The U.S. Supreme Court announced today that it will not review a lower court ruling in the Suzuki v. Consumers Union case.
Consumers Union (CU) had petitioned the U.S. Supreme Court in August to settle a legal conflict among the U.S. Circuit Courts on whether a publisher can be forced to go to trial in a libel case even when the defendant's evidence illustrates in advance that the case has no merit.
"It's a shame that the Supreme Court decided not to weigh in on this important question of legal procedure that affects our free speech rights. Their decision says nothing about the facts of our case. But we believe it hurts consumers to let the 9th Circuit ruling stand with its chilling effect on those who report about safety and health," said Jim Guest, President of Consumers Union, the nonprofit publisher of Consumer Reports.
"Consumers Union will not back down and we're ready to face a jury," added Mr. Guest. "We're confident that we'll prevail because the fact is, when we put four SUVs through identical and objective emergency handling tests on the very same course, the Suzuki Samurai tipped up severely and repeatedly while the other three kept all four wheels on the ground. The Samurai also tipped up when evaluated by other reviewers, and rolled over on American highways where hundreds of deaths and injuries were the result. Suzuki's own internal memos show they knew about the rollover problem and sold the Samurai anyway."
The case will be returned to the federal district court that previously dismissed the case in 2000 as being without sufficient merit to warrant a trial--the court of Federal Judge Alicemarie Stotler in the Central District of California (Orange County), the home county of Suzuki of America.
When the sharply divided U.S. Court of Appeals for the Ninth Circuit ruled in May that the previously dismissed Suzuki v. CU case should go to trial, it did so by using a narrow standard inconsistent with the broader standard used by other circuits. The standard applied makes it very difficult to get meritless libel cases involving public figures dismissed prior to trial. The Ninth Circuit ruled that when a publisher defendant seeks "summary judgment" in a libel case - i.e., a determination that there is not enough evidence to merit a trial -the trial court should consider only the plaintiff's claims and evidence and not weigh even the uncontradicted evidence presented by the publisher defendant.
The Ninth Circuit ruled that the trial judge should review the entire record only after a trial verdict has been reached--often years and millions of dollars later. In contrast to other defamation case rulings in other federal circuit courts, the majority opinion stated:
"While it may be true that CU's evidence of meticulous reporting ultimately has more weight than Suzuki's evidence of actual malice, that is not a question to be resolved here."
"Every judge who allowed full consideration of both Suzuki's evidence and ours has ruled that the case should be dismissed because the charges are not supported by the record. We have every reason to believe that a jury would come to the same conclusion," said Michael N. Pollet, CU's attorney for 30 years, who successfully argued the groundbreaking Bose v. CU case before the U.S. Supreme Court.
At trial, CU will also be represented by the Burlingame, California-based law firm of Cotchett, Pitre, Simon, & McCarthy.
Dozens of leading media organizations, the Insurance Institute for Highway Safety and the Consumer Federation of America had filed amicus (friend of the court) briefs urging the U.S. Supreme Court to hear the case because of the potential chilling effect on publishers and consumer groups.
In 1996, Suzuki sued CU after its magazine - Consumer Reports - briefly mentioned its 1988 findings on the Suzuki Samurai's rollover risk.
For additional background information on Suzuki v. CU, including the history of the case and legal documents (including the Cert Petition), please consult our Web site at: www.ConsumersRightToKnow.org.
Contacts at Consumers Union: ----------------------------
Betsy DeSoye or Linda Wagner, 914/378-2565, righttoknow@cu.consumer.org
Contact at Cotchett, Pitre, Simon & McCarthy: ---------------------------------------------
Joe Cotchett, 650/697-6000
Contact information for Organizations Filing Amicus Briefs: -----------------------------------------------------------
Insurance Institute for Highway Safety, Russ Rader: 703/247-1500 (rrader@iihs.org)
Counsel representing media organizations: David A. Schulz 212/850-6103 (dschulz@lskslaw.com), Lee Levine 202/508-1100
Consumer Federation of America: Stephen Brobeck, Executive Director, 202/387-6121
Lucy Dalglish, Executive Director, Reporters Cmte. For Freedom of the Press, 703/807-2100
Additional Resources: ---------------------
David A. Strauss, Professor of Law, University of Chicago Law School, 773/702-9601
Erwin Chemerinsky, Professor of Law, University of Southern California Law School, 213/740-2539
Jim Wheaton, Senior Counsel, First Amendment Project and visiting lecturer at Stanford University, 510/208-7744 FURTHER BACKGROUND FROM CONSUMERS UNION (CU), THE NONPROFIT PUBLISHER OF CONSUMER REPORTS
For the past 15 years, Consumers Union has worked to put useful information about rollover risks into the hands of consumers. In October 2003, the federal agency charged with ensuring highway safety (the National Highway Traffic Safety Administration, or NHTSA) finally announced a new government test for rollover that will provide such information to consumers, starting in January 2004. CU has pressed for these tests since 1996.
