“Hike” Heiskell won’t roll over for Ford Motor Company

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The second-floor office is no bigger than 15′ x 20′, but it opens onto the world through a floor-to-ceiling window overlooking Court Square. A bookcase laden with few books, but with 30 3"-thick binders labeled “Ford Motor Co.,” “Bronco II,” “Exhibits,” “Cases,” “Decisions” and the like, serves as a backdrop to a large, wooden lawyer’s desk. A small tennis trophy with a marble base and golden racquet, two model planes and a framed photo of fighter jets break the imposing monotony of the meticulously labeled notebooks.

   Sixty-four-year-old Edgar “Hike” Heiskell is at the center of this scene, his legs crossed, hands loosely clenched in front of his chest. He’s wearing khakis into which he’s tucked a blue and white pinstriped shirt that sharpens his already sharp blue eyes. Patterned on his tie, a fox looks up and salivates over a bluebird on a branch. The fox salivates and salivates, but in each mini-scenario the bird escapes death.

   He may not be the Hollywood model of a rabble-rouser, but on the national auto industry stage Heiskell, a personal injury lawyer with Michie, Hamlett, Lowry, Rasmussen, & Tweel, is one of Detroit’s biggest and most persistent foes.

   “If I’m not public enemy No. 1, I’m in their Top 10,” he says quietly, with a hint of a smile and a touch of a Southern accent.

   Over the past decade Heiskell has prosecuted Ford Motor Company in 34 cases nationwide involving Bronco II and Explorer rollovers. The second-largest car company in the nation, Ford is No. 4 on the 2004 Fortune 500. Its products include Lincoln, Mercury, Mazda, Volvo, Jaguar, Land Rover and Aston Martin. Thirty-two of Heiskell’s cases have garnered settlements or jury verdicts in his clients’ favors totaling an estimated $22 million in payments and punitive damages. He’s definitively lost only two cases to the automotive giant.

   Heiskell is back in the news again of late, representing the victim in a reopened Ohio Bronco II case from the mid-’80s. A toddler when the accident happened, the victim is now a young man, and on his behalf Heiskell will argue that Ford rushed to settle before all the evidence came to light and that the original settlement does not sufficiently compensate the victim for his injuries. This case is Heiskell’s latest in his crusade to hold Ford’s feet to the fire.

    “When I realized Ford had made decisions that injured women and children around the country, that was the starting point. It just kept building in me,” he says. “Building and building the desire to hold Ford accountable.”

 

Growing up in Morgantown, West Virginia, in the 1940s and ’50s, the son and grandson of prominent local surgeons, Heiskell’s childhood was, as he describes it, “affluent.” He attended West Virginia University and did a stint in the Air Force before coming to UVA for law school, graduating in 1966. Heiskell then returned home and at the tender age of 31 became West Virginia’s first Republican secretary of state since Herbert Hoover.

   But the trial lawyer in him wouldn’t give up and he returned to private practice in 1975. A lifelong Republican, Heiskell was hardly thrilled about the way his party portrayed trial lawyers as the scum of the earth, with John Edwards as the dirty poster boy in the 2004 presidential election.

   “It really troubles me that my party has become the party of corporate America,” he explains. “Government has not been on the side of the little person. Even more so now after five years of the Bush Administration.”

   Heiskell himself has not always been on the side of the “little person.” In the early ’80s he made a name for himself representing R.J. Reynolds, the second-largest tobacco company in the United States, maker of Winston, Camel, Salem and Doral cigarettes.

   “He’s a zealot advocate,” says Dave Hendrickson, Heiskell’s former Morgantown partner. “He leaves no stone unturned. Whomever he represents, it’s his client and he represents them with passion.”

   The aim of Heiskell’s passion changed forever on January 5, 1991. That night, while going 42 miles per hour in his Bronco II, Heiskell’s friend and children’s gymnastics teacher, Gene Diaz (pronounced Die-ez), hit a patch of black ice on a bridge. The vehicle slipped sideways and then rolled over one and a half times. Diaz’s seatbelt malfunctioned and he was thrown onto the blacktop.

