Attorneys for Ford Motor Co. have agreed to turn over to Indiana prosecutors internal Ford documents dealing with the design and production of the Ford Pinto, documents considered crucial to Indiana's unprecedented charges of reckless homicide against the huge automaker.
But the documents must be returned to Ford uncopied if Pulaski County Circuit Judge Harold Staffeldt rules that they cannot be admitted into evidence. The trial will open Jan. 7 to determine Ford's responsibility in the death of three young women in a fiery collision invoving their 1973 Pinto in August 1978 in Goshen, Ind.
Although prosecutor Michael Cosentino is believed to have copies of most of the documents in his possession already, the originals are needed to verify their authenticity.
Ford attorney James F. Neal has contended that by producing the documents requested by Cosentino Ford isn't conceding they are authentic.
He said he has asked the prosecution not to make the documents public because of fears they will be given to civil attorneys who then could sue Ford for damages on behalf of other Pinto accident victims.
The documents are central to this landmark legal test. Before they were sealed by the Indiana trial judge, many had appeared in civil trials, and were quoted from extensively in news stories appearing in Mother Jones magazine and the Chicago Tribune.
The controversial documents reportedly show how Ford safety-tested many of its cars, indicating that when a car pulled at random from the assembly line fails a safety test, no report of the test is issued.
"The test is then cancelled officially with a letter stating the date of cancellation, but with no reason," said one 1972 memo said to be written by F. J. Finkenauer Jr., manager of Ford's body-testing department then.
Following an unsuccessful test, "additional samples are usually brought in to determine if a 'pass' can be achieved with no corrective action," Finkenauer allegedly wrote.
Other documents allegedly show that Ford Motor Co. executives knew of the Pinto's fatal gas-tank design flaw -- which made the sedans particularly susceptible to fires due to fuel leaks stemming from crashes -- and decided to go ahead with production of the car anyway. Autopsies indicated the Goshen crash victims died of burns.
One memo, marked "confidential," reportedly shows that Ford executives knew in 1971 that an $8 part would reduce fire risks in the Pinto significantly, but recommended saving $20.9 million by holding off installation of that part until 1976. The part never was added, the Chicago Tribune reported.
Still other documents reportedly show how Ford put a price tag on human lives, and ultimatlely concluded that the possibility of saving the lives of 180 people was not worth the cost of adding $11 per car for safety improvements on 12.5 million cars and liht trucks.
Prosecutor Cosentino has said the documents show Ford consciously decided "to sacrifice human life for private profit." He then charges the company with reckless disregard for human life because it did not warn Pinto owners of the dangers.
In fact, the federal Department of Transportation found in May 1978 -- three months before the three Elkhart youths died in the crash -- that the fuel-system design in 1.5 million Pintos and 30,000 Mercury Bobcats made between 1971 and 1976 was defective. Ford later agreed to recall the cars to correct the problem. Later models of the car had an improved design. (The problem wasn't found in station wagon versions of the cars.) The Pinto in the Elkhart accident hadn't been refitted.
But Cosentino has a tough fight on his hands in just trying to get those documents into court.
Three weeks ago, a Michigan judge refused Cosentino's bid to subpoena Ford Chairman Henry Ford II and 29 other Ford executives to produce the papers during what would have been dramatic courtroom testimony.
It was only after Cosentino redirected that subpoena to the company instead of the individuals that Ford agreed to turn over its papers. But the judge still hasn't ruled on their admissibility.
Many of the documents apparently have been admitted into evidence at some of the dozens of civil suits stemming from Pinto accidents, including the highly publicized Grimshaw case, in which a jury awarded a California youth $128 million for the extensive burns he received in one crash. A judge reduced that award to $6.3 million and that judgment is under appeal.
Barring other alternatives, Cosentino could seek to subpoena attorneys from those cases to vouch for the authenticity of the documents.
The importance of Indiana vs. The Ford Motor Co. goes far deeper than the Ford memos. It is a crucial test of the liability of a business for the products it makes and sells.
The charge of reckless homicide has been brought under a 1977 revision to the Indiana Penal Code that allows a corporation to be treated as a person for the purposes of bringing criminal charges.
Still, no individuals have been charged with this homicide, and the most the state can win, financially, is about $35,000 in fines from Ford.
But the ramifications of a conviction go much further for Ford, and business in general. In Ford's case, it could lead to devastating civil judgments. For all industry, it could signal a new era in corporate responsibility for products on the marketplace.
Ford has won some procedural victories in court, including a change of venue. The case was moved from Elkhart, home of the three young women who died in the crash, to the smaller Winamac after Ford surveys indicated the company could not get a fair trial in Elkhart County.
Although Cosentino was given a special $20,000 addition to his budget as part-time Elkhart County prosecutor for this case alone, and is enjoying considerable volunteer help, Ford is expected to spend nearly $1 million for its defense.
The company has hired prominent Watergate prosecutor James Neal to lead its defense team. A public-minded spirited country lawyer who became the first man to prosecute Jimmy Hoffa successfully, Neal is an almost perfect match for the affable Cosentino -- who also has a flair for the country-style fire and brimstone.