"NHTSA's new dynamic rollover tests will give consumers a valuable new tool for comparing vehicle safety and ultimately save lives," said CU Senior Vice President for Technical Policy, Dr. R. David Pittle when NHTSA announced the new tests. Dr. Pittle first confronted this important consumer issue in 1988, when CU's testing of four sport-utility vehicles resulted in a tip-up by one of the models tested--the Suzuki Samurai.
In the July 1988 issue of Consumer Reports, Consumers Union published the results of its tests of four SUV models, including the 1988 and 1988 1/2 versions of the Suzuki Samurai. The Samurai had tipped up severely and repeatedly during testing on CU's emergency avoidance maneuver course, while the three other SUVs made it through the same course with no tip-ups at all. Consumer Reports judged the vehicle "Not Acceptable" due to the risk of rollover. In 1996, Suzuki sued CU over a brief reference to the Samurai testing in a 60th Anniversary timeline published in the January 1996 issue of Consumer Reports.
In May 2000, Federal Judge Alicemarie Stotler in the Central District of California (Orange County), the home county of Suzuki of America, granted CU's motion for summary judgment and dismissed all of Suzuki's claims. In her ruling, Judge Stotler told Suzuki that it did not have the evidence necessary to warrant putting CU on trial over its 1988 report and its subsequent references to the Samurai. She held that CU's differences with the government over rollover testing were not evidence of wrongdoing because "...part of the First Amendment's protection has to do with disagreeing with the government." Judge Stotler concluded that "...a jury could not reasonably find that plaintiff proved its case by the quality and quantity of evidence required by governing law."
Although the trial court (Judge Stotler) granted CU's motion for summary judgment in Suzuki v. CU, a divided panel of the 9th Circuit Court of Appeals (2-1) reversed that decision in June 2002, with a strong dissent by Judge Warren Ferguson. Judge Ferguson wrote, "The grant of summary judgment was necessary both to avoid the inhibition of free speech by the media and to protect public safety and health." (p. 652) CU's request to the entire 9th Circuit to rehear the panel decision was denied on May 19, 2003 by a 13-11 vote, with a forceful dissenting opinion written by Judge Alex Kozinski, who was joined by ten other 9th Circuit judges.
Judge Kozinski, who was appointed to the 9th Circuit by former President Ronald Reagan, wrote the following comments in his dissenting opinion:
"This is not a case where a defendant fabricates results and then purports to rely on them..." (from p.6468)
"If Suzuki can get to trial on evidence this flimsy, no consumer group in the country will be safe from assault by hordes of handsomely paid lawyers deploying scorched-earth litigation tactics." (from p. 6476)
"I find it incomprehensible that a review truthfully disclosing all this information could be deemed malicious under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). If CU can be forced to go to trial after this thorough and candid disclosure of its methods, this is the death of consumer ratings: It will be impossible to issue a meaningful consumer review that a band of determined lawyers can't pick apart in front of a jury. The ultimate losers will be American consumers denied access to independent information about the safety and usefulness of products they buy with their hard-earned dollars. The majority sets a dangerous precedent, and the full court errs grievously by failing to take the case en banc to correct the error." (from p. 6460)
"The practical effect of the panel's decision is that our review for sufficiency at summary judgment is now governed by one standard, while our review after a jury verdict is governed by another. Cases will now often proceed to trial, even though the court can tell ahead of time that the plaintiff's evidence will not support a jury verdict under New York Times**. What possible purpose is served by conducting such mock trials?...That a plaintiff's suit ultimately fails after trial is little solace to a defendant crushed by the sheer expense of litigation...Good for lawyers, but not so good for free expression."(from pp.6463-6464) (**i.e. New York Times Co. v. Sullivan)
"I have read CU's review of the Samurai and Suzuki's criticism of its methodology. After all that, I can only say I would long hesitate before letting anyone I care about drive or ride in one of those vehicles." (p. 6479)
(NOTE: The entire opinion of Judge Kozinski, along with the amended, concurring, and dissenting opinions of the three-judge 9th Circuit panel can be found in the Legal Documents section of the web site, www.ConsumersRightToKnow.org.)
