Petition for Writ of Certiorari — Redco Corp. v. CBS, Inc.
Supreme Court brief1985
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ae FILED
85- JUL 5 1995
No. ALEXANDER L. STEVAS,
SEEK
; / Office- Supreme Cou U
38 a
IN THE
Supreme Court of the United States
October Term, 1985
REDCO CORPORATION,
Petitioner,
vs.
CBS, INC. and THE INSURANCE
INSTITUTE FOR HIGHWAY SAFETY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
AT NO. 82-0263
DONALD L. REIHART
LAUCKS & MONROE
29 North Duke Street
York, Pennsylvania 17401
Tel.: (717) 848-4900
Attorneys for Petitioner
Batavia Times Publishing Co. oe
Edward W. Shannon
Philadelphia, Pa. (215) 232-8181
Questions Presented For Review
1. Does The First Amendment Provide CBS, Inc. The
Right To Broadcast Knowingly False And Defamatory
Information On Its “60 Minutes’ News Report, As A
Constitutionally Protected ‘“‘Opinion’’?
2. Did The District Court And Third Circuit Court Of
Appeals Err In Entering Summary Judgment By
Determining The CBS “60 Minutes” “Killer Wheels”’
Program Was True As A Matter Of Law?
3. Should Summary Judgment Be Vacated Where
The Supreme Court Of Pennsylvania Overruled State
Law Applied By The Federal District Court Placing The
Burden Of Proving Falsity Of Defamation On Redco
Corporation In A Libel Action Against CBS, Inc.?
4. Did The District Court And Third Circuit Court Of
Appeals Err By Entering Summary Judgment Before
Redco Had Been Permitted Full Discovery?
ii.
TABLE OF CONTENTS.
Page
Questions Presented For Review ................. i
Tees Ce 0 OP Sa ok Fao eae teehee ccess iv
Reference To Reports Of Opinions Below.......... vi
Statement Of Grounds For Jurisdiction ........... vi
Constitutional Provisions And Statutes Involved... vi
ge rr re er ere 1
ge err er ere 2
a Pe re ne Ke ee ee 5
Reasons For Allowance Of The Writ.............. 11
Fe reer es eo err ee 14
I. Does The First Amendment Provide CBS,
Inc. The Right To Broadcast Knowingly False
And Defamatory Information On Its ‘60
Minutes” News Reports, As A Constitutionally
Protectan “Te © ko ess hk4s che eek ck weed» 14
II. Did The District Court And Third Circuit
Court Of Appeals Err In Entering Summary
Judgment By Determining The CBS “60
Minutes” ‘Killer Wheels’? Program Was True
As A Mather GE GONE. 6 656 ceeciccaacaecinges 19
III. Should Summary Judgment Be Vacated
Where The Pennsylvania Supreme Court
Overruled State Law Applied By The Federal
District Court Placing The Burden Of Proving
Falsity Of Defamation On Redco Corporation
In A Libel Action Against CBS, Inc.? ........ 24
IV. Did The District Court And Third Circuit
Court Of Appeals Err By Entering Summary
Judgment Before Redco Had Been Permitted
PU TRGOINOEYT 5 os sc ivccackeeersweeeeeus 28
Come, ov ics ine 40050554 30
iii.
Page
Appendix A—Plaintiff’s Complaint with Killer
Ne ed ki aeG ey bho ka sce un sees la
Appendix B—Request for Findings of Fact........ 39a
Appendix C—Affidavit of Dr. Thomas W. Benson... 46a
Appendix D—Affidavit of Dr. Thomas Benson..... 5la
Appendix E—Affidavit of J. B. Sechrist .......... 69a
Appendix F—Motion to Supplement the Record... .112a
Appendix G—District Court Opinion Entering
Summary Judgment in Favor of CBS........... 117a
Appendix H—District Court Opinion Entering
Summary Judgment in Favor of IIHS .......... 155a
Appendix I—Third Circuit Court of Appeals
a ce cha wh peda wht eeiuw esse si 16la
Appendix J—First and Fifth Amendments to the
ES A eee 168a
Appendix K—Pennsylvania Statutes 42 Pa. C.S.A.
I aa PIG AA cia wecs ede dass sss 169a
Appendix L—Hepps v. Philadelphia Newspapers,
PIII CIN 8 bk n Sins 6 class cu edevecccn 170a
Appendix M-—Excerpts of John N. Bradley
EME MEDS Nise ogo a eas ds a whew st 209a
Appendix N—Excerpts of Dr. Roger McCarthy
SS CAM Oa Ribas ba be eawee ed see set 235a
iv.
Page
TABLE OF AUTHORITIES.
Cases:
Children v. Shinn, 168 Iowa 531, 150 N.W. 864
CREED yds RNAS wih aS ik DCRR RASS 20
Corabi v. Curtis Publishing Co., 441 Pa. 432, 273
PT a os KE aes CRE ek eke cena en 12,26
Cosgrove S.C.V. Shop, Inc. v. Pawe, 408 Pa. 314,
eS ee ee ee ee 23
Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.
Super. 475, 448 A.2d 11 (1982)................. 24
E.D. Systems v. Southwestern Bell Tel. Co., 674
Fee Ge es: BI Es a S06 Ghbo cae iccs db kes 22
First National Bank of Boston v. Bellotti, 435 U.S.
765, 55 L.Ed. 2d 707, 98 S. Ct. 1407 (1978) ...... 18
Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.
Od TED, G4 B. CR. BRT TESTE) ow cc wee cesses 14
Goldwater v. Gindburg, “61 F. Supp. 784, 786 (S.D.
NY 1966) aff’d 414 F.2d 324 (2nd Cir. 1969), cert.
Gath. Te TA ROO NPE: ca ce ieeccncsvecs 16
Goodrich v. Waterbury Republican American, 188
Conn. 107, 448 A.2d 1317 (1982) ............... 23
Hepps v. Philadelphia Newspapers, Inc., Pa.
, 485 A.2d 374 (Appendix L, p. 170a) . . . 13,24,26
Herbert v. Lando, 441 U.S. 513, 60 L.Ed. 2d 115, 29
Be Gs a hs Ch amce conse ws 18
Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 2d 451,
ie ye : BEAR Ory: eee ee 29
Hovey v. Elliott, 167 U.S. 409, 42 L.Ed. 2d 215, 17
i, Ss ee Ss As inc aeecec eG da na khenke eu 21
Marine Midland Bank v. Smith, 482 F. Supp. 1279
SUES 0 5 oa oe eck cea cae aah ees 22
Nader v. De Toledano, 408 A.2d 31, 54 (D.C. CA
1979), cert. den. 44 U.S. 1078 (1980) ............ 22
v.
Page
Pickering v. Board of Education, 391 U.S. 563, 20
L.Ed. 2d 811, 88 S. Ct. 1731 (1968)............. 19
Sellers v. Time, Inc., 229 F. Supp. 582, 585 (E.D. Pa.
BPRS DPR re or oe oo ne ae Fe ee ee 23
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264
gt a ee eee ss eee eee 21,25
Miscellaneous:
McCormick, Evidence, 2nd Ed. $11, p. 23.......... 16
Prosser, On Torts 3rd Ed. 1965 .................. 16
Restatement Torts Second §518A, comment c,
a MS Bia a es ota vawe eases’ 20
Restatement Torts Second §581A, comment g, p.
De ¢ <cks eek ele eek Rad eae eeensehede aia 27
vi.
Reference To Reports Of Opinions Below
The reports of both the District Court and the Third
Circuit Court are not known to be reported. A copy of
the opinions are set forth in the Appendix attached
hereto.
Statement Of Grounds For Jurisdiction
This Court has jurisdiction by virtue of the act of June
25, 1948, c.646 $1, 62 Stat. 928; 29 U.S.C. §1254(1).
Constitutional Provisions And Statutes Involved
Constitution: U. S. Constitution Amendment I and
Amendment V (Appendix J, p. 168a).
Statutes: Act of July 9, 1976, P.L. 586, No. 142 §2,
42] Pa. C.S.A. §8343(b). Appendix K, p. 169a).
IN THE
Supreme Court of the United States
October Term, 1985
No.
REDCO CORPORATION,
Petitioner,
VS.
CBS, INC. and THE INSURANCE
INSTITUTE FOR HIGHWAY SAFETY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT,
AT NO. 82-0263
Statement Of The Case
This Petition seeks review of a final judgment of a
federal court. The District Courts subject matter
jurisdiction is based upon diversity of citizenship and an
amount in controversy exceeding $10,000.00, 28 U.S.C.
1332(a)(1).
2
Procedural History
On March 3, 1982, Plaintiff, Recdco Corporation,
hereinafter referred to as ‘‘Redco’’ filed a Complaint
against Defendant, CBS, Inc., hereinafter referred to as
“CBS” and Defendant, The Insurance Institute for
H.ghway Safety, hereinafter called “IIHS.”
The Complaint alleged that on March 8, 1981, and
again on September 6, 1981, CBS brdcast a show titled
‘Killer Wheels’, Redco claimed defaration, trade libel,
intentional interference with business relations and
conspiracy by both Defendants. Appendix A, p. la).
Answers were filed by CBS on April 19, 1982 and by
IIHS on April 27, 1982.
On December 10, 1982, Redco filed a Motion for an
Order Compelling Discovery and a Motion to Compel
Answers to Interrogatories.
CBS filed a Motion seeking Summary Judgment on
December 27, 1982.
Redco, on January 4, 1983, filed a Motion for
Continuance of the Summary Judgment pening
completion of discovery. The Court granted the
continuance.
CBS filed a Motion for Reconsideration of the
Continuance. On April 5, 1983, the Court revoked the
continuance and directed Redco to answer and brief the
Motion for Summary Judgment.
On January 25, 1984, the Court, while holding that the
program was of and concerning Redco, granted Summary
Judgment because “the program was based upon true
facts, opinions based on true facts or matters of opinion
which did not imply the existence of non-disclosed
defamatory facts.”
3
Redco filed a Motion to Reconsider the entry of
judgment on March 2, 1984. On March 19, 1984, the
lower court denied Plaintiff's Motion to Reconsider and
directed IIHS to file a dispositive motion as the macter
would be listed for triai.
The Court also denied Redco’s request that a final
appealable order be entered against Redco pending the
disposition of the suit against ITHS.
On April 2, 1984, IIHS filed a Motion for Summary
Judgment alleging that all matters had been adversely
decided against Redco and under the Law of the Case
Doctrine, Summary Judgment had to be entered in its
favor.
On April 27, 1984, IIHS filed its Brief in Support of
the Motion for Summary Judgment.
On April 27, 1984, Redco filed a Request for Proposed
Findings of Fact and Conclusions of Law (Appendix B,
p. 39a), a Brief in Opposition to ITHS’s Motion for
Summary Judgment and an Appendix that contained the
affidavit of a television communications expert.
On May 10, 1984, IIHS filed a Motion to Strike
Redco’s Appendix.
On May 31, 1984, Redco filed a Motion for
Continuance to Supplement the record with the
deposition of Dr. Thomas Benson, the _ television
communications expert, to whose affidavit IIHS had
objected. Appendix F, p. 112a.
On June 14, 1984, CBS filed a Memorandum also
objecting to Redco’s Motion for Continuance to
Supplement the record with Dr. Benson’s testimony.
4
On July 16, 1984, the District Court filed an Opinion
and Order denying IIHS’s Motion to Strike, denying
Redco’s Motion for Continuance and entering final
Summary Judgment in favor of IIHS and CBS.
On August 7, 1984, the case was appealed to the Third
Circuit Court of Appeals.
On April 9, 1985, with oral argument being permitted,
an Opinion was issued denying the appeal.
A Petition for Reconsideration was filed and denied on
May 7, 1985.
This Petition followed.
Because judgment was entered in favor of CBS and
IIHS on the District Court’s finding that common
questions of fact and law governed the claim against
both Defendants, this Petition is limited to those
comr..un issues that control the action against both CBS
and IIHS.
wwatte
5
Factual History
Redco Corporation is located in Red _ Lion,
Pennsylvania, and manufactures multi-piece rims.
