South Carolina high court allows attorney-fraud claim in Ford rollover case.

In a ruling that could affect numerous closed cases involving rollovers of Ford's popular Bronco II, the South Carolina Supreme Court recently ruled that there is sufficient evidence to suggest that attorneys for the automaker had committed fraud on the court by suborning perjury and concealing documents related to its star witness. (Chewning v. Ford, No. 25627, 2003 WL 1873520 (S.C. Apr. 14, 2003).)

The witness, David Bickerstaff, had originally been identified by plaintiff attorneys in other rollover cases as a former employee of the automaker who had been critical of the Bronco II's stability. Bickerstaff expressed his criticism in a deposition but allegedly changed his testimony once Ford began paying him to testify as a defense expert.

"Bickerstaff had been disclosed to plaintiff attorneys in Texas as a fact witness--someone whose name showed up on Ford engineering documents," said Edgar Heiskell, an attorney in Charlottesville, Virginia, who has litigated numerous Ford rollover cases. "I couldn't understand how Ford could justify paying a fact witness thousands of dollars a day unless they had a need for him to change his testimony or his view of the facts, which is clearly what happened in this case."

Bickerstaff's favorable testimony for Ford had significant implications for many rollover cases nationwide, said Mark Hardee, who represented the plaintiff in the South Carolina case. "Some people settled, and we are saying that they settled on a fraudulent evidentiary record, that Bickerstaff's testimony throughout the country created an atmosphere where plaintiffs took less money than their cases were worth," Hardee said. Other cases, including the one brought by his client, Ray Chewning, went to trial.

"In the Chewning case, Mr. Bickerstaff actually came to South Carolina, testified--we claim testified falsely--after being paid by Ford, and they got a defense verdict," Hardee said.

The South Carolina decision focused on a letter, uncovered by Heiskell in 1995, suggesting a financial agreement between Ford and Bickerstaff, who worked intensively on the development of the Bronco II.

The letter, from Bickerstaff to Ford and dated June 20, 1990, stated, "I suggest you retain our services to assist you in preparing myself, in Ford's favor, as we discussed per out phone conversation of 6/18/90." According to the complaint, Bickerstaff also offered his expert testimony when he allegedly met with Ford attorneys in a hotel room in Dearborn, Michigan.

However, during a July 1990 deposition in a Bronco II rollover case, he testified that while working for Ford he had expressed concern to management about the vehicle's "stability index"--a measure of its resistance to rollover--which he described as an important safety factor.

"Apparently Ford had not taken him up on the offer" to testify as a paid expert, said Hardee. According to the complaint, immediately after the damaging deposition, Bickerstaff started receiving large payments from the automaker that over the next four years totaled between $4 million and $5 million. Ford claimed the payments were for consulting work and for Bickerstaff's expert testimony.

"Plaintiff lawyers throughout the country did not know about this offer to Ford," said Hardee. "They did know that he went from being what they thought would be a good witness [for plaintiffs] to a devastatingly bad witness." According to Hardee, Bickerstaff's testimony in subsequent cases changed considerably from his earlier deposition: He claimed that the stability index was an arbitrary measure and that the Bronco II was an "absolutely safe vehicle."

Because Bickerstaff was such an effective witness, his testimony could have affected several hundred cases just by word of mouth, Heiskell estimates.

"Any plaintiff attorney who would do his research would realize or be told by other plaintiff attorneys who had been up against Bickerstaff that he's Ford's star witness, that he makes a good impression with jurors, that he whips out these multicolored pens and pencils and can draw a suspension system from scratch in about five minutes, and that he is a very, very convincing witness."

Heiskell learned of the letter's existence during a November 1994 deposition when he asked Bickerstaff about his conversion from a fact witness to an expert and whether he had any retainer agreement or communication with Ford setting forth the terms of his testimony. Bickerstaff testified that he thought there might be a letter or a memo.

"I made a request at the deposition for a copy of the letter," Heiskell said. "Ford stonewalled me for a while, and I filed a motion to compel." As Heiskell was walking into the hearing on his motion to compel in April 1995, Ford's lawyer handed him the letter.

Chewning's products liability claim against Ford resulted in a defense verdict in 1993. Five years later, he filed an action against the auto manufacturer and Bickerstaff, alleging that the expert witness had committed perjury and that Ford had concealed important documents during discovery. The trial court threw out the claim, but an intermediate appeals court reinstated it.

The state supreme court affirmed the decision, concluding that "the subornation of perjury by an attorney and/or the intentional concealment of documents by an attorney are actions which constitute extrinsic fraud." An attorney who engages in such conduct "effectively precludes the opposing party from having his day in court," wrote Justice E.C. Burnett.

The court also concluded that Chewning's allegations support a claim of fraud on the court with sufficient particularity.

"Although it fails to identify any specific portion of Bickerstaff's trial testimony as perjurious, the amended complaint alleges Ford's attorneys hired Bickerstaff to testify falsely during numerous Bronco II trials," Burnett wrote. "Under this allegation, most all of Bickerstaff's testimony--including that presented at Chewning's trial--was perjurious,"

Heiskell said Bickerstaff testified at trial or in deposition or was disclosed as an expert witness in at least 200 Bronco II cases.

"We have seven cases pending right now other than Chewning, but none of them are in South Carolina," said Hardee. "But we certainly hope that the courts in Texas and Oklahoma would be persuaded by the reasoning of the South Carolina Supreme Court."