WEST VIRGINIA RECORD

HUNTINGTON – Ford Motor Company says it is too early to worry about which plaintiffs lawyers will be given leadership positions in the class action lawsuits filed against it, while one of those lawyers says Ford has no standing to oppose the issue.

Ford filed a response in opposition to a motion recently submitted by plaintiffs lawyers in three class actions filed against Ford in U.S. District Court for the Southern District of West Virginia.

That motion asks U.S. District Judge Robert C. Chambers to appoint interim co-lead counsel and a plaintiffs steering committee.

Ford says the motion would only be appropriate if all cases were before the same court. Currently, there’s a class action pending in South Carolina federal court.

“Should the District of South Carolina choose to stay Thomas and then transfer it to this Court, a motion to appoint Interim Lead Counsel would be appropriate,” Ford’s response says.

“Until that time, this Court does not have power to compel any action in Thomas; choosing ‘lead counsel’ in this case would only confuse the question of who speaks for the purported class.

“In reality, no one does. Until a class is certified, nothing in these cases is binding on absent class members.”

Timothy Bailey – of Bucci, Bailey & Javins in Charleston – is one of the attorneys asking to be named interim co-lead counsel.

“The motion pending is for appointment of ‘interim’ lead counsel prior to class certification,” he said.

“While Ford may have standing to offer a position once motions for class certification and class counsel are made at a later time, there appears to be no legal precedent for the proposition that Ford has standing to oppose the interim lead counsel issue.”

Bailey and the plaintiffs attorneys filed their motion on July 30. The three cases were filed by attorneys from across the country on behalf of Ford drivers from several states.

The first lawsuit was filed in April and the second in June. A third was filed on July 25.

Along with Bailey, Niall A. Paul of Spilman Thomas & Battle in Charleston is asking to be appointed interim co-lead counsel.

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.

The three lawsuits make the same allegations – that those who purchased Ford vehicles manufactured between 2002-10 would not have paid as much for them or purchased them at all if they were made aware of the sudden acceleration problems.

The vehicles at issue were manufactured between 2002 and 2010. They were equipped with an electronic throttle control but not adequate fail-safe systems to prevent incidents of sudden unintended acceleration, the complaint says.

“In addition, and most significantly, regardless of the cause of these admittedly foreseeable events, the Ford vehicles share a common design defect in that they lack adequate fail-safe systems, including a reliable Brake Over Accelerator system that would allow a driver to mitigate sudden unintended acceleration by depressing the brake,” the complaints say.

“Each person who has owned or leased a Ford vehicle vulnerable to sudden unintended acceleration during the time period relevant to this action paid more for the Ford vehicle than they would have paid, or would not have purchased or leased the Ford vehicle altogether, because of the defective nature of the Ford vehicles resulting from the absence of a fail-safe such as a BOA to prevent sudden unintended acceleration events in each of them.”

The complaints say they have also been filed before the tolling of the statute of limitations because the plaintiffs could not have known their vehicles were vulnerable to sudden unintended acceleration because Ford concealed this from them.

Lincoln and Mercury vehicles from the same years are included in the complaints.

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

Others asking to be placed on the SPC 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.

Other firms that signed the last two complaints were Gomez & Iagmin of San Diego and Laffey, Bucci & Kent in Philadelphia.

On June 27, Ford asked Chambers to dismiss the lawsuit or have certain “objectionable” paragraphs from the complaint stricken.

“Plaintiffs seek a court-ordered recall and monetary damages in connection with nearly every Ford Motor Company vehicle sold in the United States between 2002 and 2010… because the vehicles lack a particular driver-assistance feature referred to as Brake Over Accelerator or Brake-Throttle Override, which depowers the engine if the gas pedal is trapped by a floor mat and the driver engages the brake,” the memorandum in support of the motion to dismiss says.

“Notably, as conceded by Plaintiffs, a BTO feature does not prevent an unwanted acceleration resulting from a trapped gas pedal, but it may assist the driver in overcoming such a situation if it does occur.

“Although Ford never marketed the vehicles at issue as having a BTO feature, Plaintiffs contend that its absence from their vehicles dimishes their value, and that Ford’s failure to disclose that absence was fraudulent.”

The paragraphs Ford finds “objectionable” allege that in the 1980s, the company intentionally disposed of internal reports regarding sudden acceleration events and that it concealed the information from the National Highway Traffic Safety Administration.

Ford says those allegations have already been rejected by the NHTSA and a Florida appellate court.

“Second, the allegations are simply irrelevant to Plaintiffs’ claims and, therefore, immaterial and impertinent,” the memorandum in support says.

“The allegations in the Objectionable Paragraphs are scandalous, injurious to Ford’s reputation, and have no bearing on Plaintiffs’ present claims. The allegations are clearly designed only to inflame the jury and the public.

“Moreover, the continued presence of these objectionable allegations of decades-old conduct will prejudice Ford by requiring extensive and unnecessary expenditures of resources in litigation.”

The company recently agreed to pay $17.35 million to settle an investigation by the National Highway Traffic Safety Agency.

The NHTSA alleged Ford took too long to recal Escapes that could have defects that cause unintended acceleration. Ford recalled 423,000 Escapes in 2012.

Ford denied it broke any laws in the settlement agreement.

Chambers recently granted the plaintiffs’ motion to consolidate the first two cases filed for pretrial purposes.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.