On March 8, 1981, and again on September 6, 1981,
CBS broadcast a segment on its “60 Minutes’’ news
program titled ‘‘Killer Wheels’”’.
The thrust of the program depicted all manufacturers
of multi-piece wheels as producers of a deadly product
that was needlessly killing innocent people for profit.
Appendix D, pp. 57a-61la.
Immediately following both broadcasts, Redco, the
smallest of five (5) manufacturers of multi-piece wheels,
suffered dramatic losses in sales and the cost of liability
insurance quadrupled.
The Redco rim consists of two pieces with a reverse
nine (9°) degree locking sui face. It is a safely designed
rim. There were no reports of any fatalities resulting
from over four million (4,000,000) sales of Redco rims.
Only a few reports of injuries had been noted as of
March, 1981.
The ‘Killer Wheels’”’ program indicated that frequent
deaths involving servicemen and innocent by-standers
were caused by the explosion of ai/ multi-piece rims.
On March 8, 1981, the Redco rim had not killed any
servicemen, innocent by-standers or unsuspecting
motorists by an accidental explosion.
The District Court, affirmed by the Court of Appeals,
determined that the factual matters broadcast in the
“Killer Wheels’ show, under existing law, was true
(Redco could not prove it false) and the innuendo
suggesting manufacturers were unethical for needlessly
killing innocent people represented a constitutionally
protected opinion.
6
The entry of Summary Judgment is most unusual
considering the sworn statements of two of Redco’s
witnesses.
Dr. Roger McCarthy of Failure Analysis Associates,
Palo Alto, California, a national expert on multi-piece rim
safety, testified that the factual matters broadcast in the
program were not true. Appendix N, pp. 242a-275a. He
concluded his evaluation of the program by stating:
“Well, from a technical point of view the factual
data is substantially incorrect. The overall direction,
thrust and statement of the program would have to
be termed deceptive because it misleads the public
as to the true safety and true benefits of multi-piece
rims...it could lead to increased accidents and
increased danger on the highway; and rather than
being an aid to safety it could work to decrease
safety in this country.’’ Appendix N, pp. 274a-275a.
Dr. Thomas Benson stated that CBS specifically
designed their ‘Killer Wheels’ show to impress the
public as a factual, not an opinion broadcast. Appendix
D, pp. 66a-67a.
The District Court’s analysis of what an average
viewer would believe is most puzzling when overlayed
with one specific finding of the Court. CBS had argued
that because Redco was not specifically named on the
program, it was not ‘‘of and concerning Redco.”’
The Court rejected this part of CBS’ argument and
held that under the settled legal principles of group libel
the average viewer could conclude that the program was
about Redco and Redco’s product.
Why then wouldn’t the average viewer believe that
Redco was killing people with its product? If Redco was
not killing people with its product and if the program
was about Redco’s product would not just the title
“Killer Wheels” be a defamatory publication?
7
The District Court, however, never answered these
questions. When they were brought to the attention of
the Appeals Court it simply stated ‘‘Because Redco
admitted its rim had injured people the fact that at the
time of the broadcast no one had died from injuries
sustained in a Redco wheel rim accident does not make
the general assertions about multi-piece rims untrue.’’
Appendix I, p. 165a.
The Court blindly limited its review to the generai
assertion that multi-piece rims are dangerous, as argued
by CBS. If the review had considered the actual
defamatory message of the ‘Killer Wheels’ show, as
concerns Redco, i.e. that it has killed people with its
product fer the profits, despite a safe alternative, the
error in the District Court’s Summary Judgment Order
would have been obvious.
To prove the actual message conveyed, Redco
presented the affidavit of a television communication
expert.
Dr. Thomas Benson stated that in the 60 Minutes
‘Killer Wheels’’ show:
“By using ‘special’ editing techniques and
structuring the show to induce predictable emotions
in the viewers. ..CBS ‘casts the show as a drama
involving innocent victims, friendly witnesses, or
indignant but objective reporters (backed up by the
resources of a network of information gatherers)
and a heartless industry with something to hide.’ ”’
Appendix D, pp. 66a-67a.
The “special” editing techniques were described by
Jack Bradley, a person interviewed on the program, as so
unfair that “it was not the same interview he had
given.”’ Appendix M, p. 220a.
8
Bradley testified that he was invited by CBS to New
York ‘‘to explain as an expert to CBS the different types
of truck wheels in use.’’ He had no idea he was being
brought there to be impeached and cross-examined.
Appendix M, pp. 215a-216a.
Dr. Benson in evaluating Mr. Bradley’s interview on
the program states:
“The techniques of interviewing and _ television
narrative employed in ‘‘Killer Wheels’ in such a way
as to make Jack Bradley represent the industry, and
to make him appear not only heartless but
dishonest. He is the only witness whose story is
cross-examined, his answers are clearly distorted in
meaning by their placement in context, and it may be
that editing has been used to put some of his
answers directly out of context, a fact which cannot
be verified without inspection of the pre-edited
interview materials.’”"' Appendix D, pp. 67a-68a.
and
Every reasonable viewer must believe at this point
in the broadcast that multi-piece rims are
dangerous...when Bradley makes an _ engineer’s
answer to the question of whether multi-piece rims
are dangerous (he says, “they are not dangerous’),
‘Jack Bradley requested a copy of an unedited transcript of his
interview with Mike Wallace. (R. 898a). He was refused a copy of the
transcript. This position is in contravention of CBS, Inc.’s own
published News Standards. (R. 1105a). CBS, refuses the similar
request of Redco despite Bradley’s consent on the ground that the
interview is constitutionally and statutorily privileged information.
The lower court did not determine whether the information should be
disclosed as the Summary Judgment rendered the matter moot.
9
any audience member who has seen _ the
demonstration films and mutilated victims and
grieving parents must take Bradley for a fool or liar.
Appendix D, p. 67a.
Bradley’s reaction to the ‘Killer Wheels’’ presentation
of his interview was one of shock. He insisted that the
questions and answers were not of order and were
changed around and edited into a completely different
program. Appendix M, pp. 223a-224a.
Paul Hykes, a former employee of the Budd Company
who had written a letter severely criticizing the RH5°
muiti-piece rim manufactured by The Budd Company,
was contacted by a CBS researcher. (R. 946a-951a).
In sworn testimony Mr. Hykes declared that he told
the CBS representative that his letter of 1969 was
‘““wrong.’”?
A report of Dr. Roger McCarthy had changed his
mind. He mailed a copy of the report to CBS. (R. 946a-
948a).
Dr. McCarthy found fatalities from miulti-piece
accidents were extremely rare, so rare, that random
lightning strikes killed ten (10) times as many people as
all servicing accidents with multi-piece rims. Appendix
N, p. 239a.
In early 1981, CBS was researching the program they
eventually broadcast on March 8, 1981, about multi-piece
rims.
* Mike Wallace used the letter to impeach Jack Bradley without
advising anyone that the letter had been recanted.
10
Dr. McCarthy spoke with the researcher for several
hours explaining that his research confirmed the safety
of multi-piece rims and the dangers of single piece wheels
that also have the same explosive potential as multi-
piece rims. Dr. McCarthy also referred the CBS
researcher to a Mr. Robert Gaines who was also doing a
study of multi-piece rims for the National Highway
Traffic and Safety Administration. (R. 836a, 837a).
The report prepared for South Coast Technology, Inc.
by Mr. Gaines, dated February 6, 1981, confirmed that
there were a substantial number of single piece accidents
that had occurred causing death and injury. The report
suggested that the single piece rim and the multi-piece
rim had about the same accident frequency. (R. 1050a).
we
11
REASONS FOR ALLOWANCE OF THE WRIT
The record establishes that a national television
network has manufactured a controversy and published
substantially false and misleading information. Redco
Corporation has suffered $250,000.00 or more in damages
and its products liability insurance has quadrupled.
Despite the losses Redco has been denied the right to a
trial by jury.
The District Court departed the accepted and usual
course of judicial proceedings in several additional ways.
First, the holding that the innuendo suggesting that
the manufacturers were ‘‘unethical’’ was a
constitutionally protected ‘‘opinion’’ was an unwarranted
extension of constitutional protection.
No viewer watching a CBS ‘60 Minutes’ Program
could reasonably be expected to believe that they were
receiving an “‘opinion’’ which was based upon less than
all the available facts. If CBS has performed journalistic
“dirty tricks’’ through unethical editing techniques® or
consciously suppressing known relevent facts which are
necessary to comply with their avowed public standards
of objective and truthful reporting, the “‘opinion’’ defense
should not be theirs to claim.
A national television network that holds itself out to
be reporting matters in a true and complete manner
should not have the right to knowingly publish false
information as a constitutionally protected opinion.
* Redco suspected CBS of distortion of interviews by improper editing
techniques and the very questionable use of techniques of persuasion
apparent to an expert in the field of television journalism. Appendix
D, p. 5la. Redco was denied discovery of “outtakes’’, only the
testimony of Jack Bradley confirms this factual question. (See infra,
pp. 67a-68a).
12
Next, the Court refused to characterize the libel
actually alleged by Redco. (See Request for Findings of
Fact and Conclusions of Law, Appendix B, p. 39a).
Rather, the Court, following the argument of CBS, held
the average viewer would only understand from viewing
the ‘‘Killer Wheels’ show that multi-piece rims were
“dangerous.
This characterization permitted the Court to find as a
matter of law that the program was “‘true.”’
Redco’s requested discovery that sought outtakes and
other material needed to establish intentional program
falsification and malice was held to be irrelevant and
9
moot .
sé
Even without the discovery, the record suggests, at
least, a factual question on whether CBS prepared and
published a program that it knew was simply not true.
Summary Judgment on the basis that the program
was true. . ignored the allegations of Redco’s Complaint,
(Appendix A, 7a-8a) and the law of Pennsylvania that
holds even the literal accuracy of separate facts will not
render a communication true if the implication of the
communication as a whole is false. Corabi v. Curtis
Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971).
‘The television show portrays the defamatory message far more
effectively than the written transcript which is attached to Plaintiff's
Complaint. (Appendix A, p. 25a). The Court is urged to view the
program. A copy of the video taped program has been furnished by
CBS, Inc. and is part of the record. The Plaintiff will furnish the
necessary equipment to view the tape upon request by the Court.
13
Finally, while on appeal, the Pennsylvania Supreme
Court held constitutional a Pennsylvania statute placing
the burden of proving truth on the defendant. Hepps uv.
Philadelphia Newspapers, Inc., Pa. , 485
A.2d 374 (1984) (certiorari granted). (Appendix L, p.
170a. The Summary Judgment was entered on the
mistaken belief that the burden of proving truth could
not be placed upon the Defendant under the law of
Pennsylvania.
If this Court determines that the procedure is
constitutional as set forth in Hepps, the Summary
Judgment in this case should be vacated.
14
EXPANDED ARGUMENT
I. Does The First Amendment Provide CBS, Inc. The
Right To Broadcast Knowingly False And Defamatory
Information On Its “60 Minutes’’ News Reports, As A
Constitutionally Protected ‘“‘Opinion’’?
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 41
L.Ed. 2d 789, 805, 94 S. Ct. 2997 (1974), the court noted
that. . .“‘Under the First Amendment (Appendix J) there
is no such thing as a “false idea. ..However pernicious
an opinion may seem we depend for its correction not on
the judges and juries, but on the competition of other
ideas.”
If there is no such thing as a ‘‘false idea’, there is such
a thing as a “‘false opinion.”
There is strong evidence in the record that CBS knew
or had reason to know that multi-piece rims were not
safer than single piece rims and that the manufacturers
were not needlessly killing innocent people for profit.
Appendix N, pp. 235a-275a.
If ‘Killer Wheels’’ was an opinion of CBS News, there
are several valid reasons why such an opinion should not
be given constitutional protection.
