NEWS WATCH
FROM BARBARA WARTELLE WALL: LEGAL WATCH
FEDERAL APPEALS COURT REFUSES TO REHEAR CONSUMER REPORTS CASE
Despite a strong dissent from several judges, a federal appeals court recently declined to rehear a case in which a panel of three of its judges had earlier decided that the publisher of a consumer safety report could be liable for product disparagement if it designed a test to make the product fail and did not re-examine its testing procedure after its methods were criticized. (Suzuki Motor Corp. v. Consumers Union of United States, Inc., May 19, 2003.) The controversy surrounding the latest decision in this long-running case and the vigorous dissent could lead to further review by the U.S. Supreme Court.
As reported in Legal Watch, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held last year that Consumers Union (CU) could be liable for asserting that the Suzuki Samurai tipped over more easily than other sport utility vehicles. (Suzuki Motor Corp. v. Consumers Union of United States, Inc., June 25, 2002.) CU then asked the entire Ninth Circuit to rehear the case. (Parties who are dissatisfied with a decision by a federal appeals court panel are entitled to request review by all the judges who sit on that circuit.) In the latest decision, that request was rejected by 13 of the 24 judges voting. The 11 remaining judges joined a strongly worded dissent written by Judge Alex Kozinski.
CU first tested the safety of the Samurai in 1988 on an accident avoidance course it had used for many years. Three drivers took the Samurai through the course 46 times without incident, but it tipped up on two wheels the 47th time. CU then designed a shorter course to replicate the conditions that caused the Samurai to tip up, and the Samurai again tipped after several runs. A number of other SUVs put through the shorter course did not tip.
In July 1988, CU published an article that described the tests it had conducted, concluded that the Samurai is "unfit for its intended use" because it is "so likely to roll over" during an accident avoidance maneuver and gave it a "Not Acceptable" rating. During the next several years, CU published multiple references to the rating.
Suzuki sued CU for product disparagement, alleging that the repeated references to the rating falsely suggested that Samurais tipped over more easily than did other SUVs. The rating was flawed, Suzuki argued, because CU employees had encouraged test drivers to roll the vehicle and had expressed approval and delight when it finally did roll.
In California, a product disparagement claim requires proof that the publisher made the disparaging statements with "actual malice," that is, knowing they are false or with reckless disregard of their truth or falsity. A publisher acts with reckless disregard if it "actually had a high degree of awareness of probable falsity," or purposefully avoided learning the truth despite "obvious reasons to doubt the accuracy of the story."
The three-judge panel -- whose decision still stands -- had concluded that "the timing of the course modification" and "the fact that the Suzuki was tested until it tipped" suggested that CU "rigged" the test "in order to cause a rollover." Evidence that CU needed to boost revenues through a "blockbuster story" lent credence to the allegation of rigging, the court also found. In addition, the panel said that CU's failure to examine its testing methods after a government safety agency said that certain aspects of those tests were flawed could constitute evidence that it purposefully avoided learning that its rating was inaccurate.
Judge Kozinki strongly criticized the panel's reasoning in his dissent. CU based its opinion -- the rating of the Samurai as "Not Acceptable" -- on testing methods that it fully described in the article. The First Amendment protects the publication of opinions based on disclosed facts, so the panel's decision must be incorrect, he argued.
Moreover, changing its test to better detect rollover risk in increasingly popular SUVs "is precisely what one would expect from researchers seriously interested in consumer safety," Judge Kozinski said. "CU's switch is not even bad science, let alone bad journalism, and certainly not journalism so awful that it loses First Amendment protection," he added.
Judge Kozinski also argued that CU's decision not to alter its testing procedures following criticism does not demonstrate actual malice because there is long-running debate about which methods test rollover propensity most effectively. And he voiced concern that the panel's decision will result in the suppression of consumer reports relied on by the public for information vital to health and safety.
CU is expected to ask the Supreme Court to review the decision, which may be more inclined to hear such an argument in light of the large number of dissenting votes in the Ninth Circuit. Were the court to agree to hear the case, it would be the first press defamation case to reach the Supreme Court in 12 years.
http://www.gannett.com/go/newswatch/200 ... 0627-7.htm
There is a video somewhere on the internet that exposes the Consumer Union deliberately modifying their roll over test, as they couldn't get the zook to roll on the 'standard test track' which was used to test other types of 4x4's and SUV's.
More Bias
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