Looking Under the Hood
Accusations that Toyota hid evidence stir plaintiffs lawyers.
The American Lawyer
By D.M. Levine
November 01, 2009
As this magazine went to press in mid-October, four boxes of documents were sitting in the back of the clerk's office in the federal courthouse in Marshall, Texas. They are under seal, and under the supervision of Judge John Ward, of the U.S. district court for the Eastern District of Texas. The boxes are said to contain internal documents from Toyota Motor Corporation--proof, allegedly, of the company's years-long conspiracy to withhold, conceal, and destroy evidence of its vehicles' design defects in hundreds of product liability suits.
The boxes were brought to Texas by Dimitrios Biller, who was Toyota's national managing counsel in charge of the manufacturer's rollover program from 2003 to 2007. Biller did so at the request of Todd Tracy, a personal injury attorney in Dallas. Tracy and Richard McCune of Southern California are both seeking to reopen old product liability cases they brought against Toyota, many of which were dismissed or withdrawn for lack of evidence. "If what Biller is saying is true, and those documents were there but not produced, we absolutely believe it affected the outcome of those cases," McCune says.
The impetus for Tracy's and McCune's suits was a wrongful termination suit that Biller brought against Toyota in federal court in Los Angeles last July. Specifically, Biller detailed Toyota's allegedly deceptive practices, and claimed that when he tried to put a stop to them, Toyota executives responded with a "campaign of intimidation and harassment" that forced him out of the company. (Morgan, Lewis & Bockius is representing Toyota in the case brought by Biller.)
Toyota declined to comment for this story, as did its outside counsel, but the company issued a lengthy press release that includes a point-by-point refutation of many of Biller's allegations. No doubt the company will also have serious questions about Biller's credibility. In his complaint, Biller admitted that he suffers from a slew of psychological problems. Biller declined to comment for this story.
Within weeks of Biller's filing, McCune filed a federal class action in the Central District of California. McCune previously brought two cases against Toyota--one in 2003 and the other in 2005--on behalf of injured passengers. One was lost at trial; one settled. McCune says that, if Biller's allegations are true, he settled for too little. (Morgan, Lewis is also handling this case for Toyota.)
Next to file was Tracy of Dallas. Tracy has been litigating against Toyota for more than two decades. Shortly after McCune filed his case, Tracy moved to reopen 17 old Toyota cases in Marshall, where the suits were originally filed. Like McCune, Tracy believes that his cases may have been prejudiced by Toyota's destruction of evidence. "We voluntarily dismissed cases where we couldn't find any damning information," says Tracy. "If that information exists, then those cases might have been resolved on better terms." (In Texas, Toyota is being represented by Ireland, Carroll & Kelly.)
In September, judge Ward issued a temporary retraining order preventing Toyota from destroying any documents related to the cases.
Toyota is fighting both Tracy's and McCune's attempts to reopen the old cases.
But other plaintiffs attorneys are taking more of a wait-and-see approach. Tab Turner, a Little Rock-based plaintiffs attorney who also has been bringing cases against Toyota for two decades, is looking into reopening a few of his old cases, but says that he's waiting until the Biller allegations can be vetted. "I've been trying to work with Toyota to get access to the information that was allegedly not produced so that I can make an informed decision," he says.
Before Tracy or anyone else can see the contents of the four boxes, Judge Ward will need to decide privilege issues. Toyota has asked Judge Ward for the opportunity to review the documents, so that the company can move to suppress any of Biller's evidence that they believe is privileged, according to Tracy. A decision is expected in November.
Hindsight is 20/20, but both Tracy and McCune claim not to be surprised by Biller's allegations. According to McCune, in years of litigating crash-worthiness suits against Toyota, "there were a lot of documents that we thought we should have gotten from Toyota that they claimed they didn't have."
Tracy goes further, saying, "For 20 years, we have suspected that Toyota discards and destroys all its developmental data, so that we can't get it in litigation."