First: Fifty-seven million (57,000,000) people saw the
broadcast of ‘Killer Wheels’. These viewers had been
conditioned to believe they were receiving truthful,
objective, factual reporting.
It is submitted of the fifty-seven million (57,000,000)
people who viewed the program, all but a small
percentage believed the show to be a factual news
program not an “‘opinion program.” (See Appendix C and
D, pp. 46a-68a). Redco alleges that it suffered
dramatic financial losses in lost sales and increased
15
insurance costs. Whether the losses were caused by an
intentionally fabricated opinion or the _ intentional
publication: of false facts...the harm is the same. How
can a small corporation like Redco reach fifty-seven
million (57,000,000) people to correct the erroneous and
defamatory message?
There is only one answer. If the opinion is falsely held
and Redco can prove the falseness, then a jury trial
should be allowed. The concept that a “pernicious
opinion” can only be corrected by other ideas is
impractical and unrealistic when applied to a national
television network.
Second: Granting unlimited power to a_ giant
television network in the form of “opinion immunity”
encourages irresponsible use of the freedom. Why would
CBS fabricate a controversy and express a falsely
libelous opinion? The answer is profit.
Broadcasters are vehement in their claim for a need to
be free of censorship in new dissemination. When
motivated by lofty values and a genuine desire to tell the
truth to the public, there should be no restraint.
However, human beings often depart the ideal and lofty
values are somtimes jaded by more mundane ones. When
it is more profitable for a corporation to lie, it may do so.
Access to a jury trial is the only safeguard an individual
has against abuse by any large corporate news network.
An “opinion immunity” as interpreted by CBS and
applied by the lower federal courts all but removes this
safeguard.
Third: The expression of defamatory opinions that
cause serious damage creates a conflict within the
constitution. Property is not to be taken without due
process of law under the Fifth Amendment. Appendix J,
p. 168a.
16
In ‘Killer Wheels” Redco was tried and convicted with
evidence that would not have been admitted against it in
a court of law. It was denied the right of cross-
examination. It has suffered substantial damage and has
been denied a jury trial. In the zeal to protect a First
Amendment right of CBS, a Fifth Amendment right of
Redco has been violated.
Fourth: The “opinion-fact’ distinction is just not
capable of fair application.
Courts have been struggling unsuccessfully with the
distinction between fact and opinion for decades.
Goldwater v. Gindburg, 261 F. Supp. 784, 786 (S.D. NY
1966) aff'd 414 F.2d 324 (2nd Cir. 1969) cert. den. 396
N.S. 1049 (1970), quoting Prosser oi. Jorts, 3rd Ed. 1965
(distinction “has proved to be most unsatisfactory and
an unreliable one, difficult to draw in practice’) of
McCormick on Evidence $11 at 23 (2nd Ed. 1972):
The classic formula, based as it is on the assumption
that ‘“‘fact’’ and ‘‘opinion’’ stand in contract and
hence are readily distinguishable, has proven the
clumsiest of all tools furnished the judge for
regulating the examination of witnesses. It is
clumsy because its based assumption is an illusion.
There is just no sound, logical or reasonable device for
distinguishing statements of fact from statements of
opinion. The difficulty has permitted subjective beliefs of
the District judge to deny Redco a trial by jury. There
are no standards to measure what is and what is not an
opinion. It has become a matter, perhaps because of the
uniqueness of the media, over which able minds can
reasonably differ.°
‘The District Judge viewing ‘‘Killer Wheels” agrees with CBS that
the program is an “opinion.” Dr. Thomas Benson, a television
communication expert has filed an affidavit that the average viewer
would understand the program as ‘‘fact.'’ Appendix C and D, pp. 46a,
66a-67a.
17
It is submitted that the question is really one for the
jury. Expert witnesses and proper instructions bring a
measure of reason to an otherwise unreasoned part of the
law. Proof of defamation should be the Plaintiff's burden
before the jury, like any other element in the case.
Whether the defamation is cast as an “opinion”’ or an
assertion of fact, the damage is the same. The instant
exposure of defamatory matter to fifty or one hundred
million people has so drastic an effect, that the source of
such broadcasts must be compelled to act responsibly.
The ambiguity of the “‘opinion-fact’’ approach encourages
irresponsibility. The ‘‘opinion fact’’ distinction should be
abandoned by the Court where it can be shown that the
opinion was falsely or maliciously expressed.
Fifth: The potential for serious harm resulting from
opinions is the same as factual assertions. For example,
in Maryland, as a result of the ‘“‘Killer Wheels’ show, an
effort was made to force the replacement of all multi-
piece wheels on school buses with single piece wheels. (R.
754a-780a). Appendix E, pp. 75a-86a.
The Phase IV Report of Failure Analysis Associates
states that:
Single piece rims and tubeless tires in school bus use
have demonstrated a total accident frequency 13
times higher than multi-piece wheels and 25 times
higher on the highway. P. 23 (R. 1029a).
Redco submits that the potential effect for ill cause by
the program requires close scrutiny by this Court.
Society’s interest in ‘‘order and morality’ mandate
sufficient effort at truth telling by a major television
network to avoid harm to the open minded viewer.
18
The efforts of Maryland’s school administrators to act
on the false information disseminated by CBS in the
‘Killer Wheels’’ show is ample evidence of the improper
factual message conveyed and understcod. (R. 754a-
780a). Appendix E, pp. 75a-86a).
Finally, a national broadcasting company like CBS
possesses almost unlimited power to persuade the public
to its point of view. If the power is abused it may harm
vast numbers of people. If false opinions are
communicated there is no way the average citizen who is
harmed can correct the falseness. There is no remedy if
those injured are left to compete with a broadcast giant.
Such power, unshackled, can cause muc’: mischief.
Chief Justice Berger recognized the problem in his
concurring opinion in First National Bank of Boston v.
Bellotti, 435 U.S. 765, 55 L.Ed. 2d 707, 98 S. Ct. 1407
(1978).
.. medical conglomerates as I describe pose a much
more realistic threat to valid interests than do
appellants [Bank associations...] The growth of
modern media empires ‘“‘has been to place in a few
hands the power to inform the American people and
shape public opinion.” p. 731.
Constitutional rights should be shared equally or be
subject to restraint. In Herbert v. Lando, 441 U.S. 513,
60 L.Ed. 2d 115, 29 S. Ct. 1635 (1979), Justice White
explains:
Those who publish defamatory falsehoods with the
requisite culpability. ..are subject to liability. The
aim being not only to compensate for injury, but
also to deter publication of unprotected material
threatening injury to individual reputation. Id. at
131.
19
Constitutional rights should never encourage or permit
national television networks to knowingly mislead the
viewer. Deliberate or reckless falsehoods serve no First
Amendment ends and deserve no protection under that
Amendment. Pickering v. Board of Education, 391 U.S.
563, 583, 20 L.Ed. 2d 811, 826, 88 S. Ct. 1731 (1968).
The First Amendment should not permit a nati nal
television news network to publish knowingly false and
defamatory information as a constitutionally protected
“opinion.”’
II. Did The District Court And Third Circuit Court
Of Appeals Err In Entering Summary Judgment By
Determining The CBS ‘60 Minutes” “Killer Wheels”
Program Was True As A Matter Of Law?
The District and Appellate Court also made the
determination that the ‘‘Killer Wheels’’ was true despite
the fact that the record established that the Redco wheel
had not killed anyone.
The District Court made the determination that the
‘Killer Wheels’’ broadcast was true as a matter of law.
It did this by addressing specific statements Redco
claimed were dafamatory. Appendix G, pp. 137a-143a.
Instead of determining whether the statements were
defamatory, the Court set about determining if they were
true and concluded as a matter of law that they were.
“ach of the statements and actions were likewise
analyzed by Dr. Roger McCarthy, an expert on multi-
piece rim safety. Appendix N, pp. 242a-275a. Dr.
McCarthy’s sworn analysis was contrary to the Courts’
conclusion. As an engineer, he found the statements
untrue.
20
...it (Killer Wheels) was erroneous in its overall
thrust. It was affirmatively misleading in _ its
statements about single piece rims. In general I
would say to the extent that it had factual
information to convey, a substantial portion of those
observations that purported to be facts were just
plain wrong. Appendix N, p. 243a.
This testimony of Dr. McCarthy raised serious factual
issues that could only be resolved in a jury trial.
The District Court correctly ruled that the program
was of and concerning Redco:
The fact that Redco was not specifically named in
the broadcast is not controlling. A party alleging
defamation need not be specifically named in the
description or circumstances tend to identify the
party. Appendix G, p. 129a.
Redco’s expert in television communication stated that
the average viewer would believe that all multi-piece rims
kill people and that the manufacturers do this because
they do not care about the human suffering caused by
their product. Appendix C and D, pp. 47a, 52a-53a.
If the Redco rim had killed no one (see Appendix E, p.
72a). . how could the Court correctly rule as to Redco that
the program was true? If group libel is alleged in which
Plaintiff is not named but is readily identified because of
the smallness of the group (decided in Redco’s favor),
then the statement must be true as concerns the
plaintiff. Restatment Torts Second, §518A, comment C,
§564A, comments B, C, D; Children v. Shinn, 168 Iowa
531, 150 N.W. 864 (1915).
The question of truth is a question for the jury.
Restatement Torts Second, §617(b).
‘s
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Pie HERMON ove
0 5 eas RRR MRE Ae HES 9
21
For the Court to rule that the program was of and
concerning Redco and that the viewers would understand
the “Killer Wheels” program to be about Redco, but that
they would not understand Redco to be making a ‘‘killer
rim”’ that was causing part of the “‘needless killing”’ is an
egregious error.
The Court ignored the inconsistency and followed the
argument of CBS that the program simply stated that
multi-piece rims are ‘‘dangerous.’”®
Whether a broadcast can be understood as being
defamatory is for the Court to decide. Steaks Unlimited,
Inc. v. Deaner, 623 F.2d 264 (3rd Cir. 1980).
However, the Court is bound to safeguard ‘‘due
process”’ in the exercise of its function. Hovey v. Elliott,
167 U.S. 409, 42 L.Ed. 215, 17 S. Ct. 841 (1867). It is the
function of the Court to determine if the publication is
capable of a defamatory meaning as it could be
understood by the average viewer. Steaks Unlimited,
Inc., supra, p. 269.
Redco submits it was a fundamental error of law for
the Court to decide the statements were true. Under
Pennsylvania law, the Courts role in a libel case is to
determine if the statements are capable of a
“‘defamatory”’ meaning. The jury is to determine whether
the statements are true. Appendix K, p. 169a.
Restatement Torts Second, §617B.
*No Plaintiff could ever win any law suit claiming libel when the
defendant is permitted to state the issue involved. A publication
falsely asserting that a woman murdered her husband by stabbing
could be characterized as a program stating that knives are
dangerous. Could the plaintiff ever win an argument that knives are
not dangerous or that this assertion was only a constitutionally
protected opinion?
22
While Redco’s experts could not control the Court’s
view of the program, absent some extraordinary cir-
cumstances not here present, the District Court should
have explained why the experts’ evaluation concerning
what its average viewer would understand was not being
followed. These matters were squarely presented to the
Court in Redco’s proposed Request for Findings of Fact.
Appendix B, pp. 40a-41a.
Redco is entitled to all reasonable inferences that flow
from the evidence being drawn in its favor. Marine
Midland Bank v. Smith, 482 F. Supp. 1279 (1979). In
considering the propriety of entering Summary Judg-
ment in a libel case, the Court must determine whether
under the facts construed in light most favorable to Red-
co, whether the broadcast is capable as being understood
as defamatory.
If the libel is characterized as an assertion that Redco
has produced a product that has killed people (Appendix
C and D, pp. 46a-68a) there is an issue of fact as Redco
denies killing people with its product. (Appendix E, p. 72a).
If the libel is characterized that multi-piece wheels kill
while single piece wheels do not, there is an issue of fact
as this point is controverted. Appendix N, pp. 247a-248a. If
the libel is characterized as Redco needless killing for the
profits to be made, this too, creates an issue of fact as
Redco denies the statement.
