TLPJ Challenges Sweeping Court Order That Seals Decision Sanctioning Expert Witness and Honda for Evidence Tampering

Honda and Other Major Auto Makers Now Relying on Extraordinary Secrecy Order to Bar Questioning of Same Expert in Other Crash Cases

A national public interest law firm has just initiated a challenge to an extraordinary court order that seals, vacates, and bars reference to a court decision that sanctioned an expert witness and the American Honda Motor Company (Honda) for deliberately tampering with evidence. Trial Lawyers for Public Justice (TLPJ) is asking a California state court to make public its 2002 sanctions decision in the auto safety case Davis v. Honda. The lawsuit was based on a March 1999 accident in a Honda Civic that left plaintiff Sarah Davis, then 17 years old, a quadriplegic.

The sanctions decision, issued in the middle of trial, reportedly held the automaker liable after the court found that Honda’s expert witness, Robert Gratzinger, had deliberately tampered with key evidence in the case. The sanctions decision was vacated and sealed from public view after the case settled. On September 20, 2005, TLPJ filed motions on behalf of a national auto safety group and attorneys representing car crash victims in Tennessee and Mississippi, who are seeking to end the secrecy blanketing the decision.

Honda and other auto companies, such as Ford, Toyota, and Mazda, are still hiring Gratzinger as an expert witness and are using the exceptional order to prevent crash victims in other cases nationwide from disclosing – or even questioning him about – what happened.

“This extraordinary secrecy order is being used to stop crash victims from questioning Mr. Gratzinger and challenging his credibility,” said TLPJ Staff Attorney Rebecca E. Epstein. “People left in wheelchairs by crashes must sit in silence while Mr. Gratzinger testifies for Honda and other big automakers. They’re not even allowed to tell the jury that a judge in a similar case found that this man destroyed critical evidence, even though the court’s key findings have already been reported online and in a daily newspaper.”

The now-sealed sanctions decision, issued on October 3, 2002, was originally public and the subject of an October 11, 2002 article published in the Sacramento Bee. The newspaper reported that the Placer County Superior Court in Auburn, California, found that Honda expert witness Gratzinger “intentionally” used a rag on September 4, 2002, to “obliterate” crucial marks on the safety belt of the Honda Civic that could have shown, contrary to Honda’s assertions, that Davis was wearing her seat belt when the car crashed. The court also found that an attorney for Honda “knowingly prevented” the rag from being preserved.  It ruled that, as a sanction, Honda would be held liable for the crash. The jury would decide only the amount that Honda paid for Davis’s injuries.

But the sanctions decision, called “a stunning 36-page decision” by the Bee, is shrouded in an unusually high level of court-imposed secrecy. One week after it was issued, the case settled and, on October 11, 2002, apparently as part of the settlement, the court entered a secrecy order that sealed and voided the sanctions decision. The extraordinary sealing order also prohibits all publication of the sanctions decision, requires copies to be destroyed, and prohibits anyone from testifying about the sanctions decision – or even mentioning it – in any legal proceeding nationwide. As a result, even though Gratzinger continues to serve as an expert witness for automakers in crash cases around the country, some courts have forbidden auto accident victims from asking him about the sanctions decision and his conduct in Davis. 

TLPJ is challenging the secrecy order on behalf of the Center for Auto Safety, a national consumer group that works to improve automobile safety, attorney Patrick M. Ardis of Wolff Ardis, P.C., in Memphis, Tennessee, and attorney Lee T. Griffin of Pajcic & Pajcic in Jacksonville, Florida.

Ardis represents Bettye Maxwell in Maxwell v. Ford Motor Company, a lawsuit filed on behalf of Maxwell’s husband, who was killed in an August 2001 crash in a Ford F150 pickup truck in DeSoto County, Mississippi. Gratzinger was called as an expert witness in the Maxwell case, but, because of the secrecy order, the presiding judge prevented Maxwell’s lawyers, including Ardis, from questioning Gratzinger about his conduct in the Davis case. Griffin represents Todd Irish in Irish v. Ford Motor Company, a lawsuit filed after Irish was rendered a paraplegic as a result of a November 2002 accident involving his Ford pickup truck. Gratzinger has been named an expert witness in the Irish case as well.

TLPJ Cooperating Counsel Dina Micheletti of Fazio | Micheletti in Pleasanton, California, said, “This case illustrates why it is so important to protect the public’s First Amendment right of access to court records. In this situation, we believe the trial court was motivated by the laudable goal of ensuring that a severely injured teenager was compensated for her injuries. Regrettably, however, defense counsel throughout the country are using the court's Sealing Order to preclude other severely injured crash victims from questioning Mr. Gratzinger about what the court found was intentional destruction of evidence. That injustice needs to be stopped.”

TLPJ’s legal team also includes Jeffrey Fazio of Fazio & Micheletti, TLPJ Executive Director Arthur H. Bryant, and TLPJ’s Brayton-Baron Fellow Leslie A. Bailey. The challenge is part of TLPJ’s Project ACCESS, a 15-year-old project against excessive court secrecy, and the group’s new Access to Justice Campaign, a nationwide initiative to keep America’s courthouse doors open to all. The motion challenging the Davis secrecy order can be viewed on TLPJ’s web site at www.tlpj.org.