By Cliff Kincaid
When influential media charge that a widely used product is faulty and dangerous, that becomes a big story, as we have seen recently in the case of the Firestone tires. But when a big manufacturer charges in a federal court that an influential media organization has falsely and maliciously charged that it is selling a flawed and dangerous product, that gets little media attention. We have seen this in the media’s coverage of a suit for libel, slander, product disparagement and unfair competition filed in 1996 by Suzuki Motor Corporation against Consumers Union (CU) and its magazine, Consumer Reports.
In 1988, Consumer Reports reported that its tests had proven that the Suzuki Samurai sport utility vehicle “rolls over easily” and had to be given the rare “Not Acceptable” rating. Even though the National Highway Transportation Safety Administration (NHTSA) declared that its tests showed that the Consumer Reports charges were invalid, Suzuki Samurai sales in the U.S. plummeted from 81,349 in 1987 to only 5,041 in two years. The vehicle was eventually forced off the U.S. market and its production was discontinued in 1995.
In its 60th anniversary issue in Jan. 1996, Consumer Reports cited the Samurai as the prime example of the valuable work it had done in exposing safety hazards. It repeated the charge that its tests had shown that the vehicle “easily rolls over in turns.” This gave Suzuki Motors a chance to use the evidence about CU’s tests that it had previously lacked to prove in court that Consumer Reports knew that statement was false when they made it. Suzuki filed suit in federal district court in California in April 1996 to set the record straight and hold CU legally accountable. The pleadings in this case expose the fraudulent tactics of a magazine with a circulation of nearly 5,000,000.
From the days when Ralph Nader spread distrust of the Corvair with charges that could not be substantiated, the public has shown itself to be vulnerable to claims that particular vehicles are dangerous to drive. The charges have been a bonanza for trial lawyers who have seized upon them to get huge judgments against auto makers in cases where the vehicles have been involved in accidents that caused serious injuries or deaths. Nearly 200 lawsuits have been filed against Suzuki Motors charging that the design of the Samurai was responsible for injuries and deaths. In 1997, a jury in St. Louis awarded a woman $25 million for injuries she suffered when the Samurai in which she was riding rolled over. The jury ignored evidence that the driver of the vehicle was impaired by alcohol and that the vehicle rolled over because it hit an embankment. The CU charges probably influenced those jurors.
In its pleadings, Suzuki charged that CU was financially over-extended in 1988. It had just purchased a new headquarters for $30 million and it was looking for a big story that could boost sales of its magazine. The Samurai was chosen as its target. It was an innovative and highly popular version of a new type of car?the sport utility vehicle?that was somewhat controversial. Suzuki charged that CU thought that “declaring such a car a safety hazard, thereby exploiting consumers’ worst fears, would make a great story and an even better marketing tool.”
The Making of a Hatchet Job
Drawing on the testimony of a former CU employee and video-tapes made by CU of its tests of the Samurai, Suzuki showed how a “hit piece” was developed by CU editorial director Irwin Landau, who was both author and editor of the 1988 article. It charged that he set out to show that the Samurai was prone to roll over easily, endangering the lives of the occupants.
CU videotapes and other evidence obtained in discovery show-ed that when the car was put through the standard “emergency avoidance” test course, it passed with no problems. This is supposed to replicate an emergency that any driver might en-counter. It involves the driver suddenly turning into the opposing lane to avoid an obstacle and quickly turning back into the original lane. The Samurai was run through the course, which had been used for 15 years, 37 times. It did not roll over once even though it was driven at a higher speed than other cars that were tested. Kevin Sheehan, a CU test driver, said the vehicle “never felt like it would tip over.” Another driver, Rick Small, gave the Samurai CU’s highest stability rating, saying it “corrects quickly” and “responds well.”
Suzuki charges that at this point Landau threatened his testing staff, saying, “If you can’t find someone to roll this car, I will!” David Pittle, CU’s technical director, tried nine times to roll the car over without success. He finally succeeded in getting it to tip up by turning the car so sharply that it went off the test course. A video shows onlookers cheering and yelling, “Yeah!” One said , “I think I got that, I think I got that.”
CU then decided to construct a new course that would make it easier to replicate Pittle’s successful maneuver. It was still difficult to make the vehicle tip, and CU employee Joe Nappi cried out, “All right, Ricky baby,” when test driver Rick Small finally succeeded in getting two wheels off the ground.