Even when the underlying facts are not contested (the
facts are contested in the instant case), there may remain
fact questions on inferences to be drawn from the facts
which preclude Summary Judgment. Nader v. De
Toledano, 408 A.2d 31, 54 (D.C. C.A. 1979) cert. den. 44
U.S. 1078 (1980); E.D. Systems Corp. v. Southwestern
Bell Tel. Co., 674 F.2d 453 (C.A. Tex. 1982).
Ne naacdies
23
While CBS has characterized the libel as dealing with
the “dangers of multi-piece rims’’ and that all the
defamatory facts were true, the facts and the inferences
drawn from the broadcast readily permit characterization
of the libel as submitted by Redco and confirmed by its
experts.
The assertion that Redco is killing people witt. its
product for the profits to be made, if false, is clearly
libellous. Such a communication goes beyond hyperbole,
suppant style, or colorful language permitted Sellers v.
Time, Inc., 229 F. Supp. 582, 585 (E.D. Pa. 1969);
Goodrich v. Waterbury Republican American, 188 Conn.
107, 448 A.2d 1317 (1982). Such a communica-
tion. . “harms the reputation of another as to lower him
in the estimation of the community or to deter third per-
sons from associating or dealing with him.” Cosgrove S.
C. V. Shop, Inc. v. Pawe, 408 Pa. 314, 318, 182 A.2d 751,
753 (1962).
For the Court to enter a Summary Judgment on the
basis that the publication was ‘‘true’’, is contrary to the
law and facts presented.
The Redco rim is not a “‘killer wheel.’’ It has killed no
one. The technical facts presented by CBS are not true.
An issue for detemination by the jury is present. The
Suramary Judgment should be vacated and a jury trial
ordered.
24
III. Should Summary Judgment Be Vacated Where
The Pennsylvania Supreme Court Overruled State Law
Applied By The Federal District Court Placing The
Burden Of Proving Falsity Of Defamation On Redco
Corporation In A Libel Action Against CBS, Inc.?
The District Court noted: ‘““CBS claims the Redco can-
not refute the veracity of the statements and that Redco
merely is upset that more favorable facts or opinions
were not presented in the program.” Appendix G, p. 127a.
The District Court then set forth the principles of law
that placed the burden of proving falsity of the publica-
tion upon Redco. Appendix G, pp. 133a-135a.
The case was briefed, argued and decided on the con-
cept that under Pennsylvania law, Redco had to prove
the falsity of the publication. The Court entered Sum-
mary Judgment and the Appeals Court affirmed on the
same basis.
On December 14, 1984, the Supreme Court of Fennsyl-
vania in Hepps v. Philadelphia Newspapers, Inc., Pa.
, 485 A.2d 374 (1984) (certiorari granted) (Appendix
L, p. 182a), overruled Dunlap v. Philadelphia Newspapers,
301 Pa. Super. 475, 448 A.2d 11 (1982) relied upon by the
District Court. The Hepps decision held the Penn-
sylvania statute placing the burden of proving the truth
of a defamatory publication on the defendant was con-
stitutional.’
7 Burden of Defendant—In an action for defamation, the defendant
has the burden of proving, when this issue is properly raised:
(1) The truth of the defamatory publication.
— ae es
42 Pa. C.S.A. §8343(b)(1).
Pe re ene ae
25
The dramatic change in the law was brought to the at-
tention of the Third Circuit Court of Appeals by a Peti-
tion for Reconsideration that was refused without opi-
nion.
It is submitted that the Pennsylvania law placing the
burden of proving truth on the Defendant in a libel ac-
tion is constitutional. Justice Nix in a well reasoned opi-
nion explained the decision of the constitutional issue as
follows:
“We are satisfied that Pennsylvania law makes a
constitutionally acceptable accommodation between
the freedom of expression required by the First
Amendment and our law of civil libel for compen-
-satory damages brought by a private individual to
redress defamatory falsehood...The First Amend-
ment has not been extended...to condone or en-
courage irresponsible conduct by the media in its ex-
ercise of informing the public of newsworthy events.
Nor can we conceive of a constitutionally protected
interest in condoning the media’s malicious or
negligent discharge of this responsibility. Free
debate will not be encouraged by allowing it to
become the forum for malicious or negligent abuse
of the reputation of those involved in the controver-
sy. The right to criticize must carry some degree of
responsibility, particularly where it may jeopardize
the reputation of a private citizen.”
The decision of the Pennsylvania Court creates a con-
flict with many other federal decisions, including the
Third Civcuit Court of Appeals. Steaks Unlimited, Inc. v.
Deaner, 623 F.2d 264, 274-75 N. 49 (3rd Cir. 1980).
It is submitted that this Court should follow the Penn-
sylvania Supreme Court’s decision to require that the
burden of proving truth to be on the Defendant.
Re eee
26
Does the Hepps decision really make a difference con-
cerning this case?
Redco was forced to prove that their product was not a
‘‘killer.”” The fact that Redco had no evidence that it
had not killed was not good enough for the District
Court. Redco could not prove the negative.
In Hepps, the Court specifically recognized the difficul-
ty of putting the burden on the Plaintiff to prove falsity
previously noted in Corabi v. Curtis Publishing Com-
pany, 441 Pa. 432, 273 A.2d 899 (1971).°
...Where the accusation is totally general and
without specificity necessary for a response, the
absence of such a presumption would force the
Plaintiff in the unenviable position of proving the
negative.
Hepps, supra, 378 (citing Corabi, supra, at 450, 273 A.2d
at 907).
The Defendants presented no evidence that Redco rims
had killed people. The Defendant produced no evidence
that single piece rims are a safe alternative to multi-piece
rims. The Defendants produced no evidence that Redco
was knowingly selling a “‘killer’’ product for the profits
to be made.
The Defendant has produced no evidence that the
Plaintiff Redco has done any of the defamatory matters
charged in the program.
The Appellate Panel’s statement that, ‘‘the fact that at
the time of the broadcast no one had died from injuries
sustained in a Redco accident does not make the general
assertions about multi-piece rims untrue’, is a misap-
plication of law caused by the placement of proving falsi-
ty on Redco.
* Pennsylvania by statute hes not made truth an affirmative defense.
Act of July 9, 1976, P.L. 586 No. 142, §2; 42 CPSA §8343(b)(1).
!
27
The Restatement of Torts Second, §581A, comment g.,
p. 237, specifically holds that truth as a defense must be
determined at the time of the publication.
“Facts alleged to exist by the defamer may
subsequently occur, but his foresight or luck in
anticipating them will not protect him from liability
for stating their pre-existence.”’
CBS has not and cannot prove the truth of the
defamatory assertions of their program.
If the burden is put on the Defendant to prove truth,
then the question of whether or not the false and
defamatory statements made by CBS were true, becomes
a jury question as a matter of law. Restatement Torts
Second, §617B.
The Summary Judgment entered by the District Court
should be vacated and a jury trial orderev
28
IV. Did The District Court And Third Circuit Court
Of Appeals Err By Entering Summary Judgment Before
Redco Had Been Permitted Full Discovery?
Redco promptly filed a Motion to Compel when CBS
refused to release the ‘‘outtakes’’® and other documents,
notes, memoranda, and including the producer’s ‘‘blue
sheet’’ developed or used in the production of ‘Killer
Wheels.”’
In support of the Motion, counsel for Redco affirmed
that Redco desired to obtain an affidavit of Dr. Benson
after he had an opportunity to review the outtakes.
Redco also alleged the need to review the material to
prove that it was false in context.
Later in an affidavit represented by the Court to
enumerate facts alleged to be in dispute or need to be
identified, Redco again requested the outtakes of Jack
Bradley’s interview to determine if CBS falsely presented
the context of his interview.
The Court granted judgment without compelling any
discovering holding the discovery request moot.
Much if not all of the informating concerning the
truthfulness of both the factual assertions and the so
called truthful disclosed facts that formed the basis of
the shows “opinion” were in the exclusive control of
CBS.
Redco needed the discovery to allow its expert to pro-
vide additional professional opinion testimony to the
Court concerning what the average viewer would
understand and why, that the literal factual statements
though true were false in context and why. And, finally,
* The portions of the video taped interviews not televised in the pro-
gram.
destin
it ‘a
soo alah
29
because a visual medial was involved, how the
presentation of the viewed material created a meaning
different from what the written transcript allegedly
communicated. Appendix F, p. 112a.'°
‘60 Minutes” is a news program. CBS has published
written standards representing their news presentations
to be truthful and objective.
Mike Wallace, a CBS correspondent, testified in deposi-
tion that the published standards of CBS were pro-
mulgated and adopted to assure accurate, undistorted,
impartial and truthful presentations of news programs.
(R. 826a).
There is a kind of fraud involved when a national
broadcast company surreptitiously violates its public
statement of what it is broadcasting to the news viewers.
Discovery of the extent of the fraud was important to
preparation of the case.
The denial of Plaintiff’s discovery was fundamental er-
ror. The discovery rules were adopted to obtain the
fullest possible knowledge of the issues and facts before
trial. Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 2d
451, 67 S. Ct. 385 (1947).
'° Television is unique. Written transcripts cannot provide the context
of the message. For example, in a television drama, the portrayal of a
child with teasing eyes who gently takes her father’s hand, looks up
and says ‘I hate you”’ in a soft and musical voice. . .communicates to
the viewer a message that is completely opposite to the spoken
words. The importance of having outtakes in a television libel case
cannot be overemphasized. Where truth of the communication is at
issue or where the segments are argued as opinions it is only with the
outtakes that an expert can determine what question was asked and
answered in fact as compared to what was broadcast. An apparently
truthful statement on the broadcast may in fact be false in the actual
context given.
30
Conclusion
In “Killer Wheels”, CBS crossed the line that
separates the mere exploitation of a constitutional right
from its unreasonable abuse.
Redco has suffered substantial damages from the
premeditated publication of knowingly false and
defamatory information.
Redco has been denied the opportunity to prove its
claim before a jury because the Lower Federal Courts
have decided that the Constitution and libel law requires
this result.
Either the Lower Courts are in error or the law should
be changed.
Redco prays your Honorable Court to vacate the Sum-
mary Judgment entered in favor of CBS and ITHS.
Respectfully submitted,
LAUCKS & MONROE
By: DONALD L. REIHART
Donald L. Reihart
29 North Duke Street
York, Pennsylvania 17401
Tel: (716) 848-4900
Attorneys for Petitioner
APPENDIX A
Plaintiff's Complaint with Killer Wheels Transcript
IN THE
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
CE
REDCO CORPORATION,
Vs.
CBS, INC., and THE INSURANCE
INSTITUTE FOR HIGHWAY SAFETY.
tS acl D Sia AI AIO PS
Civil Action—Law
No.
Jury Trial Demanded
CPt ALPE LEP Shag 08 be
COMPLAINT
_ AND NOW, TO WIT, this 3rd day of March, 1982,
) comes Piaintiff Redco Corporation by its attorneys,
Laucks & Monroe, and files this Complaint of which the
' following is a statement:
att POA:
1.
Jurisdiction is founded on diversity of citizenship and
_ amount in controversy in excess of $10,000.00 (28 U.S.C.
) $1332(a)(1)).
2.
Plaintiff Redco Corporation is a small, family owned
' Pennsylvania corporation with offices in Red Lion, York
_ County, Pennsylvania.
2a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
3.
Defendant CBS, Inc., (hereinafter referred to as
CBS") is a New York corporation, with offices at 51
West 52nd Street, New York, New York, 10019.
4.
Defendant The Insurance Institute for Highway Safety
(hereinafter referred to as “IIHS”’) is a _ national
association with offices at 600 New Hampshire Avenue,
Suite 300, Washington, D. C., 20037.
5.
Plaintiff Redco Corporation is a manufacturer of multi-
piece rims for trucks, buses, and recreational vehicles.
6.
Plaintiff is one of five manufacturers of multi-piece
wheel rims in the United States.
