Consumer Reports Defamation Trial Starts
Isuzu Challenges Magazine's Rollover Claims About Trooper SUVs
By David Rosenzweig
Isuzu Motors Ltd. has accused the magazine and its nonprofit parent, Consumers Union, of rigging tests to show that the 1995-96 Trooper sport-utility vehicle displayed a propensity to roll over when making emergency turns.
The Japanese automaker claims it suffered more than $200 million in damages after Consumer Reports panned the Trooper in October 1996, causing a 54 percent drop in sales.
The magazine, which has been critiquing products for 64 years, denies that it skewed the tests and says the lawsuit is a public relations gambit aimed at silencing the voice of a fiercely independent consumer watchdog.
Both sides already have poured millions of dollars into preparations for the product-disparagement and defamation trial.
Since 1968, Consumer Reports has been sued a dozen times for knocking products and has never lost a case or paid an out-of-court settlement. But this legal battle could prove to be the most challenging. And looming just ahead is a companion suit by Suzuki Motor Corp., whose Samurai SUV was branded rollover-prone in 1988.
The Trooper was put through its paces in the spring of 1996 at Consumers Union's 327-acre test track in East Haddam, Conn.
Three professional drivers with engineering degrees performed a rapid zigzag maneuver intended to simulate what might happen if a driver had to swerve to avoid striking a child who darted into his path.
Rounding the turns at just over 33 mph, the Trooper "lifted both right wheels high off the pavement," the Consumer Reports article said. "It would have rolled over completely were if not for our test driver's quick and skillful steering."
To avoid putting the other drivers at risk, engineers mounted a pair of outriggers--similar in function to bicycle training wheels--on the Trooper, which continued to tip up when run through the course, the magazine reported.
All told, the Trooper tipped up its two right wheels during 75 of 192 lane-change maneuvers, Consumers Union says in court papers.
Although all vehicles with high centers of gravity have a potential to tip over, Consumers Union says that in 12 years of testing more than 80 SUVs, pickup trucks and minivans, only the 1988 Suzuki Samurai and the 1995-96 Isuzu Trooper performed so badly as to warrant a "not acceptable" rating.
According to Isuzu, however, the test drivers caused the Trooper to tip by turning the steering wheel faster and farther than real-world drivers would ever do in the worst emergencies.
Isuzu said in the suit that years before the Trooper article was published, the National Highway Traffic Safety Administration and its British counterpart rejected Consumer Reports' rollover tests as unscientific on the grounds that they were subject to driver influence.
To underscore the point, Isuzu said that the three Consumers Union drivers who tested the 1995-96 Trooper registered significantly different tip-up rates, ranging from occasional to frequent.
The company also claims that the consumer group falsified certain test data and concealed other information to bolster its case against the Trooper. It charges also that a magazine staffer began writing the article before the tests were concluded.
Isuzu suggests in its lawsuit that Consumers Union concocted the Trooper expose to get the federal government to change its mind about adopting rollover safety standards for SUVs sold in the United States. Just before the 1996 Trooper tests, the NHTSA rejected the consumer organization's petition for rollover standards. Isuzu's lawyers say the article's timing was more than coincidence.
Earlier this month, the transportation safety agency said it will soon publish proposed rules for a rollover test. The test is expected to call for use of a computer-controlled steering device rather than relying on drivers whose split-second actions behind the wheel can vary.
In its defense, Consumer Reports contends that its testing standards are rigorous and that Isuzu's conspiracy claims are baseless.
Rhoda H. Karpatkin, Consumers Union's president, said in a recent memo to the organization's members that the Isuzu lawsuit "looks like an attempt to silence us."
In documents obtained by Consumers Union, Isuzu management officials described the lawsuit as a useful "PR tool" and stated, "When attacked, CU will probably shut up."
Karpatkin said Consumers Union will not be intimidated by Isuzu or Suzuki, whose lawsuit is pending in federal court in Santa Ana, Calif.
The two cases raise important free-speech issues, Karpatkin said in her memo: "Our constitutional right to publish is under assault. Most important, in publishing our results, we're defending the consumer's right to information."
Consumer Reports maintains it has never made a secret of the fact that federal regulators refused to approve its testing methods. The government is just wrong, it argues, adding that Ford, Chrysler and even Isuzu have used similar tests on their own vehicles.
Consumers Union's legal team tried to get the case thrown out of court, but U.S. District Judge Richard A. Paez allowed the suit to go forward.
Without determining the truth of Isuzu's claims, Paez said in a 21-page ruling in September that a jury might be able to find that Consumer Reports was liable because it knew that the driving maneuver used to test the Trooper "was highly susceptible to driver influence" and because "its testing methods had been criticized by [government regulators] as unreliable."
In addition, he said, Consumer Reports possessed government statistics showing no fatalities from Trooper rollovers in 1995 and chose not to use them in the article.
"Deliberately avoiding information that may undermine a published story may be grounds for a finding of malice," Paez wrote in his opinion.
But Paez also raised the bar for Isuzu to prevail in the lawsuit. Because Isuzu mounted a lengthy public relations blitz against Consumer Reports before filing suit, it must be considered a public figure, he said.
That means Isuzu's burden of proof is higher. Instead of having to prove its claims by a "preponderance of evidence," the auto manufacturer must establish by more rigorous "clear and convincing evidence" that Consumer Reports published the article knowing it was false or with reckless disregard for whether it was true or false.
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