It was after all this special effort that CU announced at a news conference that the Samurai “rolls over easily” during routine driving and was given the rating of “Not Acceptable” on the road. CU showed videotape of one of the few successful tip-up maneuvers. Suzuki charges that this was taped during another trip to the track, where the driver once again had difficulty getting two of the vehicle’s wheels off the ground. One tape shows Pittle complaining, “Can’t you just see it, we get no lift off the ground. Oh God.” After repeated attempts, however, the maneuver succeeded and the “picture-perfect” tip-up was obtained. Photos of this rare event were used repeatedly over the years to boost subscriptions and generate contributions to CU by showing how they exposed a safety hazard. From 1988 to 1996, Suzuki says, “CU sent out millions of fund-raising and subscription solicitation letters featuring the Samurai story.”
Suzuki contends that CU not only withheld evidence that showed the falsity of its claim, but that it also falsified evidence. Some of the most damaging testimony against Suzuki came from Ron Denison, a former lab technician at the CU’s testing facility. It was Denison who revealed that Landau had said, “If you can’t find someone to roll this car, I will.” After this testimony, Suzuki says that CU employees “manufactured a false affidavit in an attempt to discredit Denison.” They claimed that Denison, not employee Joe Nappi, was the individual who could be heard cheering “All right, Ricky baby!” Suzuki says that instead of discrediting Denison and his evidence, CU was forced to admit that the affidavit was false in virtually every detail.
The tests on the Samurai actually showed that it was harder to roll over than vehicles that Consumer Reports rated acceptable. The conduct of CU was scandalous. In order to make a buck, they destroyed the reputation of an excellent vehicle through rigged tests and tried to cover up what they had done. Now they are claiming that the First Amendment gives them the right to do that. They want to avoid a jury trial on the merits of the case.
But despite the abundance of evidence that made that point, on May 25, 2000, eleven months after having heard arguments on CU’s motion for summary judgment, Judge Alicemarie Stottler granted CU’s motion and entered judgment against Suzuki. This motion was limited to the issue of whether or not Suzuki had enough evidence to establish at a trial that CU had acted with “actual malice,” i.e., reckless disregard of the truth. Suzuki says that CU did not dispute the falsity of its statements about the Samurai and admitted that those statements were “based solely on its (own) test results.” Suzuki is appealing Judge Stottler’s ruling to the Court of Appeals for the Ninth Circuit.
AIM Weighs In On Suzuki’s Side
AIM has submitted an amicus brief in the case, arguing that Suzuki should be allowed to present its evidence to a jury. It is hard to understand how any judge could honestly rule that the evidence in this case does not prove that the defendant knew that its claim that the Samurai “rolled over easily” was false. This case impresses us as being on a par with Dateline NBC’s rigging a test to show that GM pickup trucks with fuel tanks on the side were “fire bombs waiting to explode” in a side-impact collision. NBC filled the gas tanks to the brim, fitted one of them with a defective cap to insure that gasoline would spill out and attached remote-controlled igniters to the two trucks they tested. Even with that, they succeeded in getting only a small burst of flame in the test using the truck with the defective gas tank cap. When GM discovered how the tests had been conducted and announced that they were going to sue, NBC abjectly apologized and fired the Dateline employees who were responsible.
That, of course, is what CU should have done and should still do, but the evidence that Suzuki has discovered that shows the depth of their dishonesty has not been exposed by the media to the same degree the Dateline story was. An AP story reporting the judge’s grant of summary judgment to CU said only that Suzuki charged that the tests had been rigged, but it provided none of the details that support that charge.
A segment about CU on 60 Minutes II last June was largely a puff piece for CU, but it did provide some detail about Suzuki’s argument that they set out to prove that the Samurai rolled over easily and they kept trying until under extreme circumstances they got it to tip up on two wheels. They ended up with a spokesman for CU proclaiming their honesty and their right under the First Amendment to do what they did to the Suzuki Samurai even if what they said was inaccurate.
Journalism Professor Flunks CU
Edward O. Guthman, a professor of journalism at the University of Southern California who won a Pulitzer Prize for investigative reporting, has issued a long and strong statement as an expert witness for Suzuki Motors. He said, “The evidence that I have seen indicates to me that CU did not undertake a good faith investigation to discover the truth and that what CU reported about the Samurai was slanted, incomplete and inaccurate. But CU’s reporting was not just sloppy; the considerable evidence that CU failed to follow basic journalistic standards raised my concern that CU was not reporting in good faith, but instead had a predetermined outcome in mind?to find the Samurai ‘Not Acceptable.'”