G
Each of the acts of Defendants alleged herein was
accomplished by an employee or agent of Defendants
acting within the scope of his or her employment.
8.
On March 8, 1981, Defendant CBS, Inc. by its news
division CBS News broadcast a television program
entitled ‘Killer Wheels’ over nationwide network
television, which program was rebroadcast on September
6, 1981. The prograru was a part of the CBS magazine
‘60 Minutes.’ A copy of the transcript of said broadcast
is marked Exhibit A, attached hereto and incorporated
by reference.
3a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
9.
Defendant CBS represents its program ‘60 Minutes’’
to be factual non-fiction news-reporting program and not
a forum for fictional presentations.
10.
Millions of television viewers were exposed to each of
the two broadcasts.
COUNT I
TRADE LIBEL — DISPARAGEMENT
11.
All preceding and succeeding paragraphs are hereby
incorporated by reference.
12.
Defendant CBS by its news division in preparing and
editing the broadcast used statements, innuendo,
overstatements, unfair comparisons and _ distorted
analogies which were false and misleading concerning
Plaintiff and the products manufactured by Plaintiff.
13.
The false and misleading statements, innuendoes,
Overstatements, unfair comparisons, and _ distorted
analogies included but were not limited to the following.
A. Many truck drivers and tire mechanics call
multi-piece rims ‘killer wheels.”’
4a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
B. Accidents involving multi-piece wheel rims
according to United States Government statistics
have killed more people than have died in accidents
involving the Ford Pinto or the Firestone 500 tire.
C. The broadcast included a film prepared by
Defendant IIHS which film involved the use of a
severely altered multi-piece rim prepared for the sole
purpose of making the rim explode.
D. When a multi-piece rim explodes it hits
whatever is in the way, which is ‘‘very often” a
serviceman's head.
E. Multi-piece rims spontaneously fall out of
place.
F. It is untrue that multi-piece rims are not safe
unless improperly serviced.
G. Accidents involving multi-piece rims often
involve innocent bystanders.
H. The multi-piece rim is more hazardous than
the single piece rim.
I. ‘A good number of accidents occur after the
tire is inflated and out of the safety cage.”
J. Paul Hykes, a former chief engineer of a multi-
piece rim manufacturer, is of the opinion that multi-
piece rims are dangerous.
K. Data showing problems regarding one single
model of multi-piece rims applies to all multi-piece
rims althuugh designed differently.
5a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
14.
Defendant CBS, Inc. knew that the broadcast was
false and misleading or in the alternative acted in
reckless disregard of the truth of the broadcast for the
following reasons:
A. Defendant prepared the broadcast without
collecting sufficient objective evidence and relied
upon data which formed no technical basis for the
conclusions presented in the broadcast.
B. Defendant had a Value Engineering report
which showed that the multi-piece rim shown in the
Insurance Institute for Highway Safety film was
severely altered for the sole purpose of making the
rim explode. Despite this information Defendant
displayed the film without any explanatory
comment.
C. Defendant had been provided with a report
titled ‘“‘Phase III” and data collected by Failure
Analysis Associates, a leading failure analysis firm
which found that multi-piece rims are safe
unless improperly serviced. A copy of the Phase III
report had been mailed to Defendant. Defendant
made no reference to this report in its broadcast.
D. Defendant knew that the letter by Paul
Hykes read in the broadcast no longer represented
Mr. Hykes’ opinion. Mr. Hykes had told Defendant
that he had recanted his previous opinion and
actually gave Defendant full data to back up his
new opinion that multi-piece rims are safe.
6a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
15.
The publicity presented by Defendant CBS in its
broadcast was solicited by Defendant IIHS.
16.
Defendant IIHS provided much of the unfair, slanted,
improper evidence used by Defendant CBS in its
program, including, inter alia: Defendant IIHS prepared
the film used on the presentation ‘‘Killer Wheels’’ which
purported to show the hazards of explosion of multi-piece
rims and Defendant IIHS knew that such explosions
could only be achieved by altering the product severely
from its original manufactured form in a fashion which
does not occur under normal use.
17.
Defendant IIHS by its agents, servants and employees
presented televised statements «n Defendant CBS's
_ program ‘‘Killer Wheels’ which televised statements
Defendant knew or in the exercise of due care should
have known had no valid factual basis. Said testimony
included but is not limited to:
A. Multi-piece rims explode ‘“‘like a shell out of a
cannon into whatever is in the way which is very
often a serviceman’s head.”’
B. That IIHS has reported deaths involving
multi-piece rim explosions “but we are reporting
what's known and we have every reason to believe
that what’s known is just the tip of the iceberg
because no data are collected on these.”
C. That the accidents involving multi-piece rim
explosions “often involve innocent bystanders.”
7a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
18.
Defendant IIHS presented to Defendant CBS
anecdotal examples of multi-piece rim explosions for use
to malign the product per se when Defendant knew or in
the exercise of due care should have known that such
incidents involved misuse or improper servicing of the
said multi-piece rims.
19.
Defendant IIHS publicized through Defendant CBS in
the ‘Killer Wheels’ program, its conclusion that multi-
piece rims should not be available for sale when
Defendant IIHS knew from its own in-house engineer
that it had no sound technical basis to arrive at such
conclusion.
20.
Defendant IIHS represented to Defendant CBS thai
the multi-piece rim was more hazardous than the single
piece rim when Defendant IIHS had done no studies on
single piece rims and knew from information vrovided to
it by a qualified engineer that multi-piece rims are as
safe as single piece rims.
21.
The data which Defendant IIHS presented to
Defendant CBS was not collected scientifically but was
rather collected in an effort to achieve the pre-
determined result that multi-piece rims are unsafe.
8a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
22.
Defendant IIHS knew that the material it provided to
Defendant CBS was false and misleading or in the
alternative presented the material to Defendant CBS in
reckless disregard of the truth.
23.
Defendants’ disparagement of Plaintiff's product as set
forth in this Complaint was done without privilege.
24.
Defendants’ disparagement of Plaintiff's product as set
forth in this Complaint was done for the purpose of
having multi-piece rims removed from the market.
25.
Defendants recognized or should have recognized that
their actions would result in pecuniary loss to Plaintiff
Redco Corporation by causing customer loss, loss of
sales, rise in insurance premiums, and an increase in
unfounded products liability law suits.
26.
As a result of Defendants’ conduct, Plaintiff has
suffered a loss in profits in excess of $10,000.00.
27.
As a result of Defendants’ conduct, Plaintiff's
insurance premiums were raised from $4.00 per $1,000.00
worth of coverage to $15.00 per $1,000.00 worth of
coverage despite the fact that Plaintiff has the best
safety record of all manufacturers of multi-piece rims.
9a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
28.
Products liability law suits against Plaintiff tripled as
a result of the broadcast sensitizing Plaintiff to be the
target of unfounded products liability suits.
29.
As a result of Defendants’ conduct, Plaintiff has been
exposed to bias and prejudice of the public which forms
the jury pool in any products liability suit brought
against Plaintiff.
30.
The conduct of Defendants was outrageous and
Plaintiff is entitled to punitive damages.
WHEREFORE, Plaintiff Redco Corporation requests
vour Honorable Court to award compensatory damages
.n excess of $10,000.00 together with punitive damages,
interest and cost of suit.
COUNT II
DEFAMATION
31.
All preceding and succeeding paragraphs are hereby
incorporated by reference.
32.
During the above stated broadcasts of ‘Killer
Wheels’, and in preparation thereof, Defendants made
false and defamatory statements and _ innuendoes
concerning Redco Corporation, including but not limited
to:
10a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
A. That Plaintiff makes a killer product.
B. That Plaintiff is unethical.
C. That Plaintiff is more interested in money
than in the lives of human beings.
D. That Plaintiff and other manufacturers
refused to participate in the program ‘‘Killer
Wheels.”’
E. That if Plaintiff Redco Corporation does not
recall all of its multi-piece rim product, it is
unethical.
33.
The defamatory statements made by Defendants were
exposed to millions of people in two unprivileged
broadcasts of the program ‘‘Killer Wheels.”’
34.
Defendants knew that the statements and innuendoes
were false and defamatory or in the alternative acted in
reckless disregard of the truth for the reasons stated in
Count I, supra.
35.
Defendants knew or should have known that said false
and defamatory statements would harm the reputation of
Plaintiff Redco Corporation by lowering it in the
estimation of the community and by detering customers
and other persons from associating or dealing with it,
causing a loss of customers, loss of sales, an increase in
insurance premiums, and other detrimental results.
lla
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
36.
As a result of Defendants’ false and defamatory
statements and innuendoes Plaintiff has suffered a loss
of reputation.
37.
As a result of Defendants’ conduct, Plaintiff has
suffered a loss in profits in excess of $10,000.00.
38.
As a result of Defendants’ conduct, Plaintiff's
insurance premiums were raised from $4.00 per $1,000.00
worth of coverage to $15.00 per $1,000.00 worth of
coverage despite the fact that Plaintiff has the best
safety record of all manufacturers of multi-piece rims.
39.
Products liability law suits against Plaintiff tripled as
a result of the broadcast sensitizing Plaintiff to be the
target of unfounded products liability suits.
40.
As a result of Defendants’ conduct, Plaintiff has been
exposed to bias and prejudice of the public which forms
the jury pool in any products liability suit brought
against Plaintiff.
a.
The conduct of Defendants was outrageous and
Plaintiff is entitled to punitive damages.
WHEREFORE, Plaintiff Redco Corporation requests
your Honorable Court to award compensatory damages
in excess of $10,000.00 together with punitive damages,
interest and costs of suit.
12a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
COUNT III
INTENTIONAL INTERFERENCE WITH EXISTING
AND PROSPECTIVE BUSINESS RELATION
42
All preceding and succeeding paragraphs are hereby
incorporated by reference.
43.
Prior to March 8, 1981, Plaintiff had a business
relationship with American Universal Insurance
Company.
44.
Plaintiff's business relationship with American
Universal Insurance Company involved a contract of
products liability insurance whereby American Universal
insured Plaintiff for products liability of its product,
multi-piece rims.
45.
Prior to March 8, 1981, American Universal Insurance
Company provided products liability coverage to
Plaintiff at the rate of $4.00 per $1,000.00 of coverage.
46.
On March 8, 1981, Defendant CBS, Inc. after
solicitation by Defendant IIHS broadcast a program
titled ‘‘Killer Wheels’’ over nationwide television over the
CBS television network.
47.
Said program was rebroadcast on September 6, 1981.
13a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
48.
After the publications of the misrepresentations
included in the said broadcast ‘Killer Wheels’ as set
forth hereinabove, Plaintiff's business relationship with
American Universal Insurance Company was altered
dramatically.
49.
After the above-mentioned broadcast of ‘‘Killer
Wheels’’, American Universal Insurance Company raised
its rate for products liability insurance for Plaintiff's
product from $4.00 per $1,000.00 worth of coverage to
$15.00 per $1,000.00 worth of coverage.
50.
Although Plaintiff sought products liability insurance
from other insurers, it was unable after Defendant CBS's
broadcast of “Killer Wheels” to procure insurance on
terms comparable to those it received prior to the
broadcast.
51.
In addition, prior to March 8, 1981, Plaintiff enjoyed
continuing business relationships with purchasers of its
multi-piece rim line.
52.
Further, Plaintiff's reputation as a manufacturer of
multi-piece rims prior to March 8, 1981, gave rise to a
reasonable likelihood and probability that additional
purchasers would consummate a business relationship
with Plaintiff, and prior customers would make
additional purchases of Plaintiff's product.
l4a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
53.
After Defendant CBS's broadcasts of the program
“Killer Wheels” on March 8, 1981, and September 6,
1981, Plaintiff suffered serious impairment of its
business relationship with its existing and prospective
customers.
54.
The loss in Plaintiff's sales relationships included, inter
alia, ané@ is demonstrated by Plaintiff's gross sales
figures in its sales of multi-piece rims by comparing the
year preceding and the year of Defendant CBS's
broadcasts of ‘‘Killer Wheels” as follows:
A. In March of 1980 (1 year prior to the
broadcast) Plaintiff's sales of multi-piece rims were
in the amount of $358,694.74.
