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Plaintiffs’ lawyers say Bridgestone/Firestone Inc. is using the tactic of legislative continuances to delay trials on tire-tread-separation suits in Texas. “That’s absurd. Offensive as well,” says Firestone defense attorney Vernon Hartline. A suit set for trial on Jan. 22 in San Antonio was continued after a member of the Texas Legislature was added to the trial team less than a month before trial. A similar motion to delay a second trial set to begin today in Edinburg, Texas, was pending at press time on Jan. 25. “All the indications we got is anything set between now and June is going to be delayed,” says Mikal Watts, a partner in Harris & Watts of Corpus Christi who has a number of tire-tread-separation suits. “I think it’s preposterous and atrocious for someone to use something that’s intended to serve the public to delay.” “I think it’s just a situation where they didn’t feel quite ready to go to trial and they pulled this trick out of the bag,” says plaintiffs’ attorney J. Scott McLain, who unsuccessfully challenged Firestone’s motion for legislative continuance in the San Antonio suit set for trial Jan. 22. In both suits, the state legislator is Rep. Juan Hinojosa, D-McAllen. Under the law, legislators may seek continuances for trials scheduled when the Texas Legislature is in session. Legislative continuances are at issue in the tire-tread-separation litigation because it could lead to months of delay — the session won’t be over until the end of May — for a trial in a suit involving Ford Explorers and Firestone tires. Those suits have been closely watched ever since Firestone voluntarily recalled 6.5 million tires in August 2000. While a number of suits in Texas and elsewhere have settled in the months since the recall, none have gone to trial, an event that would allow a jury to set the settlement value. Watts settled a high-profile suit in January with Ford Motor Co. and Firestone, averting a trial in Corpus Christi set to begin on Jan. 9, the first day of the legislative session. He says he was concerned that the defendants would seek a legislative continuance to delay that trial. “Steps were taken by the plaintiffs’ lawyers in that case to prevent that from happening. Ford and Firestone deserve credit for not invoking a legislative continuance to stop Ms. [Donna] Bailey’s day in court, but they also deserve scorn for doing the same to other similarly situated plaintiffs since then,” says Watts, who settled Michael George Bailey, et al. v. Ford Motor Co., et al., No. 00-02303-A, in a deal that keeps financial terms confidential. He will not describe what steps he took to avoid the legislative continuance. McLain, a partner in Reed, Carrera & McLain of Edinburg, is hopeful that appeals in his suit could lead to revisions of the law that generally mandate legislative continuances. He says he will appeal the ruling by 37th District Judge David A. Berchelmann Jr. of San Antonio granting Firestone’s motion for legislative continuance in his tread-separation suit. On Jan. 23, Berchelmann notified the lawyers that he is compelled to grant the continuance. McLain wants Berchelmann to clarify his ruling. When notifying lawyers on Jan. 23 of the continuance, the judge did not detail his reasoning. A CONTINUING ISSUE McLain represents a Laredo couple, Javier and Gloria Jimenez, whose daughter, Denise, died following an accident in a Ford Explorer in Webb County in March 1999. The plaintiffs also include their daughter, Melissa, who was injured in the accident. Their suit, Jose Javier Jimenez, et al. v. Bridgestone/Firestone Inc., No. 99-CI-11774, would have been the first tire-tread-separation suit involving a Ford Explorer and Firestone tires to go to trial since Firestone recalled 6.5 million tires in August 2000. McLain says he initially sued Ford Motor Co. and Firestone, but he settled with Ford following mediation in January. Terms of that settlement are confidential, he says. He says he was preparing for a hearing on Jan. 5 when he saw Hinojosa’s name on a service list, and wondered if Firestone would seek to add Hinojosa to the trial team and seek a legislative continuance. According to a transcript of that Jan. 5 hearing, McLain raised the issue, and Hartline told Berchelmann, “I will assure the court that anybody that would be brought in would not just be for the sole purpose of continuance.” Firestone filed a motion for legislative continuance on Jan. 10. Hinojosa did not return a telephone message left at his office on Jan. 24, but he said in an affidavit on Jan. 5 that he was hired on Dec. 28, 2000, and not for the purpose of obtaining a continuance. Hartline, a partner in Dallas’ Hartline, Dacus, Dreyer & Kern who is defending Firestone from a number of tread-separation suits in Texas, says he added Hinojosa to his trial team simply because he needed more lawyers. Hartline says he represents Firestone in several suits “literally from El Paso to Lubbock to Texarkana to Brownsville” and on more than one occasion recently needed a lawyer to pinch-hit when too many hearings were going on at once. Firestone recently added defense lawyers from Vinson & Elkins to help with some of its Houston area caseload. Hartline says he has not worked with Hinojosa in the past, but says the McAllen legislator came highly recommended by five or six lawyers. He says Hinojosa will work on several suits, but he declines to identify all of them. McLain says it seems clear to him that Hinojosa was brought in to delay the trial. In a memorandum to Berchelmann, he argues that Firestone’s right to due process would not be violated if the judge denies the motion for legislative continuance. He argues that the company is represented not only by Hartline’s firm, but also lawyers from V&E, Firestone’s national counsel, Holland & Knight, and the Law Offices of James D. Guess of San Antonio. While acknowledging that Waites v. Sondock, 561 S.W.2d 772 (Tex. 1977), grants a party’s right to a legislative continuance when its lawyer is a legislator who files an appropriate affidavit, McLain suggests that a judge can deny it if the legislator is untruthful about the reason for his hiring. He says Zachary v. Overton, 157 S.W.2d 405, 406 (Tex. App-Galveston 1941), would allow a judge to decide if the affidavit is truthful. He also says a judge could deny a continuance if it would infringe on the other party’s due process rights. “ELEVENTH-HOUR RETENTION” Plaintiffs’ lawyer Jaime Gonzalez, of Gonzalez & Associates of McAllen, is trying to avoid a legislative continuance that would delay a trial scheduled to begin today before 92nd District Judge Edward Aparicio. Gonzalez represents intervenors in Maria Del Carmen Rodriguez, et al. v. Bridgestone/Firestone Inc., et al. No. C-512-00-A. On Jan. 24, Gonzalez filed a motion to strike eleventh-hour counsel. In that motion, he argues that Firestone’s “eleventh-hour retention” of Hinojosa is designed to delay the trial and says the Nashville, Tenn.-based tire manufacturer is represented by Hartline and at least six other lawyers from three firms. He argues that Aparicio gave the suit a preferential trial setting for today, and that the judge has the authority to control his docket and rule that Hinojosa should not be allowed to represent Firestone in the suit. “The judge does not have to allow additional counsel. After all, how many lawyers does Firestone need to be adequately represented?” Gonzalez asks. Gonzalez says the plaintiffs in Rodriguez v. Bridgestone/Firestone have settled with Firestone. He represents the estate of Lucila R. Serna, who died following a rollover accident in her Ford Explorer in April 1999 in Mexico. Aparicio has scheduled a pretrial hearing in the suit for today. Gonzalez suggests that Firestone’s trial tactic could backfire if it’s too successful: “They can get a trial now one at a time or they can delay and be in a 30-trial battle at the same time.”

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