Ford criticizes class action lawyers' request for consumer advisory

By John O'Brien | Dec 12, 2013

HUNTINGTON – Plaintiffs lawyers are attempting to bypass several key steps in asking a federal judge to force Ford Motor Company to issue a consumer advisory, the company is claiming.

On Dec. 4, Ford filed its memorandum in opposition to a requested preliminary injunction that, if granted, would make the company issue a safety advisory that would inform drivers of certain Ford vehicles how to handle unintended sudden acceleration issues.

The motion was filed Nov. 18 by plaintiffs attorneys in a class action lawsuit in U.S. District Court for the Southern District of West Virginia in Huntington.

“Nearly eight months after filing their Complaint, and with absolutely no change in the factual circumstances attendant to the case, Plaintiffs have now filed a Motion for Preliminary Injunction,” Ford’s attorneys wrote.

“Plaintiffs seek to bypass a resolution of the pending Motion to Dismiss, bypass discovery, bypass class certification, bypass Daubert challenges and summary judgment motions, bypass trial, and instead proceed directly to the entry of class-wide injunctive relief…

“Plaintiffs now contend, without offering any competent evidence, that owners of Ford vehicles are at a ‘grave risk’ of imminent, physical harm that can only be avoided with the Court-ordered issuance of a set of instructions, to-wit, that in the event of an unwanted acceleration event, the driver should apply the brakes.”

The lawsuit, filed earlier this year, alleges purchasers of Ford, Lincoln and Mercury vehicles made from 2002-10 would not have paid as much as they did if they knew the vehicles were subject to unintended acceleration.

No physical injury is alleged. Still pending is Ford’s motion to dismiss, filed June 27.

It says the plaintiffs seek damages because the vehicles lack a particular driver-assistance feature known as Brake-Throttle Override, which depowers the engine if the gas pedal is trapped by a floor mat and the driver hits the brake.

Ford says it never marketed the vehicles at issue as having a BTO feature.

The plaintiffs attorneys responded by arguing internal Ford reports show that immediately after the company introduced the throttle control electronics at issue, the vehicles began experiencing sudden accelerations in large numbers.

Also still pending is the plaintiffs attorneys’ request to have several leadership positions among them named.

Two Charleston attorneys are asking to be named interim co-lead counsel. They are Timothy Bailey of Bucci, Bailey & Javins and Niall A. Paul of Spilman Thomas & Battle.

They are joined in their request by Adam J. Levitt of Grant & Eisenhofer in Chicago; Stephen M. Gorny of Bartimus, Frickleton, Robertson & Gorny in Leawood, Kan.; and Mark DiCello of The DiCello Law Firm in Mentor, Ohio.

Charleston attorney Edgar F. Heiskell III is also asking to be a part of the Plaintiffs Steering Committee.

Ford says it is too early to decide leadership positions because there is still a class action pending in South Carolina federal court and all the class actions should be before the same court.

In the motion for preliminary injunction, plaintiffs attorneys say Ford owners are in danger of significant injury or death.

“The further delay in providing the requested consumer advisory information exposes class members and the general public to substantial risks. Instructions provided years from now (once the case is finally tried) cannot adequately protect owners and the general public to the same extent as providing the instructions now.

“People will be injured or die and property will be damaged during that time. That is the hallmark of an irreparable injury.”

Ford’s response says the motion is procedurally and factually flawed and shows why the complaint should be dismissed.

“While Plaintiffs still do not identify any underlying design or manufacturing defect in any of the class vehicles, much less a defect common to all the vehicles, their proposed solution bears out what Ford has said all along: if a vehicle’s gas pedal becomes stuck under a floor mat or obstructed for another reason, application of the brakes will overcome the accelerator and stop the vehicle,” the company’s attorneys wrote.

The requested safety advisory contains three steps. First, a driver should step hard on the brake pedal but not pump the brakes.

Second, he or she should shift to neutral, if possible, and steer the car to a safe place by the road. Third, the driver should turn off the engine.

Ford is represented by three law firms, including Flaherty Sensabaugh Bonasso in Charleston.

Other plaintiffs attorneys asking to be placed on the Plaintiffs Steering Committee are John T. Murray of Murray and Murray in Sandusky, Ohio; John Scarola of Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla.; Joseph J. Siprut of Siprut PC in Chicago; Keith G. Bremer of Bremer Whyte Brown & O’Meara in Newport Beach, Calif.; E. Powell Miller of The Miller Law Firm in Rochester, Mich.; Grant L. Davis of Davis Bethune & Jones in Kansas City, Mo.; and Gregory M. Travalio of Isaac Wiles Burkholder & Teetor in Columbus, Ohio.

From the West Virginia Record: Reach John O’Brien at

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