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It took marathon negotiating sessions, lasting into the wee hours over the weekend of Jan. 6-7, for lawyers to avert what would have been the nation’s first post-recall trial in a tire-tread-separation suit involving Bridgestone/Firestone tires and a Ford Explorer. The suit, set for trial Jan. 9 in a Corpus Christi, Texas, state district court, settled early in the morning of Jan. 8, just hours before hoards of reporters were expected to flock to the South Texas city to cover jury selection in the trial. Tread-separation litigation has been hot since Firestone voluntarily recalled 6.5 million tires in August 2000. Settlement was no sure deal in the suit, lodged by a 44-year-old woman from Portland who received injuries in an accident in March 2000 that left her a quadriplegic and dependent on a ventilator to breathe. While imminent trial dates often lead to settlement, lawyers were still taking depositions in the suit on Jan. 5. The plaintiffs’ lawyers struck a deal with defendant Ford Motor Co. on Jan. 6, but didn’t wrap up talks with lawyers for Bridgestone/Firestone Inc. until about 2:45 a.m. on Jan. 8. It wasn’t until that moment that plaintiffs’ lawyer Mikal Watts of Corpus Christi became convinced he wasn’t going to be picking a jury on Jan. 9. His co-counsel, Arkansas lawyer C. Tab Turner, was sure of a settlement a little earlier — when a trio of in-house lawyers from Ford asked to visit plaintiff Donna Bailey in her hospital room on Jan. 6 and agreed to let their visit be videotaped. “I was not going to settle the case before that,” says Turner, of Turner & Associates of North Little Rock, Ark. “We had a number of nonmonetary demands that we were insisting upon that we didn’t think they would meet � and they met them,” says Watts, a partner in Harris & Watts of Corpus Christi. Financial terms of the settlement are confidential, although Turner says they would have asked a jury to award actual damages of at least $30 million. But other terms of the agreement with Ford are public. The Dearborn, Mich.-based carmaker agreed to provide Watts and Turner with copies of any documents relating to Firestone tires or Ford Explorers within 15 days after they are turned over to the National Highway Traffic Safety Administration and/or members of Congress and congressional committees. Susan Krusel, a Ford legal affairs spokeswoman, says it extends an existing agreement for Ford to provide Watts and Turner with documents. Watts and Turner also agreed to allow Ford to inspect any tires and vehicles relating to any of their clients alleging the failure of any Firestone tire on a Ford Explorer. Ford agreed to inspect the tires and vehicles within 90 days, and within 30 days after that to provide the lawyers and NHTSA with results of the inspections. Watts says he will post any documents he receives on his firm’s Web site. “It was extremely important to Donna [Bailey] that her case not be just about money, but the Bailey case be a pivotal point in this litigation and the public gained a right to know,” he says. That could be significant, according to three other plaintiffs’ lawyers with tread-separation suits, although Corpus Christi’s Robert Patterson, of Patterson & Associates, isn’t expecting much to come from the Ford inspections. “My concern is that Ford and Firestone have never found a tread-separation incident that they think is their fault yet. Why is this going to be any different?” Patterson asks. “If NHTSA could independently investigate it, it might be a different story.” Dallas’ Leon Russell, a partner in Russell, Brown & Sawicki, says public scrutiny and interpretation of the documents could shed some new light on them and could prompt NHTSA to ask for further tire recalls. Despite Bailey’s insistence on the nonmonetary aspects of the settlement, Turner says the deal turned on money. “None of this was important to settle the case, so to speak, neither the video, nor the disclosure [of documents] nor the investigation. None of these things were the deal breakers,” Turner says. “We had to get the number large enough to make sure she was fully taken care of for the rest of her life.” Bailey, a divorced mother of two, has been in a rehabilitation hospital in Houston for several months since she was injured in the accident. She is a plaintiff in Michael George Bailey, et al. v. Ford Motor Co., et al., No. 00-02303-A, along with her daughter Cassondra, and son, Jeremiah. DONE DEAL While serious negotiations didn’t begin until Jan. 3 in Miami, settlement has been on the table for two or three months, according to Watts. “We had been dancing around with both Ford and Firestone about, ‘Wouldn’t it be nice to get together and talk?’ ” he says. But he says the first meaningful talks were on Jan. 3, when he and Turner met with Firestone defense attorneys Patrick Zummo of Houston and Darrell Barger of Corpus Christi in Miami for several hours, and talked to Ford lawyers on the telephone. Watts and Turner, along with Zummo and Barger, were in Miami that day to depose a Firestone engineer. After the settlement talks — which occurred as the Orange Bowl was being played — Watts and Turner flew back to Corpus Christi, landing at about 3:30 a.m. on Jan. 4. Turner says he and Watts worked on trial preparation on Jan. 4, and Ford lawyers called and said they wanted to talk some more. The plaintiffs’ lawyers were in court the morning of Jan. 5 for a pre-trial hearing in the Bailey suit before 28th District Judge Nanette Hasette. In the meantime, Ford in-house lawyers John Mellen, assistant general counsel, and Peter Tassie and Jonas Saunders, both counsel, flew to Corpus Christi. Talks started at about noon at Watts’ office and continued until about 7 p.m. They took a short break, and then continued to talk over dinner at the Republic of Texas Steak House, Watts says. He says they broke for the evening, and talked again from about 9 a.m. until 2 p.m. on Jan. 6. They got on Watts’ private plane and flew to Houston. Watts says he and Turner met with Bailey for about a half hour and then the three Ford lawyers met with her briefly, an occasion that was videotaped and posted on Watts’ firm’s Web site. Watts says that while the Ford lawyers, his wife and his pilots went to dinner, he and Turner met with Firestone lawyer Zummo, a partner in Zummo, Mitchell & Perry, and Barger, a partner in Barger, Hermansen, McKibben & Villarreal. They negotiated for a few hours, but Watts says he had to take a break and fly home to beat some fog rolling into Corpus Christi. On Jan. 7, Watts says he and Turner met first with Barger alone because Zummo was driving to Houston from Corpus Christi with his “trial truck.” After Zummo joined them, the lawyers worked until 2:45 a.m. on Jan. 8, according to Watts and Turner. “At that point, we had a deal,” Watts says. Watts and Turner say the timing of Ford’s settlement on Jan. 6 and Firestone’s on Jan. 8 wasn’t by design. “It wasn’t really a deal where we settled with Ford and negotiated with Firestone. We just happened to get a deal done with Ford earlier. It could have very easily happened the other way,” Watts says. IN THE DETAILS Watts says it took so long to reach a settlement because the deal is detailed. He says it was complex for three reasons. First, he alleges both defendants are “highly culpable.” Second, Bailey was insisting the settlement not only include money, but some means to prevent others from being injured in accidents involving Ford Explorers and Firestone tires. Third, Watts says, it was clear that whether the suit went to trial or settled, it would be done under intense media scrutiny. It was the “perfect case” for a plaintiffs’ lawyer, he says, because of a combination of factors: The tire had not been repaired. It had tread. The SUV rolled on the road. The driver wasn’t speeding and wasn’t impaired. Bailey was wearing a seatbelt, and she was seriously injured. Bruce Kaster, a plaintiffs’ lawyer from Ocala, Fla., who has settled six tire-tread-separation suits with Ford within the last month, says a trial in Bailey was a no-win situation for Ford and Firestone. “It was like their worst nightmare. They’ve got Tab Turner and Mikal Watts. They’ve got Ms. Bailey, and they’ve got the entire American press corps in the audience,” he says. “I don’t think there’s any question they had to settle.” The in-house lawyers for Ford were not available for comment before press time on Jan. 11 to discuss Watts’ and Turner’s account of the settlement negotiations in Bailey. But Krusel, the Ford spokeswoman, confirms the dates of the talks. She says the company continues to work to resolve litigation filed over accidents involving Explorers and had been talking to Turner and Watts for weeks. She points out the meeting between the Ford lawyers and Bailey was not a condition of the settlement. “We asked to meet with Mrs. Bailey to express our condolences on a personal level,” she says. Watts says he promised the Ford lawyers he would not talk about their comments to Bailey. Firestone lawyer Zummo did not return a telephone message by press time on Jan. 11. Barger refers comment to a Firestone spokesman, who says essential terms of the settlement were reached on Jan. 7, although details weren’t complete until early on Jan. 8. Copies of the settlement agreements between Bailey and Ford and Firestone are posted on the Web site of Watts’ firm, http://www.harris-watts.com./ Also posted is a handwritten letter to Bailey from John Lampe, Bridgestone/Firestone’s chairman and chief executive officer. “There is nothing any of us at Firestone can say or do to return to you what you and your family have lost. All we can do is to try to help you take care of your needs and those of your family. I am hopeful that with this settlement you can begin to do so,” Lampe wrote. A trial in the Bailey suit could have set the parameters for settlements in litigation filed over tire-tread separation in the wake of Firestone’s voluntary recall last summer of ATX, ATX II and Wilderness AT tires. NHTSA has received reports of 148 fatalities allegedly involving tire-tread separations and more than 4,300 complaints involving 525 injuries. A number of suits, including several set for trial in Texas courts, have settled since the recall. Some, like Bailey, settled on the eve of trial. Kaster, a partner in Green, Kaster & Falvey, and Patterson, who has settled two similar tread-separation suits, say they doubt Ford and Firestone will let suits go to trial in the current environment. “Ford and Firestone are very, very aware of the public reaction to this crisis, and they would be very reluctant to try anything right now,” Kaster says. “But if someone makes demands that they can’t meet or there are lawyers that aren’t prepared … I think they will try cases.”

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