On May 30, 2003, the U.S. Court of Appeals for the 9th Circuit granted CU's request to halt any trial while CU petitions the U.S. Supreme Court to review the appeals court ruling. Consumers Union filed its petition with the Supreme Court in August 2003.
In April 2000, a federal court jury in Los Angeles ruled in favor of CU in a similar suit filed by the Isuzu Motors Limited over a report that the 1995-96 Trooper was prone to tip up severely in CU's test. Because of the important First Amendment concerns implicated, these cases have attracted significant media attention.
"This legal battle is important," said CU President Jim Guest, "not only for Consumers Union and Consumer Reports, but for every American concerned about the rights of an unbiased organization to test products independently and to speak out in the interest of safer products. The First Amendment guarantees the right to report our independent findings, even when our judgment differs from that of the government or the company in question. The record of our testing of and publication about the Samurai demonstrates our high testing standards and the consistent concern in Consumer Reports for accuracy, fairness, and impartiality. Our product ratings are based on our test and survey results, and we make our judgments solely for the benefit of consumers."
What Suzuki Knew & When They Knew It
-- Lawsuits had already been filed by consumers injured or killed in Samurai rollovers prior to CU's 1988 tests.
-- At least 213 people have died and about 8,200 have been injured in rollover accidents in the Suzuki Samurai. Suzuki has settled--quietly, out of court--at least 176 lawsuits for monetary damages believed to total tens of millions of dollars. Suzuki has kept the records of these settlements sealed, keeping the public from knowing the full nature of the hazard.
-- In the case Malautea v. Suzuki, the U.S. Court of Appeals for the 11th Circuit found that Suzuki had engaged in an "unrelenting campaign to obfuscate the truth." Suzuki deliberately withheld from the court "damaging evidence regarding General Motors' refusal to market the Samurai in the United States, " because of rollover concerns.
-- Suzuki's own internal documents prove the company knew of the Samurai's rollover problem, but marketed the car anyway. Quoting a Suzuki memorandum dated July 14, 1985, "It is imperative that we develop a crisis plan that will primarily deal with the 'roll' factor. Because of the narrow wheel base, similar to the Jeep, the car is bound to turn over." Suzuki misled the government and the public about this fact.
-- Notes from a Suzuki meeting in July 1985 state: "IT IS IMPERATIVE THAT WHENEVER THE CAR IS PHOTOGRAPHED, THAT ALL FOUR WHEELS BE ON THE GROUND!!!" (All caps and exclamation points, as in the original.)
-- At least nine news organizations other than Consumer Reports published or broadcast reviews of the Samurai between 1986 and 1989 warning of its stability problems or tippiness. These include the Washington Post (Warren Brown), NBC-TV (3-part affiliate-station series in early 1988 by correspondent Steve Handelsman), The New York Times (Marshall Schuon), and Which? magazine published by the Consumers Association of the U.K.
-- The Center for Auto Safety and the Safety First Coalition (SFC) petitioned the National Highway Traffic Safety Administration (NHTSA) for a defect investigation of the Samurai. While NHTSA did not grant the petition in the end, the agency acknowledged that the Samurai's light weight and high maneuverability "can cause the inexperienced driver to overreact to a given situation and induce rollover."
-- Several insurance companies refused to cover the Samurai or charged higher premiums because of their concerns.
-- In 1988, the Attorneys General of seven states charged Suzuki with false and misleading advertising as to the Samurai's safety and rollover danger. Suzuki paid $200,000 to settle the claim and agreed to include a warning in future advertising regarding potential Samurai rollovers.
-- Despite all of these warnings, Suzuki continued to market the Samurai until 1995 and has mounted intensive and costly efforts to silence rollover victims and product reviewers such as Consumer Reports.
Background about Consumers Union, SUV Handling, and NHTSA
Since 1973, CU has used a double-lane-change emergency avoidance maneuver to evaluate the emergency handling characteristics of all vehicles it tests, which it now refers to as the long-course avoidance maneuver. In the long course, a test vehicle is driven through a 240-foot-long course, marked with small pliable traffic cones, at progressively faster speeds until CU's engineers can establish the maximum speed at which it can navigate the course without knocking over cones. This defines its handling limits. The vehicle is also rated on how stable, predictable, and forgiving it is.
