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Ford Motor Co. refused Wednesday to concede a safety defect in its vehicles’ ignition systems and warned that an Alameda County, Calif. judge’s proposed recall could end up doing more harm than good. In Howard v. Ford Motor Co., Judge Michael Ballachey issued a tentative decision that could compel the automaker to recall nearly 2 million of its cars and trucks and pay restitution to millions of people who drove the vehicles between 1983 and 1995. A hearing is scheduled for Sept. 28 and 29 if attorneys from either side contest the findings. A judge can modify a temporary order after hearing arguments from counsel in the case. In his preliminary ruling, Ballachey lambasted the automotive giant for hiding problems with faulty ignition modules. He scolded Ford for withholding information from the government and for deceiving consumers. If Ballachey’s ruling holds, it would be the first bench-ordered recall of automobiles in history. Ford, however, said the ruling is vague, and a recall could cause vehicles “to be less reliable,” said Donald Lough, Ford’s general counsel. He also raised the specter of state judges throughout the country issuing piecemeal rulings on auto safety that could conflict with federal standards. The order couldn’t have come at a worse time for Ford. The company is already fighting to restore its credibility in the consumer market after joining Bridgestone/Firestone Inc. in a massive recall of defective tires that are standard equipment on its trucks and sport utility vehicles. Already, dozens of product liability lawsuits have been filed naming Ford and alleging that the company knew the tires were inclined to blow out. Ford attorneys maintain that the two issues — whether the thick film ignition, or TFI, module was defective and whether Ford knew the tires posed a safety risk — are entirely separate. But plaintiffs’ attorneys say Ballachey’s decision could feed the flame under Ford’s feet. “Ford’s got a real credibility problem right now,” said Frank Pitre, a partner with Burlingame, Calif.’s Cotchett, Pitre & Simon, who filed the latest suit against Bridgestone/Firestone and Ford this week in San Mateo County. “If Judge Ballachey’s ruling stands, Ford will have to be in the position of recalling all those cars when they’re still trying to tell the public everything’s fine.” Ballachey’s order also comes only a week before Ford executives are scheduled to testify in congressional committee hearings on the recall of the tires. Paul Nelson, a plaintiffs’ attorney in the Howard class action and a partner with San Francisco-based Hancock Rothert & Bunshoft, said the California ruling could prove a thorn in Ford’s side next week. “It’s another example of how Ford covered up a known safety defect,” Nelson said. Ballachey’s ruling came more than eight months after an Alameda County jury hung while trying to decide the damages phase of the case. More than 3 million people are included in the class action filed in Oakland. Ballachey did not mince words in his order, a 10-page document in which he referred to Ford as playing “word games” with the National Highway Traffic Safety Administration, using “rhetoric” to try to explain why its cars stalled, fraudulently withholding information from the government and from the public, and flooding the record with “a blizzard of unpersuasive statistical evidence” to conceal the safety defect. In its defense, Ford maintains that its ignition system posed no safety risk; they note that no plaintiff alleges physical injury in the class action in question. And the car company’s attorneys say Ballachey’s order is incomplete at best, especially in ordering a recall without offering any real direction about what would be needed to fix the alleged problem. Ford faces a handful of similar class actions in other states, and the company fears trial judges may follow Ballachey’s lead. “We’re very concerned about the prospect of state judges around the country separately making decisions about our automotive safety. That’s why we have NHTSA,” said Lough. The NHTSA is responsible for enforcing federal guidelines and ordering recalls. Attorneys have nine days to contest the tentative orders or make additional proposals to Ballachey’s preliminary ruling, which was issued Tuesday. Ford representatives have said they don’t anticipate “any fireworks” between now and the scheduled Sept. 28-29 hearing, though they said the order would require additional hearings with a court-appointed referee. Plaintiffs’ attorneys have said they intend to request that the court elaborate on why it denied the plaintiffs’ claim for disgorgement as restitution. Ballachey denied the claim on the basis that plaintiffs failed to establish by a preponderance of the evidence proof of “ill-gotten gains” in the form of “avoided costs” and also because recent California Supreme Court decisions suggest disgorgement would not have been constitutional. “We still believe the court has the power to order the company to pay over what profit it made by not fixing the problem,” Nelson said. “You don’t want a company benefiting from its wrongful practices.”

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