   “I read about it in the morning newspapers in Morgantown and didn’t realize how badly injured he was because the newspaper said he had survived,” remembers Heiskell. It was not until later the next day, upon visiting Diaz in the hospital, that the gravity of the situation hit home. “We followed his condition from that point on. It was a long, long period.”

   Diaz lay in a coma in the hospital for eight weeks. Eventually he rallied, but has been quadriplegic ever since.

   At that time, Bronco IIs had been under fire for their inordinately high rollover rate. According to one of Ford’s own experts, Michele Vogler, in six states alone as of 1997 there were 5,672 Bronco II rollovers and, according to National Highway Traffic Safety Administration (NHTSA) statistics, the Bronco II had the highest rollover fatality rate of all SUVs. For comparison, the 1988 Bronco II had a static stability factor (SSF) of 0.99, as opposed to the 1987 Jeep Wrangler, which had an SSF of 1.16. The higher the SSF, the lower the rollover risk.

   After bad publicity from Consumer Reports, Ford discontinued the Bronco II in 1990, replacing it with the Ford Explorer. The Explorer has since become the most popular SUV on the market, selling more than 5 million automobiles since the first model. There are still approximately 200,000 Bronco IIs on the road today.

   Prosecuting the big car companies for rollover incidents first burst into the public spotlight in the 1960s with the book Unsafe at Any Speed, by then-young consumer advocate Ralph Nader. The book criticized rollover rates in the General Motors Corvair sports car. The fallout brought fame and fortune to Nader; it also prompted the establishment of NHTSA.

   In his preface Nader writes, “A great problem of contemporary life is how to control the power of economic interests which ignore the harmful effects of their applied science and technology. The automobile tragedy is one of the most serious of these manmade assaults on the human body.”

   According to the federal government, rollovers kill more than 10,000 people a year. Light trucks, especially SUVs, have 127 percent as many rollover crashes as passenger cars.

   Oblivious to the Bronco II controversy before Diaz’s accident, Heiskell filed suit on his behalf against Ford, arguing that an engineering defect had caused the rollover that left Diaz in a wheelchair. It was a year of full-time work sorting through documents and depositions (a trip to Heiskell’s “war room” today reveals boxes upon boxes of paper piled to from floor to ceiling) before the case went to court.

   “I saw him getting actually more angry at [Ford],” Diaz recalls about watching Heiskell’s evolving spectrum of emotions throughout preparations. “From that point on he’s gotten more and more infuriated with their attitude: the fact that it’s criminal and they know it. He takes it very, very personally.” The case was settled out of court and thus the settlement is not public information, but both Diaz and Heiskell agree that it was “substantial.”

   From that case came another. At this juncture, Heiskell’s firm at the time said, “No more Ford cases.” The firm was regional counsel for Dupont, a supplier for Ford. Instead of kowtowing, Heiskell left his $100,000-a-year partnered position and went out on his own.

   “After [the Diaz] case,” he says, “came another and another and another.” And he took them all. In the course of a single year, Heiskell had gone from standing by Goliath’s side to standing squarely beside David’s.

   His work has been featured in The New York Times, Lawyers Weekly USA, Trial: Journal of the Association of Trial Lawyers of America, Trial Excellence, on “CBS Nightly News,” and in the 2001 book, Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law by Carl T. Bogus.

   “He was very sensitive to the fact that I wanted to get the word out about the Bronco II,” says Diaz. “One of the things I wanted was to raise awareness. He’s done that through the media consistently [since taking my case].”

   Heiskell now carries a load of about six cases a year, almost all against Ford. As for Diaz, Heiskell visits him every time he’s in Morgantown. They talked on the phone just last month.