Because taller vehicles are inherently more prone to tipping up, CU also runs SUVs, minivans, and pickups through what is referred to as the short course avoidance maneuver to uncover any unusual handling problems. CU has run vehicles through the short course since 1988. This course's overall length is the same as the long course, but the cones are repositioned so that the vehicles are driven through a series of sharper turns. The speed at which a test vehicle completes the short course is not as important as what happens when it exceeds its handling limits. Typically, the vehicle will slide or skid sideways, knocking over cones. In our opinion, this is a more controllable situation than a tip-up or rollover.
CU has used both tests to evaluate the handling characteristics of SUVs, minivans, and pick-up trucks. Of the 153 vehicles (SUVs, minivans, and pick-up trucks) tested in the short course between 1988 and the October 2003 issue of Consumer Reports magazine, only three, the 1988 Suzuki Samurai, the 1995,1996 Isuzu Trooper (and its twin the 1996 Acura SLX), and the 2001 Mitsubishi Montero Ltd., have been judged to display "Not Acceptable" emergency handling performance. Several other vehicles have been judged "Poor" in emergency handling performance.
CU has been a proponent of safer motor-vehicle design since the 1930s. At that time, CU recommended larger auto windows to reduce blind spots, and bumpers and horns to reduce accident risk. Over the years, it has been an active force for improvements in auto safety. CU has tested and encouraged the use of seat belts, anti-lock brakes, child-safety seats and electronic stability control systems. It reports regularly on government and insurance industry crash test results, and has promoted the use of air bags while encouraging improved design of these safety devices.
One major thrust of CU's current auto-safety activity is support for a government program to provide auto-buyers with information on comparative risks of rollover among vehicles offered to the consumer market. In 1997, the U.S. National Highway Traffic and Safety Administration (NHTSA) granted CU's petition for the development of such a test. When granting the petition, NHTSA Administrator Ricardo Martinez, M.D., said that "Consumers Union has been a welcome partner that has focused the public's attention on rollover and provided a wealth of consumer information to the car-buying public." On May 25, 2000, NHTSA proposed a 5-star rating program based on a vehicle's Static Stability Factor (SSF). The program was intended to help consumers compare the relative rollover propensity of all vehicles. In January 2001, NHTSA finalized the SSF-based star-ratings program.
2003
After the Ford/Firestone hearings explored the issue of SUV rollovers, Congress passed the Transportation Recall Enforcement, Accountability and Documentation (TREAD) Act signed by President Clinton in November 2000, and directed NHTSA to develop a dynamic test for assessing rollover propensity and provide that information to consumers. Consumers Union submitted comments to NHTSA on the agency's proposed rollover test program.
While NHTSA was working on its initial proposal, the National Academy of Sciences (NAS) came out with a report in February 2002 that concluded that dynamic on-road testing of vehicles was a necessary addition to the current SSF system used by NHTSA to evaluate rollover propensity. The NAS report also stated the committee could not identify "any insurmountable engineering barriers to the development of a representative dynamic test (or tests) that would differentiate meaningfully among vehicles." Consumers Union engineers testified before the NAS in April 2001.
In October 2003, NHTSA released its new dynamic rollover resistance test. The agency selected the fishhook test; during testing each vehicle is loaded with the equivalent of five adult-size passengers. This is a reverse-steer driving maneuver designed to provoke a possible tip-up in a severe but real world steering scenario. The agency says it will release results of this new dynamic testing for 2004 models this winter. In addition to the fishhook driving maneuver, and SSF, NHTSA is in the process of developing handling tests to supplement the rollover resistance ratings. This suite of tests--the SSF, Fishhook maneuver, and handling test (to be developed) is similar to those proposed by Consumers Union in its comments to the agency in November 2002.
CU's Senior Vice President for Technical Policy, Dr. R. David Pittle, said, "We are very pleased that NHTSA has adopted a rigorous testing protocol to judge a vehicle's stability and rollover propensity--and that the agency has pledged to make detailed test results available to consumers. This information will help consumers to select safer vehicles among individual makes and models within vehicle categories."
Consumers Union, the publisher of Consumer Reports, is an independent, nonprofit testing and information-gathering organization, serving only the consumer. We are a comprehensive source of unbiased advice about products and services, personal finance, health, nutrition, and other consumer concerns. Since 1936, our mission has been to test products, inform the public, and protect consumers. For online access to Consumer Reports, visit www.ConsumerReports.org.
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