generating nationwide news coverage. Ford eventually asked the trial court to seal the exhibits, relying on a pretrial gag order. In May 2005, the trial court granted Ford’s motion, barring further public access. Although Public Citizen had legally obtained the documents, Volvo threatened to sue the organization if they were publicly disseminated.
Today, Public Citizen and TLPJ filed a motion to unseal the trial exhibits on the grounds that keeping them sealed violates Florida’s Sunshine Act, which forbids court orders that conceal “public hazards,” and the First Amendment of the U.S. Constitution, which creates a strong presumption of public access to information brought to light in civil trials.
“These documents are at the core of this vital public safety issue,” said Joan Claybrook, president of Public Citizen and former head of NHTSA. “They show that Ford made the Explorer’s roof treacherously weak, and that Volvo has outlined a solution for all automakers that would prevent the ongoing tragedy of needless deaths in rollover crashes. The time has come for Ford to come clean about its role in rollover deaths, especially now that new roof crush safety standards are being drawn up.”
Scott Duncan sued Ford after Duncan’s 26-year-old wife, Claire, died in May 2001 when their Explorer rolled over. The case resulted in a $10.2 million jury award and revealed stunning new evidence showing Ford’s extensive knowledge of how stronger roofs can prevent rollover injuries and deaths. Central to the case were crash-test videos, test reports and internal documents made public during the four-week trial. The Volvo documents showed that strengthening an SUV’s roof would save lives. They also showed that Ford had made the Explorer’s roof weaker, leaving its roof-strength-to-vehicle-weight ratio only a slim margin above the 35-year-old federal safety standard.
Ford did not move to seal the Volvo documents at the time they were admitted at trial, nor for weeks afterward. In fact, after the trial concluded, the documents were widely disseminated. Public interest groups received the exhibits; many major news outlets wrote articles based on their content, including The New York Times, the Los Angeles Times, and The Detroit News; and they were posted on NHTSA’s Web site. Several weeks after the trial had concluded, and after the documents had been widely circulated, Ford moved to enforce the protective order. The trial court granted Ford’s motion, but stated that it would consider unsealing the documents if a third party moved for public access.
In the wake of that ruling, and after receiving a letter from Ford saying that the documents contain trade secrets and were protected by the Duncan court’s sealing order, NHTSA withdrew the contested documents from the agency’s public docket on the roof crush rulemaking, undermining the public’s access to information about roof safety.
“To protect the safety of families who travel America’s highways in SUVs, Florida’s Sunshine Law and the First Amendment require that the shroud of secrecy be lifted from this key evidence,” said TLPJ’s Leslie Brueckner, lead counsel for Public Citizen. “As the jury in this case found, the Ford Explorer is a public hazard, and these documents prove it. Public safety demands that this evidence come to light.”
Duncan was the fourth jury trial loss for Ford in an Explorer rollover case between June 2004 and April 2005, following a string of 13 wins for the automaker. The case is currently on appeal to an intermediate Florida appellate court.
The legal team also includes TLPJ’s Rebecca Epstein and Charles Alford of Jacksonville’s Alford & Kalil P.A. The challenge is part of TLPJ’s Project ACCESS, a 15-year-old project against excessive court secrecy, and the group’s new Access to Justice Campaign, a nationwide initiative to keep America’s courthouse doors open to all. The motion challenging the Duncan secrecy order can be viewed here and here. In addition, news stories about the documents are available by clicking here.