 

In April 1987, at the same time when Heiskell was still defending R.J. Reynolds against smokers blaming big tobacco for their smoking-related ailments, 2-year-old Adam Matayszek (pronounced Mata-zak) was getting thrown out the window of his family’s Bronco II and onto Interstate 77 in Cleveland, Ohio. The SUV rolled three times across the highway after Adam’s father made a quick right-hand maneuver.

   In the wake of the accident Ford’s attorney and Matayszek’s father, unaware of the Bronco II’s design flaws, rushed to a settlement based on erroneous health reports that Adam’s prognosis was “excellent.” However, the child’s condition worsened in the years that followed. According to Matayszek’s rehabilitation doctor, he now routinely experiences attention deficit problems and daily seizures.

   On behalf of Matayszek, Matayszek’s guardian successfully reopened the case in the late ’90s. At that time, Heiskell had recently won a $17.5 million Bronco II settlement, news that made national headlines. As a result, Matayszek’s guardian brought Heiskell on board in 2000. When the case goes to trial later this year Heiskell plans to seek in excess of $20 million on Matayszek’s behalf.

   This case resembles many of Heiskell’s other clashes with the corporation. Based on a library of more than 700,000 pages of documents (“A lot of paper. A lot of work. A lot of work reading that paper,” he jokes), Heiskell’s argument against Ford is singular: Ford knew from the first testing sessions that it had a defective product and that they were marketing that product to American families. The company then deliberately hid this information from the public.

   Since the lawsuits started rolling in, Ford, too, has maintained a single, three-fold defense: Driver error, free market economy and the way the cookie crumbles. They were simply giving the people what they wanted. Moreover, some car out there has to have the worst rollover ratings. Too bad it’s ours, but that’s life.

   Ford first conceived of the Bronco II in the early ’80s as a way to get on the SUV bandwagon that began with the wildly popular Jeep CJ. In typical Henry Ford “one-size-fits-all” fashion, Ford designed the vehicle with what they already had on hand: the Ford Ranger pickup. Put in a backseat and covered roof in lieu of the Ranger’s truck bed and, presto, a ready-made SUV. This proportional tweaking threw off the center of gravity that made the Ranger a safer ride, encouraging the Bronco II’s habit of tipping over, then rolling over.

   When Ford turned over its Bronco II library to Heiskell, 53 key documents were missing. Among them, a risk assessment of the Bronco II conducted by Ford when, out of fear for the safety of their test drivers, they halted testing in the spring of 1982.

   Stepping from behind his desk, Heiskell hauls out a small television and VCR, perching them on the edge of his desk. He then slides in a VHS tape of a Ford Bronco II safety test.

   After a moment of blue screen and static, a sunny day at Ford’s testing grounds in Minneapolis comes into focus. Part of the pavement has been sprayed with water and left to freeze, creating a thin layer of black ice on the road. The Bronco II’s entry speed is 18 mph. As soon as the vehicle hits the ice it starts to slide. The test driver makes a corrective steering maneuver (Heiskell repeatedly compares it to swerving to avoid a kid on a bicycle) and the vehicle starts to tip. Outriggers attached to the sides of the car stop it from going all the way over.

   The test takes no longer than 30 seconds. Heiskell rewinds and watches again. And again. And again.

   “They put almost 800,000 American people into this vehicle,” he says, shaking his head and lingering, almost reverently, on the phrase “American people.”

   Initially, Ford engineers had presented Ford with five alternate designs, three of which widened the track width, but Ford stuck to its original design. According to Heiskell’s calculations, widening the track 3" to 4" would have put the car in the same category as the Jeep Cherokee, which has 20 percent the Bronco II’s rollover rate.

 

The major breakthrough in the Bronco II controversy came when Heiskell discovered Ford had been paying off a former staff engineer to testify in the corporation’s favor. David Bickerstaff originally criticized the Bronco II design, recommending that Ford widen the vehicle’s track width to allay stability concerns. In his court testimonies in rollover cases, however, Bickerstaff made a 180 from his original assessment. On the stand, Bickerstaff testified that the Bronco II was O.K. Such testimony enabled Ford, in the original Matayszek case, for example, to conceal Bronco II design defects.

