LITTLE ROCK (AP) - Cooper Tire knew or should have known that 1992 documents would become material in litigation against the firm and the material should have been preserved, U.S. District Court Judge George Howard Jr. said Wednesday.
The judge said sanctions are justified, but that he would not grant a request to preclude the testimony of Cooper's expert witness about the cause for the failure of specific tires mentioned in the lawsuit.
"Therefore, the court will authorize plaintiffs' argument on and a jury instruction regarding the adverse inference that can be drawn from the destruction of documents ... and will award reasonable attorney's fees and expenses incurred as a direct result of the destruction of the documents ...," the judge said.
He said attorneys for both sides should work together to draft the language of such a jury instruction.
Cooper said Howard's ruling "merely reflects a legal dispute over discovery of documents which are not relevant to the merits of the personal injury lawsuit ..." The company said it planned to appeal the ruling.
The lawsuit against Cooper was filed by the families of four Arkansans killed in a tire blowout accident.
In a pretrial hearing last week, Howard ordered lawyers for both sides to meet within 24 hours to try to work out a settlement. But Howard's office said Monday that the attorneys notified the court that a settlement had not been reached. The trial is scheduled for Helena on May 28 and another pretrial hearing is set for Thursday morning.
The families of those killed in the 1998 accident claim that tread separation caused the crash that killed Scharlotte A. Hervey, 37, her husband Edward, 44, and son, Onterio Jamar Miller Hervey, 15, all of Little Rock, and Lane A. Whitaker, 23, of Cabot. Two other sons of the Herveys, Demario, then 13, and Rashad, then 7, were left paralyzed from the waist down.
The Hervey family was on Interstate 40 in east Arkansas, heading to a graduation in Helena, when the tire blowout caused their car to collide with Whitaker's car.
The plaintiffs claim a procedure known as awling, in which workers at the company's Tupelo, Miss., plant used an ice-pick like device to puncture plastic air bubbles in tires, caused the tread separation.
Cooper attorneys have said the tire was damaged during the normal course of driving. The company has since stopped using the awling procedure.
Attorneys for the families asked Howard to bar Cooper's tire experts from testifying at trial because of missing documents. They allege Cooper officials destroyed production records from the early 1990s even though the information had been requested in litigation. Cooper says it is uncertain whether the documents could have pertained to the case.
The plaintiffs said that Cooper employees Cathy Barnett and Sheila Hall burned certain documents in the summer of 1999 with encouragement from Quality Assurance Manager Hogan Cooper.
"Based on the current record, there is no evidence that Hogan directly or indirectly asked Barnett to go to the warehouse and destroy any documents in connection with this lawsuit," Howard said. "Instead, the evidence is that Barnett ... initiated the destruction of documents with the assistance of Hall ... to stay out of trouble if it were discovered that Barnett had not followed the retention policy."
Howard said there was no evidence that anyone in a supervisory position at Cooper authorized or directed the decision by Barnett and Hall to burn documents. Therefore, he said, "the court cannot find that defendant should be held accountable for the document burning."
He also rejected plaintiffs' argument that Cooper representatives lied in depositions regarding awling.
First Published May 23, 2002, 11:43 a.m.