B. In April of 1980 Plaintiff's sales of multi-piece
rims rose 46% to the figure of $523,717.91.
A and 8B, supra, demonstrate the sales
relationships of Plaintiff with its customers prior to
the broadcast.
C. In March of 1981 (the month of the first
broadcast) Plaintiff's sales of multi-piece rims
amounted to $336,629.37.
D. In April of 1981 (the month following the
initial broadcast of “Killer Wheels’’) Plaintiff's sales
dropped 35% to a total of $217,759.70.
These figures demonstrate the loss of sales
relationships suffered by Plaintiff as a result of
Defendant's broadcast.
15a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
56.
In September of 1980 (the year preceding Defendant
CBS's broadcast) Plaintiff's sales of multi-piece rims
totaled $380,096.51. In October of 1980 (again the year
before the broadcast) Plaintiff's sales of multi-piece rims
were up 19% to a total of $542,835.51.
56.
In September of 1981 (the month of the second
broadcast of ‘Killer Wheels’’) total sales of Plaintiff were
$484,511.44. In October of 1981 (the month following
Defendant CBS’s second broadcast) Plaintiff's sales were
down to $234,708.95.
57.
Defendant CBS knew or in the exercise of due care
should have known that the broadcast of its program
‘Killer Wheels’’ was substantially certain to result in
preventing the formation of business relationships by
Plaintiff in both saies and insurance and/or in damaging
the existing business relations of Plaintiff.
58.
Defendant IIHS solicited the publicity provided by the
program with the intent to damage the existing business
relations of Plaintiff and to prevent the formation of new
business relations by Plaintiff; in the alternative
Defendant ITHS knew that damage to Plaintiff's existing
and prospective business relationships was substantially
certain to result from the publicity solicited.
l6a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
59.
Defendants’ interference with Plaintiff's business
relations as set forth was done without privilege.
60.
Defendant CBS's interference in Plaintiff's business
relations by its broadcast of ‘Killer Wheels’ was
improper in that:
A. The information provided by said broadcast
was based upon a lack of objective evidence.
B. The information provided by the _ said
broadcast was biased and collected in an effort to
achieve the pre-determined result of maligning
multi-piece rims.
C. Although the data purported to be scientific,
it, in fact, formed no technical basis for the
conclusions presented in the broadcast.
D. The broadcast included the presentation oi
film prepared by Defendant IIHS which film
involved the use of a severely altered multi-piece rim
for the sole purpose of making the rim explode.
E. Defendant’s broadcast by innuendo suggested
that multi-piece rims spontaneously ‘‘fall out of
place’’ when in fact this is not true of Plaintiff's
product.
F. The said broadcast suggested that accidents
involving multi-piece rims “often inVolve innocent
bystanders’’ when Defendant knew or in the exercise
of due care should have known that such was not
true of Plaintiff's product.
17a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
G. Defendant’s broadcast ignored the data which
suggested that multi-piece rims are safe unless
improperly serviced.
H. Defendant in its broadcast used a letter from
Paul Hykes, a rim engineer which letter critiqued a
type of multi-piece rim when Hykes told Defendant
that he had recanted that opinion and had provided
to Defendant full data to backup his revised opinion
that multi-piece rims are safe.
I. Defendant extrapolated data regarding a
single model of multi-piece rims to suggest by
innuendo that all multi-piece rims, although
designed differently, had the same problems, when
Defendant knew or in the exercise of due care should
have known that such was not true of Plaintiff's
product.
J. Defendant in its broadcast used innuendo,
overstatement, distorted analogy, and unwarranted
assumption to malign Plaintiff's product and to
interfere with Plaintiff's contractual relationships
with its insurers and its existing and prospective
customers.
K. Defendant by innuendo suggested that the
multi-piece rim was more hazardous than the single
piece rim when Defendant had done no studies on
single piece rims and knew from information
provided to it by a qualified engineer that multi-
piece rims are as safe as single piece rims.
L. Defendant by innuendo labeled _ the
manufacturers of multi-piece rims, including
Plaintiff, unethical.
18a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
61.
Defendant IIHS likewise has intentionally and
improperly interferred with Plaintiff's existing and
prospective contractual relations, as follows:
A. With the express purpose of removing multi-
piece rims from availability on the market, IIHS
solicited publicity presented by Defendant CBS in
its broadcast ‘‘Killer Wheels’’.
B. Defendant IIHS provided much of the unfair,
slanted, improper information used by Defendant
CBS in its program, including, inter alia, Defendant
IIHS prepared the film used on the presentation
‘Killer Wheels’ which purported to show the
hazards of explosion of multi-piece rims when
Defendant IIHS knew that such explosions could
only be achieved by altering the product severely
from its originally manufactured form in a fashion
which does not occur under normal use.
C. Defendant IIHS by its agents, servants and
employees presented testimony on Defendant CBS’s
program ‘Killer Wheels’’ which testimony
Defendant knew or in the exercise of due care should
have known had no factual basis.
D. Said testimony of Defendant IIHS included
but is not limited to, the following:
(1) that multi-piece rims explode ‘‘like a shell out
of a cannon into whatever is in the way which is
very often a serviceman’s head;
19a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
(2) that IIHS has reported deaths involving
multi-piece rim explosions, “but we are reporting
what’s known, and we have every reasov: to believe
that what's known is just the tip of the iceberg
because no data are collected on these;
(3) that the accidents involving multi-piece rim
explosions ‘‘often involve innocent bystanders.”
E. Defendant IIHS presented to Defendant CBS
anecdotal examples of multi-piece rim explosions for
use to malign the product per se when Defendants
knew or in the exercise of due care should have
known that such incidents involved misuse or
improper servicing of the said multi-piece rims.
F. Defendant IIHS publicized through Defendant
CBS in the “Killer Wheels’ program, its conclusion
that multi-piece rims should not be available for sale
when Defendant IIHS knew from its own in-house
engineer that it had no sound technical basis to
arrive at such conclusion.
G. Defendant by innuendo suggested that the
multi-piece rim was more hazardous than the single
piece rim, when Defendant had done rv studies on
single piece rims and knew frem_ information
provided to it by a qualified engineer that multi-
piece rims are as safe as single piece rims.
H. Defendant by innuendo labelled the
manufacturers of multi-piece rims, including
Plaintiff, unethical.
20a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
62.
As a result of Defendants’ interference with Plaintiff’s
contractual relationships both existing and prospective,
Plaintiff has suffered pecuniary damages in excess of
$10,000.00.
63.
In addition Plaintiff has suffered damage to its
reputation.
64.
_ The conduct of Defendant has exposed Plaintiff to
unfounded products liability lawsuits.
65.
Defendant's conduct has further exposed Plaintiff to
bias and prejudice in the public which forms the jury
pool in any products liability suit brought against
Plaintiff.
66.
The conduct of Defendants was outrageous and
Plaintiff is entitled to punitive damages.
WHEREFORE, Plaintiff Redco Corporation requests
your Honorable Court to award compensatory damages
in excess of $10,000.00, together with punitive damages,
interest and the costs of suit.
2la
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
COUNT IV
CONSPIRACY
67.
All preceding and succeeding paragraphs are hereby
incorporated by reference.
68.
Defendants IIHS and CBS by their agents, servants
and employees, with the intent to injure Plaintiff
colluded, agreed and conspired to prepare, edit and
broadcast the program ‘Killer Wheels” in an unlawful
fashion.
69.
Defendants CBS and IIHS agreed to present the
broadcast ‘‘Killer Wheels’’ for the object of effecting the
unavailability of multi-piece rims in the American
market.
70.
Defendants by their agents, servants and employees
met on more than one occasion for the purposes of
discussing the preparation of this biased and unfair
program.
<a>
Defendant IIHS provided to Defendant CBS the unfair
demonstration film which was used in the broadcast of
‘Killer Wheels.”’
22a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
72.
As a result of Defendants’ conduct, Plaintiff has
suffered a loss of reputation.
73.
As a result of Defendants’ conduct, Plaintiff has
suffered a loss in profits in excess of $10,000.00.
74.
As a result of Defendants’ conduct, Plaintiff's
insurance premiums were raised from $4.00 per $1,000.00
worth of coverage to $15.00 per $1,000.00 worth of
coverage despite the fact that Plaintiff has the best
safety record of all manufacturers of multi-piece rims.
75.
Products liability law suits ageinst Plaintiff tripled as
a result of the broadcast sensitizing Plaintiff to be the
target of unfounded products liability suits.
76.
As a result of Defendants’ conduct, Plaintiff has been
exposed to bias and prejudice of the public which forms
the jury pool in any products liability suit brought
against Plaintiff.
#0.
The conduct of Defendants was outrageous and
Plaintiff is entitled to punitive damages.
23a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
WHEREFORE, Plaintiff Redco Corporation requests
your Honorable Court to award compensatory damages
in excess of $10,000.00 together with punitive damages,
interest and costs of suit.
Respectfully submitted,
LAUCKS & MONROE
By:
Donald L. Reihart
By:
Lillian M. Morgan
By:
Sharon E. Myers
24a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
COMMONWEALTH OF PENNSYLVANIA Ss
COUNTY OF YORK ,
Before me, the undersigned officer, personally
appeared J. B. SECHRIST, who acknowledged himself to
be the Vice President of Redco Corporation, and he is
authorized to make this Affidavit on its behalf and that
the facts contained in the foregoing Complaint are true
and correct to the best of his information, knowledge and
belief.
is) J. B. SECHRIST
J. B. Sechrist
Sworn and subscribed to before me
this 3rd day of March, 1982.
Susan M. Anderson, Notary Public
York, York County, Pa.
My Commission Expires March 19, 1985.
25a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
60 MINUTES
Volume XIII, Number 25
as broadcast over the
CBS TELEVISION NETWORK
Sunday, March 8, 1981
7:00 - 8:00 PM, EST
With CBS News Correspondents
Mike Wallace, Morley Safer, Dan Rather
and Harry Reasoner
“KILLER WHEELS” — Produced by
Allan Maraynes
“ROBERTA GOES TO CHINA” — Produced by
Igor Oganesoff
“CRIB DEATH” — Produced by
Jim Jackson
PRODUCED BY CBS NEWS
Copywright—MCMLX XXI CBS Inc.
ALL RIGHTS RESERVED
26a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
MIKE WALLACE: This test film by the Insurance
Institute for Highway Safety was made with a 250-
pound dummy, but it shows graphically what can happen
when a wheel rim explodes. (Sound of explosion) Unlike
the tire on your automobile, which rests on a single-piece
rim like this one, the tires on most of the trucks and
buses on the road rest on a rim made of two or three
pieces, like this one.
GARY GARDNER (lawyer): These things will kill you,
if you don’t have the required knowledge to assemble
them.
(Roberta Peters singing)
DAN RATHER: During the years of the Cultural
Revolution, the Chinese became closet musicians,
teachers and opera singers, trying hard to preserve what
they knew and remembered of Western opera.
ROBERTA PETERS: They have a hunger for Western
music. I mean, they are starved to hear Western music.
(Roberta Peters singing ‘““The Sound of Music’’)
HARRY REASONER: Derek Mahr was born on
October 10th, 1980, in New York, a normal baby,
healthy, large for his age. One night when the baby was
six weeks old, his mother went to the crib to wake him
after a four-hour nap. She found that the baby had died
in the crib during those four hours.
Mititemseiie os
cia
Appendix A—Plaintifj’s Complaint with
Killer Wheels Transcript.
At Massachusetts General Hospital in Boston, efforts
are being made to single out the high-risk babies. If the
tests show a high risk, the parents are brought into the
hospital, and usually a home-monitoring system is
advised.
(Electronic sound)
WALLACE: I’m Mike Wallace.
MORLEY SAFER: I'm Morley Safer.
RATHER: I’m Dan Rather.