   Suspicious, Heiskell issued a subpoena for an “agreement” between Bickerstaff and Ford he’d heard about in the Diaz case.

   “I feel I should be reimbursed for my current rate at $4,000 per day in Ford’s favor,” writes Bickerstaff in the document Ford’s lawyers produced. Following a paper trail, Heiskell then discovered that the deal Bickerstaff wheedled ultimately netted him $5 million between 1990 and 1998; it netted Ford supposedly legitimate expert testimony in support of its supposedly safe vehicle.

   As a result of Heiskell’s work, Bickerstaff was promptly taken off the stand and off Ford’s payroll. The discovery made headlines everywhere from The New York Times to Trial, and it clouded NHTSA’s opinion of Ford.

   “Heiskell performed a real public service in letting the agency know that Ford had withheld information,” says Allan Kam, senior enforcement attorney for NHTSA from 1975 to 2000, “I, for one, became very skeptical of Ford’s representations to NHTSA. It became clear to me that the agency had been hoodwinked by [the company].”

   The Bronco II’s rollover rate prompted a NHTSA investigation and while the administration officially ruled in 1989 that the Bronco II was no more dangerous than other SUVs of comparable size, the decision remains controversial.

   In response to the decision, the PBS program “Frontline” quoted NHTSA director under President Carter, Joan Claybrook, as saying, “[The Bronco II] was the bad actor, and when [NHTSA] refused to do a recall of that vehicle it gave a pass to every other SUV. It essentially sent a message to Detroit: ‘You can make your SUV as rollover-prone as you want to, this agency is not going to find that’s a defect.’”

   That same year, 1989, the Bronco II failed Consumer Reports handling tests and the magazine warned readers against purchasing the vehicle. A year later, Ford put the Bronco II out to pasture, replacing it with the Explorer.

   “It’s not just hiding documents,” says Heiskell, riled up after the Bronco II test video and talk of Bickerstaff. “They have lobbyists in Washington working on NHTSA guys, taking them to lunch, taking them to golf tournaments. Then they’ve got their key legislators from Michigan, and they’re constantly supporting conservative, pro-business judges. Whatever Ford wants, Ford gets.”

   He sits down at his desk and is silent a moment.

   “It’s truly David versus Goliath,” he muses. “And Goliath has lined up a lot of friends.”

 

Late one recent afternoon, the Boar’s Head’s tennis courts still steaming from a sudden thunderstorm, Heiskell and his tennis partner, Deesh Teja, have donned almost identical tennis whites. Aside from the two of them, the courts are empty and silent, save for the shuffle of their feet on the clay courts and the satisfying sound of a steady rally as the ball makes contact with the racquets. The competitive edge his colleagues and adversaries know from the courtroom is on display when Heiskell steps onto the tennis court.

   “I love racquet sports,” he explains on a water break between games, “because you can hit something with all you got.”

   By the time he wins the first four games, he’s dripping with sweat and has to switch racquets to let the grip on his primary racquet dry.

   Back at it, he misses an easy ball.

   “Aw, Hike!” he yells to himself, shaking his head.

   Likewise, when Teja hits a tough ball, Heiskell bows his head and walks to the baseline, saying, “Nice one, Deesh.”

   Teja gives Heiskell a real workout in the next six games, winning all of them and, thus, the set. Teja, however, laughs between catching his breath that this happens only “once in a blue moon.”

   Soaked with sweat and red in the face, Heiskell makes his way toward the parking lot where his “baby” patiently waits: She’s a 1994 forest green manual transmisssion Saab convertible. He loves her. She’s so well loved, in fact, that the driver’s side seat has busted its stitching and the stuffing is popping out. He opens the door and climbs inside. Moments later, the engine revs and Heiskell’s pulling onto the narrow country club road, low to the ground and hugging the turns.

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