NO. 99-62989





)                IN THE DISTRICT OF
)                HARRISS COUNTY, TEXAS
)                61st JUDICIAL DISTRICT


I, Joan B. Claybrook, declare as follows:

  1. I am competent to make this declaration and the statements in this declaration are based on my personal knowledge. I am submitting this declaration in support of the Memorandum of Law of Amicus Curiae Public Citizen in Support of Plaintiff's Motion to Compel and Opposition to Protective Order in the above-captioned case.

  2. Since 1982, I have served as President of Public Citizen. In 1977, I was appointed by President Jimmy Carter to serve as Administrator of the National Highway Traffic Safety Administration ("NHTSA") within the U.S. Department of Transportation, where I served until 1981. I was approved for this position by the United States Senate.

  3. Public Citizen is a non-profit public interest advocacy organization founded by Ralph Nader in 1971. Public Citizen has taken an active role in promoting consumer health and safety and ensuring that the public is well informed about the health risks of consumer products. In addition, Public Citizen has long been an advocate for keeping the judicial process open to the public and has frequently opposed overbroad protective orders that prohibit disclosure of information concerning consumer health and safety.

  4. Public Citizen has taken a leading role in informing the public of the defects in Firestone's tires. I testified before the U.S. Senate on September 6, 2000 and again on September 12, 2000, regarding the dangers posed by Firestone's defective tires, the likelihood that Ford and Firestone were aware of the defects before they chose to inform the public of the problem, and the quality of NHTSA's oversight of the safety of these tires. Public Citizen has called for an expanded recall of Firestone tires and for penalties to be issued against these two companies.

  5. Firestone has recalled 15-inch ATX and ATX II tires (from 1991 to the present) and 15-inch Wilderness AT tires (from 1996 to the present). Firestone suggests that a manufacturing error specific to the Decatur, Illinois plant caused the problems with these tires, which is why it does not plan to recall the approximately 5.6 million Wilderness AT tires manufactured at other plants, or other models of tires. Consumer groups, including Public Citizen, contend that the underlying problem is a design defect, and thus seek to extend the recall to tires manufactured at other plants, and to 16-inch tires.

  6. NHTSA also believes that additional models suffer the same defect as the models that have already recalled. The agency has issued a consumer alert about the safety of 1.4 million additional tires and has requested that Firestone recall these additional tires. See Statement by U.S. Transportation Secretary Slater on Bridgestone/Firestone Recall, Sept. 6, 2000. Thus far, Firestone has refused to do so.

  7. The documents for which Firestone seeks a protective order in this case could help answer the question whether the problem is a manufacturing error limited to the Decatur, Illinois plant, or a design defect affecting many more tires than have thus far been recalled. For example, plaintiff in this case requested documents concerning "blowout stability test and vehicle stability test records, test protocols and test results for the subject tire." See Firestone's Response to Plaintiff's Request for Production of Documents at 5. Firestone admits having documents responsive to the request, but will only produce those documents after they are "subject to the entry of a suitable protective order." Id.  Firestone also refused to respond to a request for the Mold Profile Drawings, or Cross-Section Drawings, to which its tires were manufactured unless the documents are covered by a protective order. Id. at 13. Both categories of documents should be produced without restriction, because this information will help inform the public whether the tires at issue have a design defect, as consumer groups contend, in which case many more tires may be affected than Firestone has been willing to admit.

  8. Firestone also refused to respond to a request for "training of operators and tire builders" at the Decatur, Illinois plant and "quality control manuals" and "training materials" without a "suitable protective order" in place. See Firestone's Response to Plaintiff's Request for Production of Documents at 12, 15-16. This information could assist the public in determining whether a manufacturing error is the sole cause of the problems with the tires at the Decatur, Illinois plant, which, if true, would ease concern that tires manufactured at other plants might have similar problems.

  9. Also unknown is the degree to which the design of the Ford Explorer is responsible for the accidents in question. Evidence supports the conclusion that Ford Explorers are prone to roll over. In mid-1989, company engineers outlined the design modifications that could make the vehicle safer, which included widening the vehicle's track width, altering the suspension system, and lowering the vehicle's center of gravity. However, these major design changes would have taken up to ten months to implement. Rather than re-engineer the Explorer, Ford decided to lower the recommended air pressure in its Firestone tires to 26 pounds per square inch ("psi") to make the vehicle less likely to roll over when a driver swerved suddenly, left the road, or had tire failure, despite Firestone's recommendation of 35 psi for the maximum load.