REASONER: I'm Harry Reasoner. Those stories and
more tonight on 60 MINUTES.
(Announcements)
“KILLER WHEELS”
MIKE WALLACE: Killer wheels—that’s what many
truck drivers and tire mechanics are calling some wheel
rims now riding on our highways. The wheel rim is that
steel part on which a tire is mounted. But we're talking
here not about the wheel rims on cars; instead, we're
dealing only with the wheel rims on trucks and buses
and some campers. They are called multi-piece wheel
rims, and accidents involving them, according to U.S.
government statistics, have killed more people than have
died in accidents involving the Ford Pinto or the
Firestone 500 tire.
So, it’s no surprise that there has been a call to ban
these wheel rims from the highways. That is part of our
report. But this is also a story about the companies that
28a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
make these wheels, about decisions made by large
corporations in weighing the costs and the benefits of
selling potentially dangerous products. And in case
you're wondering what an accident involving a truck rim
is like, take a look at this.
(Natural sound from simulated car crash)
This test film by the Insurance Institute for Highway
Safety was made with a 250-pound dummy, but it shows
graphically what can happen when a wheel rim explodes.
(Sound of explosion)
Ben Kelley of the Insurance Institute explains how the
accidents happen.
BEN KELLEY: Its design causes a piece of metal,
weighing anywhere from 10 to 30 pounds, to be held on
the outside of a tire tnat is under tremendous air
pressure. And if that metal, for any reason, dislodges, it
fires off like a shell out of a cannon into whatever is in
the way, which is very often a serviceman’s head.
WALLACE: Now that means that, unlike the tire on
your automobile, which rests on a single-piece rim like
this one, the tires on most of the trucks and buses on the
road rest on a rim made of two or three pieces, like this
one. One piece interlocks with the other. And when the
tube in the tire is inflated, tension is built up between
the two pieces. It’s when those two pieces fail out of
place that the pressure can cause them to separate, to
explode.
Just last year, at this service station in Clayton,
Georgia, three young men stopped to put air in a truck
tire. Lloyd James, Sr., the father of one of them, told us
what happened next.
29a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
LLOYD JAMES, SR.: The next thing I knew, I have a
telephone call at home, said there was a bad accident
here at the station. And we found out that the tire and
wheel had exploded and hit my son in the face and the
nose part. It separated his head here.
WALLACE: His son, 23-year-old Spud James, had been
married just two months when he suffered permanent
brain damage after a chunk of steel from a multi-piece
rim exploded into his head. He can no longer speak and
he is paralyzed on one side of his body.
It was difficult for us to imagine the kind of force behind
an exploding wheel rim, but this film, produced by
Goodyear, one of the manufacturers of multi-piece rims,
tells the tale.
NARRATOR (Goodyear film): The sheer power
generated by an exploding tire-and-rim assembly is
almost unbelieveble. Did you know that a tire, inflated to
75 PSI, has the pewer in an explosive situation to hurl a
16-pound bowling “«}! a full half-mile? This is enough
force to raise a 3,000-pound car 15 feet off the ground.
WALLACE: Goodyear made this training film to point
up what can happen if multi-piece rims are not handled
correctly.
NARRATOR (Goodyear film): Loosening any of the
components before complete deflation may cause the
assembly to come apart with explosive force, like a
bomb. (Sound of explosion) And you see what can result
from that.
30a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
WALLACE: Goodyear and the other manufacturers
recognize the hazards connected with multi-piece rims
during deflation or inflation of the tire; but they say
accidents occur only when proper servicing procedures
aren't followed, and they say accidents involving the rim
are extremely rare. But Ben Kelley says that’s not so,
and he has so far reported to the federal government
more than a hundred deaths and at least 400 injuries
involving multi-piece rim explosions.
KELLEY: But we are reporting what’s known, and we
have every reason to believe that what’s known is just
the tip of the iceberg, because no data are collected on
these.
WALLACE: And, says Kelley, the accidents often
involve innocent bystanders. This test film shows what
might happen when an unknowing vacationer tries to put
air in the tire on his camper.
(Sound of explosion)
KELLEY: We know of the—what we call the “innocent
bystander’”’ accident—somebody walking by a service
shop or walking by a parked truck and having one of
these go. And we know of these so-called freak
accidents—which aren’t so freak, i: turns out—in which
the rim flew off and went into somebody’s car
and—and—and demolished the people inside.
Now, the—the irony is that there is a—an identical
design in which all of the metal is combined—the single-
piece wheel, in which it’s all in one piece. There’s nothing
separate from the wheel.
WALLACE: Right.
Arietta 95
3la
Appendix A—Plaintiff'’s Complaint with
Killer Wheels Transcript.
KELLEY: And that can be used for almost every size
of truck that operates over the road today.
WALLACE: Why, then, don’t truck drivers prefer the
single-piece to the multi-piece rim? Some say it’s because
it is much more difficult to mount and service the single-
piece, and it is for that reason, say the manufacturers,
that its entry onto the market has been slow. But back
to multi-piece rims.
The tire makers insist that if multi-piece rims are
inflated in a safety cage like this one, accidents will be
prevented. But it turns out that a good number of
accidents occur after the tire is inflated and out of the
cage. That is how Mary Ehmann’s son, Eric, was killed
after his boss told him to repair a truck tire.
MARY EHMANN: He inflated it, took it out of the
cage, rolled it across the floor to lay it down beside the
truck, and when he laid it down, the impact (slaps
hands) of hitting the floor—apparently something
wasn't quite right, or maybe there was a piece of rust or
something there—
WALLACE: Hm-mmm.
EHMANN: —it released the rim. And, of course, he
was leaning over it. So the rim blew, just like a missile,
and went through the top of his head and removed the
frontal part of his skull. As people were coming to
console us, they would say, “Oh, I remember that
happened to So-and-So. I know somebody that—a child
lost an arm or lost an eye.’’ A man that worked over in
my husband’s office said a man in their town was
decapitated by it. And before long, I had 10 to 15 people
say they knew of this happening, and then I thought this
is not the freak thing I thought it was.
32a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
WALLACE: It never crossed your mind to sue the
garage owner or to sue Firestone or Goodyear people?
EHMANN: I did a lot of praying on it, of which way
should I go. And remembering Eric the way he was—he
was not vindictive, either—and I don’t think he would
have wanted me to.
WALLACE: But someone who did sue was this man,
Clifford Griggs. He was hit in the face with a multi-piece
rim and now suffers from traumatic epilepsy. His face
was reconstructed with plastic surgery. The wheel on his
truck exploded because parts from one rim were a
mismatch with parts from another. And his lawyer, Gary
Gardner, held Firestone, the manufacturer, responsible.
GARY GARDNER: They could very easily have
stamped a warning on these pieces. Just say, ‘“‘Do not
handle. Danger.’’ You know, “These things will kill you
if you don’t have the required knowledge to assemble
them.” Their obvious defense was. as they have tried to
defend in all the cases, that wuen you stamp those
things on the rim, you create stress points. And our
engineer said that’s poppycock. They didn’t have any
trouble stamping their name on it.
WALLACE: A jury awarded Clifford Griggs more
than a quarter-million dollars, after Gardner contended
that Firestone, the manufacturer of the rim, had a duty
to print a warning on each rim telling users about the
risks involved in assembling them. It’s interesting to
note that after the Griggs’ decision, Firestone did
consider putting warning labels on multi-piece rims. One
internal memo says: ‘‘As interpreted by the government
and the courts, we do have a duty to warn.’’ And goes on
33a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
to say, ‘“We would not want to use the word ‘kill’, as this
would have a negative reaction from our customers.”
Firestone and Goodyear even went so far as to write
sample warnings, but they didn’t use them.
GARDNER: If they put a warning on now—they know
that they have got millions of these rims out in the
pub—public’s hand right now—they are either going to
have to recall those immediately, which will cost them a
substantial sum of money, and they know it, or the
lawyers are going to be able to show that now you put
the warning on the new ones, why didn’t you recall the
old ones? Why didn’t you get on television and tell the
public, don’t handle these rims unless you’re trained to
do so? Because that would cost them money, that’s why
they won't do it.
WALLACE: There are four major manufacturers of
multi-piece rims: Firestone, Goodyear, the Budd
Company, and the Kelsey-Hayes Corporation. We asked
them to respond to our questions for this broadcast, but
for various reasons, including their involvement in
numerous lawsuits over multi-piece-rim accidents, they
declined.
Firestone, however, did tell us that accidents involving
multi-piece rims are so rare that they don’t merit this
kind of attention.
As we mentioned earlier, the manufacturers insist the
multi-piece rim is no more hazardous than the single-
piece. Still, NHTSA, the National Highway Traffic
Safety Administration, is now considering a proposal
that they be banned from the highways. And there are
some multi-piece rims considered so hazardous by the
34a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
government that NHTSA has asked the manufacturers
voluntarily to recall them, but they have refused. One
such rim is the RH5-degree rim made by Firestone, the
Budd Company, and Kelsey-Hayes. It is no longer in
production, but there are millions of them still on the
road. One former executive did agree to talk to us about
the RH5 that his company made. Jack Bradley, former
head of the Wheel Engineering Division of the Budd
Company.
Mr. Bradley, are multi-piece rims dangerous?
JACK BRADLEY: Not—absolutely not.
WALLACE: Not dangerous?
BRADLEY: They are not dangerous.
WALLACE: No more dangerous than the so-called
single-piece rim?
BRADLEY: Not at all. The single-piece rim and—and
the—and the multi-piece rims are both safe rims. And
the incidence of problems with one or the other is not
significantly different. But to my knowledge, it’s always
been a case of—of poor maintenance or the—the people
got careless.
WALLACE: So, the Budd people were, by and large,
pretty satisfied that the multi-piece rim, particularly the
RH5, was a safe product?
BRADLEY: Yes.
WALLACE: I then read Bradley a letter from Budd’s
former chief engineer, a man named Paul Hykes, who
wrote about the RH5 after he left the Budd Company.
aA ici EAE S08 ie i ch
35a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
He says in a letter: ‘It is more subject to dangerous
wear than other designs. The only time that this
dangerous wear can be detected is when the rim is
dismantled.”’ He says: ‘““‘The RH5 can be’ put together
improperly and subsequently blown apart when new.
From the foregoing, you can readily understand why I
ask the question, ‘Why has this rim not been removed
from the market?’’’ Now this was your boss back in
1969, Paul Hykes, chief engineer of the Budd Company,
suggesting the rim should be taken off the market.
BRADLEY: Then as—as close as I was to Paul, I never
realized that he had these feelings about the RH5-degree
rim.
WALLACE: You didn’t know that he and others had
those feelings about the RH5 rim?
BRADLEY: I haven’t—I’ve—I—I—I—I knew—I-I’m—I
swear that I did not know while Paul was at the Budd
Company that he objected to the RH5-degree rim.
WALLACE: But if Bradley didn’t know about Hykes’
feelings while the former chief engineer was with the
company, nonetheless Bradley did consider the effects of
such criticism. I read back to him a memo he himself had
written about the Hykes letter.
(Reading memo): “I’m certain we will be asked in the
near future to comment on Mr. Hykes’ letter. Any
publicity along chis line could be very detrimental to the
Budd image, particularly with the interest that the
Department of Transportation has on safety at this
time.”’
BRADLEY: What—what did I say? I said I didn’t
want a lot of publicity. Naturally. Who would?
36a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
WALLACE: Bradley still insisted the multi-piece rim
was no more hazardous than the single-piece rim. But we
had learned of an industry memorandum that said
Bradley might have been pressured into changing his
presentation at Department of Transportation hearings
back in 1970, a presentation that would have shown that
some multi-piece rims could not pass certain safety tests,
and that the industry might be better off moving to the
single-piece rim.
(Bradley laughs softly)
You smile, but isn’t it a fact that what you were going to
say at those Department of Transportation hearings was
that multi-piece rims would not pass the sudden-
deflation test at 60 miles per hour and that the industry
should go to the single-piece rim?