Guthman charged that “CU turned a blind eye to the information that didn’t support its view.” “In my opinion,” he said, “there is strong evidence that CU did not want to learn the truth or to report it.” He attached great importance to the fact that the NHTSA had warned CU in 1978 that its auto testing procedure was insufficient to support its conclusions. It had been told by NHTSA that its “long-course avoidance maneuver lacked scientific basis,” but it based its “not acceptable” rating of the Samurai on the results of its avoidance maneuvers. It knew that NHTSA was testing the safety of the Samurai, but it jumped the gun and announced its own conclusions without waiting for the NHTSA findings, which turned out to be favorable to the Samurai.
CU, he said, had supported a petition filed by the Center for Auto Safety (CFAS) to the NHTSA for recall of the Samurai. It had failed to disclose that the executive director of CFAS was a member of CU’s board and that it had sought his comments on its 1988 article on the Samurai before publication. CU did not disclose its support of the CFAS recall petition and it only briefly mentioned the fact that the NHTSA had rejected it. Guthman said there was clear evidence that CU had doubted the accuracy of its statements about the Samurai, despite its claims to the contrary. They knew from their own testing and from the findings of the NHTSA, the companies that insured the Samurai, and foreign governments that had rejected CU’s charges that what they published in 1988 was wrong. They nevertheless republished it in 1996.
In arguing for a right to trial by jury, Suzuki noted that it has eyewitness testimony and other evidence showing that CU acted with “actual malice.” The evidence, it said, is not only sufficient for a jury finding against CU, it is overwhelming.
Millions of people trust CU, believing that its tests of products are honest and fair. The Suzuki case shows that is not always the case. Media corporations also make defective products, and the CU treatment of the Suzuki Samurai is a good example. In this case, there is no government agency or congressional committee that can exercise oversight and demand accountability. The courts are the only avenue for justice and a remedy.
At this point, CU, which has insurance covering most of its legal expenses in the case, is not only hoping to escape legal accountability but is misleading its subscribers and supporters about the nature of the charges. CU President Rhoda H. Karpatkin claims the suit is “an effort to silence us” and that, “Under attack is the constitutional protection of free speech and the right to petition the government.”
This is absolute nonsense. As Suzuki points out in its brief, Chief Justice Earl Warren noted long ago that “the First Amendment does not include absolute license to destroy lives or careers,” and that includes a corporation, its products, and the employees who make them. If the courts or a jury ultimately uphold CU’s behavior in this case, it would mean that the media enjoy complete immunity from liability for false statements about a manufacturer’s products.
A Right to Know
Such a ruling or verdict would be a major miscarriage of justice. Regardless of what happens in the legal realm, and it may be difficult to find a jury untainted by the false allegations, the American people have a right to know that some self-styled friends of the consumer do not always have the best interests of consumers in mind, and that sensational stories targeting alleged corporate misconduct may not have any basis in fact.
In highlighting the dismissal of this case, the granting of summary judgment, CU noted that in April a federal jury in Los Angeles ruled unanimously that CU had not libeled or defamed Isuzu Motors in a “similar” CU review of the 1995 and 1996 Isuzu Trooper. But that went to a jury on far less evidence than is present in the Samurai case. As Suzuki notes, “Although Isuzu’s claims closely resembled Suzuki’s, Isuzu did not have eyewitness testimony or as much other evidence as Suzuki has that establishes that CU had a ‘high degree of awareness’ of the falsity of its claims.” In short, Suzuki believes it has more than enough evidence to convince a jury of actual malice by CU.
CU President Karpatkin says her organization has rarely been sued, “and we’ve never lost a case.” If this case goes to trial, and it should, CU could lose a big one. The implication of such a verdict would not mean financial ruin for CU, but rather a strong incentive to improve the process by which they test products and report results.
HOLY PLACES AND CHURCHES TARGETED
It was a shocking photograph that appeared in many newspapers around the world and captured the turmoil in the Middle East?Palestinians were destroying a Jewish holy site, the tomb of Joseph. Washington Post columnist Richard Cohen was so upset that he devoted a whole column to the incident. While he said that the tomb probably wasn’t a top-priority religious site, its destruction was still “a momentous event.”
Cohen said it showed why the Israelis were so reluctant to give control over holy sites in Jerusalem to the Palestinians or the Arabs. He said that when the Arabs had control of East Jerusalem, 58 Jewish synagogues were destroyed and many Jewish cemeteries were desecrated, with some of the headstones being used to build roads.
By contrast, the ongoing wholesale destruction of Christian holy sites in Kosovo has yet to become a big issue. It is estimated that since NATO and the U.N. took control, 100 Christian churches and religious buildings have been destroyed. Robert Fisk of the British newspaper the Independent, confirmed that many churches and buildings had been leveled to the ground through bombings. He says NATO forces appear indifferent to the destruction, and some NATO troops actually wanted their pictures taken in front of damaged or destroyed churches. But we have yet to see such photographs on the front pages of our major newspapers.