  10. Ford's decision to lower the tire pressure may have exacerbated the defects in Firestone tires. The lower tire pressure puts more stress on the tires, leading to the heat buildup and increasing the likelihood of tread separation. Evidence strongly suggests that Firestone model ATX, ATX II and Wilderness tires on Ford Explorers are overheating with highway use, causing the tread to separate and the Explorers to experience catastrophic crashes, not infrequently rolling over and causing fatal injuries. To date, NHTSA has documented 88 deaths and 250 injuries. Dozens of other fatalities occurred abroad.

  11. The documents for which Ford is seeking a protective order in this litigation might help answer questions about the safety of its vehicle design and whether its decision to lower the tire pressure in tires on Ford Explorers increased the risk of tire failure. For instance, Ford is withholding documents on vehicle stability and vehicle design, which might determine whether the design of the Ford Explorer makes it more likely than other vehicles to roll over when a tire loses its tread. See Explorer Protected Document Log, pp. 1-5, attached as Exhibit E to Plaintiff's Motion to Compel and Opposition to Protective Order.

  12. Evidence suggests that Ford and Firestone may have known about defects in Firestone tires long before the August 9, 2000 recall. Both Ford and Firestone have been subject to multiple lawsuits arising from accidents caused by tread separation since the early 1990s. In 1996, several state agencies in Arizona began having major problems with Firestone tires on Ford Explorers, and various agencies demanded new tires. Firestone conducted an investigation of the complaints and tested the tires, but concluded that the tire failures had been caused by abuse or underinflation of the tires, and not by any defect with the tires themselves. In 1998, Ford and Firestone discussed tire failures with officials in Middle Eastern, Asian, and South American countries. Tires were tested and analyzed. Eventually, Ford decided to conduct its own recall without Firestone, and it replaced the tires on Ford Explorers in sixteen countries in 1999 and 2000. Ford also instructed Firestone to add a nylon ply to the tires it manufactured in Venezuela for additional strength, and it made suspension changes to the Explorer. However, Ford did not ask Firestone to add the nylon ply for Firestone tires sold in the United States, nor did it change the Explorer suspension at that time. Ford also failed to inform federal officials that it had ordered the recall in other countries. Finally, although Firestone and Ford claimed they had no knowledge of safety problems with the tires until Ford analyzed claims against Firestone in July and August of this year, internal Firestone documents reveal that Firestone collected data from 1997-1999 that indicated possible safety problems with the tires that it was eventually forced to recall.

  13. Ford and Firestone are seeking protective orders in this case for documents that could shed light on how much they knew about the defects in Firestone tires, and when they obtained that knowledge. For example, Ford is seeking to protect the minutes of meetings of its Board of Directors and Policy and Strategy Committee throughout the early 1990s. See Explorer Protected Document Log, pp. 1-5, attached as Exhibit E to Plaintiff's Motion to Compel and Opposition to Protective Order. Firestone requests a protective order for documents in response to a request for "all communications between Ford Motor Company and Bridgestone/Firestone concerning the manufacture, design, testing, use and failure of the subject tires." See Firestone's Response to Plaintiff's Request for Production of Documents at 16. These records may reveal that Firestone and Ford knew about the safety hazards long before they reported the problem to the public, a fact that would be of great interest to the public.

  14. NHTSA no longer has some important programs in place to identify defects before they result in widespread injury and death. In the past, NHTSA had a nationwide network of repair shops that would report possible defects. NHTSA also urged attorneys who worked on defect cases report information, it communicated with owners of fleets of cars about problems, and it otherwise attempted to find out about defects before lives were lost. These programs are not in place today. At Congressional hearings, NHTSA has admitted it was too slow in identifying the problems with Firestone tires. NHTSA Administrator Sue Bailey has told the committee that the agency is exploring ways it could improve tracking of claims and litigation information.

  15. Documents at issue in this case could be instrumental in determining how well NHTSA is doing its job and suggest methods and perhaps legislation that would improve its performance in the future. For instance, if documents reveal that the problems with Firestone tires were so widespread and well known that NHTSA, using its current methods and oversight authority, should have detected them, then the problem is with NHTSA's performance. However, if the records reveal that NHTSA could only have identified the problem with additional investigation, then the problem is a lack of funding for additional personnel to monitor auto safety.

  16. The information at issue in discovery in this case would assist Public Citizen, as well as other consumer advocates, journalists, and members of the public, in investigating the risk to public safety caused by these tires, the culpability of Ford and Firestone, and the quality of NHTSA's performance in overseeing the safety of these two companies' products.

Executed at Washington, D.C., this 14th day of September, 2000.

I declare under penalty of perjury that the foregoing is true and correct. ___________________________

Joan B. Claybrook