American reporters have confirmed such damage. Paul Watson of the Los Angeles Times has documented the anti-Christian rampage, and the Boston Globe reported that the destruction is so widespread that Serbia’s Christian heritage dating back several centuries in Kosovo was in peril. However, in this case, the Globe reporter and photographer were at the scene of some of this destruction, taking pictures, when their film was confiscated by ethnic Albanian Muslims.
The American people have been led to believe that the bombing of Kosovo and its occupation are something to be proud of. The September 4 Time magazine, in a cover story about U.N. Secretary-General Kofi Annan, claimed the mission in Kosovo “has been a success,” adding, “Kosovo is normalizing, though ethnic hate still smolders.” In fact, 150,000 Serbs have fled the U.N.- and NATO-dominated province, and murder, kidnappings and arson attacks are being used by the Albanian majority to drive the rest of them out.
Kosovo is perhaps the most blatant example of the destruction of sacred and religious sites of a Christian nature. Another religious war is underway in Sudan, where an Islamic regime armed by China regularly destroys churches and church-run hospitals and schools. Almost two million people, mostly Christians, have died there in the last ten years. But the U.N. has not threatened to intervene there in the name of stopping human rights abuses.
JOURNALISTS FOR CONFORMITY
The Society of Environmental Journalists (SEJ), a journalistic advocacy group, has just celebrated its 10th anniversary. Like the National Lesbian & Gay Journalists Association, it portrays itself as a professional group seeking objectivity and truth. But its activities and even its name imply a mission. Its Fall 1999 newsletter featured a critical story about George W. Bush’s environmental record in Texas. Some of the criticism, such as charges about a smog problem in Houston, were echoed by Al Gore’s campaign during the election.
One of the candidates for SEJ president in its recent election was Natalie Pawelski, CNN’s environmental correspondent. She said in her campaign for the SEJ presidency that coverage of environmental matters “needs to be better.”
CNN is one of those media organizations that have been reporting for years that the Amazon rain forest is endangered and disappearing at a rapid rate. But journalist Marc Morano, who works for American Investigator Television, visited the Amazon, talking to natives and government officials, only to discover that, “The Amazon rainforest is the most intact, least-endangered forest on the planet. Of the original forest area, only 12.5 percent has been deforested. Of that, 6 or 7 percent has regenerated. So up to 94 percent of the Amazon is left to nature.” Morano’s documentary, “Amazon Rainforest – Clear Cutting the Myths,” is airing around the country.
John Stossel of ABC News is one of the few other journalists in the media to subject environmental claims to serious scrutiny. But when he made a minor error in a story questioning the value of “organic” food, the New York Times and other media ran a series of stories wondering if his offense might be so great that he should be reprimanded or fired. Stossel had claimed in the story that ABC had conducted tests on conventional and organic produce and had found no pesticide residues in either group. This was viewed as rebutting a main selling point for organic food. It turned out that no such tests had been conducted. Stossel had used erroneous information provided to him by a producer.
Jerry Taylor, director of Natural Resource Studies at the Cato Institute, says that studies uniformly do conclude that pesticide residues are rarely found in produce at the point of sale, regardless of how they are grown. So while Stossel misstated what the ABC tests found, he was accurately stating what other tests had determined. Taylor called Stossel’s handling of the matter a mistake, but not a hanging offense.
What explains the ferocious attack on Stossel? Taylor said he suspected there was an attempt to illegitimately discredit the report and to silence Stossel and the perspective “that he alone brings to network newsmagazines.” For the New York Times, which highlighted the controversy, it also served to divert attention from its own dismal track record of making and correcting errors. The situation got so bad for the Times that Executive Editor Joe Lelyveld recently gave a speech to all his editors, complaining about the growing number of errors in the paper that require corrections.
It turns out that the Environmental Working Group had hired a public relations firm to wage the campaign against Stossel. Other groups after Stossel were the misnamed Fairness and Accuracy in Reporting (FAIR), and the Florence Fund, run by liberal icon Bill Moyers’ son. Stossel’s real offense, in his critics’ eyes, is that he is a reporter who is not afraid to say he believes in the American system of free enterprise and limited government. He is not a disciple of trial lawyers and government bureaucrats and would certainly not stand a chance of getting elected as president of the SEJ.
What You Can Do
Three cards are enclosed, one addressed to Rhoda Karpatkin, of Consumers Union and one to Washington Post columnist Richard Cohen. The third can be e-mailed to the New York Times or called in on the toll free line. The statement will be recorded. They promise a response, but you are more likely to get one if you put the message in your own words.