BRADLEY: Yes, I had planned that.
WALLACE: Why?
BRADLEY: I—I—I-—I said that I—I had—I showed my
presentation to one of our very good customers, and—
WALLACE: Who?
BRADLEY: (Laughs) It was the Ford Motor Company.
WALLACE: Yes?
BRADLEY: And they suggested that I—that—and
they only suggestxi, they didn’t tell me, they just
suggested if I took out two of the slides, my presentation
would not be basically changed and it would make it—it
wouldn’t—it wouldn’t be quite as damaging to the—to
the industry. Not—not because the single-piece is
basically safer than the multi-piece.
WALLACE: Then why?
37a
Appendix A—Plaintiff’s Complaint with
Killer Wheels Transcript.
BRADLEY: Because we—it was one way of—of taking
some of the pressure of off us from—from—from the
government. And—and from our standpoint—
WALLACE: What kind of pressure? Why was the—
BRADLEY: All—all of the things you’re saying there.
WALLACE: That the RH5 or the multi-piece was less
safe than the single-piece?
BRADLEY: That’s what they were saying.
WALLACE: It turns out that these were not the only
doubts the industry was having about multi-piece rims.
There is this report written by two engineers at
Goodyear’s Motor Wheel Division: “The parts are
inherently dangerous, both on the highway and in the
shop.” It says: ““When in use, the dangerous condition is
often masked.’’ And it goes on: ‘‘Any positive action to
get parts out of use will probably result in more liability
suits and higher damage awards. But at the same time,
it should reduce the number of accidents.”
But the question remains: If multi-piece wheel rims are
so dangerous, why hasn’t the U.S. government ordered
them off the road? Well, it turns out that the
government’s hands may be tied, for although the
government is looking into a ruling that would ban
future production of all multi-piece rims, the federal
statute of liritations forbids the mandatory recall of
most of the RH5 wheel rims, because they were
manufactured so long ago.
Therefore, the responsibility would seem to fall upon the
manufacturers.
JOAN CLAYBROOK: Absolutely.
38a
Appendix A—Plaintiff's Complaint with
Killer Wheels Transcript.
WALLACE: Joan Claybrook, former head of the
National Highway Traffic Safety Administration.
CLAYBROOK: It falls upon the manufacturers. And
you haven't asked me if I were the manufacturer would I
recall this, and I think that the answer is that it’s the
only ethical thing for the manufacturer to do.
WALLACE: Why do you think they refused?
CLAYBROOK: If they were to anow—acknowledge a
defect by recalling this wheel, then that would be used
against them in those product-liability cases. And it is,
in most cases such as this, a financial decision by the
manufacturer.
WALLACE: So, it comes down to money versus human
life?
CLAYBROOK: There’s no question about that. It
comes down to that in the manufacture of cars today.
Cars are not manufactured as safely as they can be, and
the answer is money. That is the reason why not, and
even though it’s pennies in many cases.
WALLACE: Do you think it would be a good idea now
to recall, for instance, the RH5’s that are still on the
road?
BRADLEY: I-—TI see—I really don't see any—any point
in recalling those versus any other, like—as I pointed out
before. They were the safest part we ever made, on—on a
statistical basis.
WALLACE: And the accidents that have happened,
you simply have to buy as part of the—part of the
bargain, in a—in a sense?
BRADLEY: This is the way life is.
(Announcements) —
39a
APPENDIX B
Request for Findings of Fact
IN THE
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
- REDCO CORPORATION,
Plaintiff
V.
CBS, INC. and THE INSURANCE INSTITUTE
FOR HIGHWAY SAFETY,
Defendants.
Civil Action No. 82-0263.
Jury Trial Demanded.
PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Redco Corporation moves your Honorable Court to
find the following facts and conclusions of law to be
applicable in the above case:
3.
On March 8, 1981 and September 6, 1981, CBS
broadcast a program segment on its 60 Minutes show
titled ‘Killer Wheels”’.
2.
“Killer Wheels” referred to multi-piece rims and was of
and concerning Redco Corporation.
a
40a
Appendix B—Request for Findings of Fact.
3.
The 60 Minutes show is a news program produced by
CBS news.
4.
At the beginning of the show a human being is shown
walking to a tire and bending over it.
5.
The tire explodes violently, projecting a human like
figure dressed like a man into the air.
6.
The display leads the average viewer to believe this is
what happens in reality.
a
A visual display of a multi-piece rim is followed by a
voice that says ‘These things will kill you”’.
8.
A man then is displayed on the screen who finishes the
preceding sentence by saying ... if you don’t have the
required knowledge to assemble them. (This man is not
identified to the viewer.)
9.
The opening sequence of the show states as a fact that
multi-piece rims “kill”’.
10.
The program suggests that all multi-piece rims kill
people.
4la
Appendix B—Request for Findings of Fact.
11.
The program suggests the killing is caused by a
defective design.
12.
All multi-piece rims are displayed by the program as
being inherently, unpredictably and frequently lethal in
design and use.
13.
The program implies that all single piece rims are safer
than all multi-piece rims.
14.
No Redco rim consisting of its unique reverse 9° rim
and base assembly ever killed anyone and single piece
rims are not safer than multi-piece rims.
15.
The program suggests, as a matter of fact, that the
manufacturers of multi-piece rims, including Redco,
could reduce or eliminate the hazards of multi-piece rims,
but refuse to do so because thev:
(a) fear loss of business;
(b) fear that any concession would open the way for
lawsuits;
(c) do not care about human suffering caused by their
product.
16.
The program suggests that the manufacturers are not
simply mistaken but they knowingly, callously and in
their own self interest misrepresented the facts about
devastating injury.
42a
Appendix B—Request for Findings of Fact.
17.
The program demonstrates the culpability of all
manufacturers in the face of alleged factual lethality of
all multi-piece rims.
18.
The program is developed with an audio visual style
that implies the mobility, knowledge and objectivity of
CBS.
19.
The program ‘Killer Wheels’ does not present multi-
piece rims as matters of debate or opinion, but rather
presents as matters of fact the lethality of multi-piece
rims and the culpability of the manufacturers.
20.
The program “Killer Wheels” is composed of evicit
emotional responses of fear of multi-piece wheels, pity
for victims and anger towara the manufacturers.
21.
The program “Killer Wheels” works as rhetorical proof
that casts the show as a drama involving innocent
victims, friendly witnesses, an indignant but objective
reporting (backed up by the resources of network
information gatherers and a_ heartless industry
representative with something to kill.
22.
The dramatic structure of the show works to make
Bradley an industry spokesman as unsympathetic and
unbelievable.
43a
Appendix B—Request for Findings of Fact.
23.
Cutaways are used in the ‘Killer Wheels’ show to
make Jack Bradley appear as a fool or a liar by implying
that he was answering one question when he in fact was
answering another.
24.
The ‘Killer Wheels’ program by implication,
communicates the following messages:
(a) that all multi-piece rims kill people;
(b) that all multi-piece rims are_ inherently,
unpredictably and frequently lethal in design and use;
(c) that single piece rims are a known safe alternative;
(d) that the manufacturers of rims know this to be the
case;
(e) that the manufacturers could diminish or eliminate
the hazards of multi-piece rims but refuse to do so
because (1) they fear the loss of business, (2) they fear
that any concession (as through hazard warnings) would
open the way for lawsuits against them, (3) they
fundamentally do not care about the human suffering
caused or potentially caused by their product; and
(f) the manufacturers are not simply mistaken, but
that they knowingly, callously and in their own self
interest misrepresented the facts about devastating
injury.
44a
Appendix B—Request for Findings of Fact.
25.
The ‘Killer Wheels”’ program is produced as a drama
involving innocent victims, friendly witnesses, indignant
but objective reporting of a heartless industry with
something to hide. The entire focus has nothing to do
with weighing the merits of multi-piece rims, but rather
is about the culpability of all manufacturers in light of
the lethality of all multi-piece rims.
26.
The program states that the manufacturers of multi-
piece rims, including Redco, know that single piece
wheels are safer than multi-piece wheels.
CONCLUSIONS OF LAW
1.
The program ‘Killer Wheels’ is capable of being
understood by the average viewer as defamatory.
In the Alternative
ae
A jury must decide the question of whether or not the
program ‘Killer Wheels” is a defamatory broadcast.
Respectfully submitted,
LAUCKS & MONROE
By: DONALD L. REIHART
Donald L. Reihart
29 North Duke Street
York, Pennsylvania 17401
Tel: (717) 848-4900
ne ee OE ee ee, ~~ eo
45a
Appendix B—Request for Findings of Fact.
CERTIFICATE OF SERVICE
I, Donald L. Reihart, Esquire, of the law firm of
Laucks & Monroe, do hereby certify that service of the
within document was made upon the following by
depositing a true and correct copy of the same in the
U.S. Mail, postage prepaid, addressed to the following:
Jerome J. Shestack, Esquire
Carl A. Solano, Esquire
Schnader, Harrison, Segal & Lewis
Suite 3600, 1600 Market Street
Philadelphia, Pennsylvania 19103
Attorneys for Defendant, CBS Inc.
G. Thomas Miller, Esquire
McNees, Wallace & Nurick
P.O. Box 1166
Harrisburg, Pennsylvania 17108
Attorney for Defendant, CBS Inc.
James K. Thomas, II, Esquire
212 Locust Street
P.O. Box 999
Harrisburg, Pennsylvania 17108
Attorney for the Defendant, Insurance
Institute for Highway Safety
LAUCKS & MONROE
By DONALD L. REIHART
Donald L. Reihart, Esquire
Dated: April 27, 1984.
46a
APPENDIX C
Affidavit of Dr. Thomas W. Benson
IN THE
UNITED STATES DISTRICT COURT
For the Middle District of Pennsylvania
REDCO CORPORATION,
Plaintiff
Ws
CBS, INC. and THE INSURANCE
INSTITUTE FOR HIGHWAY SAFETY,
Defendants.
Civil Action No. 82-0263.
AFFIDAVIT
Thomas W. Benson, being duly sworn according to
law, deposes and says:
My name is Thomas W. Benson. I have been a
Professor of Speech Communication employed at the
Pennsylvania State University since 1971 and a full
professor since 1975. I have been teaching and writing
about human communications since 1963 specifically in
the analysis of human communication through speech,
film, television and other media.
My area of academic discipline and research concerns
communication studies and includes quantitative and
qualitative analysis of communications. It also included
public opinion analysis and response thereto.
” Se
47e
Appendix C—Affidavit of Dr. Thomas W. Benson.
I am the editor and author of numerous books and
articles about communication. | was awarded the Robert
Kibler Memorial Award of the Speech Communication
Association in 1983 as a pioneer in the rhetoric of film
and television. See attached news release.
I have viewed the Killer Wheels broadcast by CBS,
Inc. on March 8, 1981 and make the following affidavit
concerning the communication portrayed in the program.
The average viewer understood as a person of
reasonable intelligence and good will is induced by the
Killer Wheels show to conclude:
1. That all multi-piece rims kill people;
2. That all multi-piece rims are inherently,
| unpredictably and frequently lethal in design and
| use;
3. That single piece rims are a known safe
alternative;
4. That the manufacturers of rims know this to be
the case;
5. That the manufacturers could diminish or
eliminate the hazards of multi-piece rims but refuse
to do so because (a) they fear the loss of business,
(b) they fear that any concession (as through hazard
warnings would open the way for lawsuits against
them and (c) they fundamentally do not care about
the human suffering caused or potentially caused by
their product; and
6. The manufacturers are not simply mistaken;
but that they knowingly, callously and in their own
self interest misrepresented the facts about
devastating injury.
All of these matters are presented by the show as
matters of fact (although some of them are repeated
within the show as independently supported by
48a
Appendix C—Affidavit of Dr. Thomas W. Benson.
opinions). That is, they are reported as facts and as
supported by facts and in addition, these ‘‘facts’’ are
independently corroborated by opinions. They are not
partly facts and partly opinions and, therefore, really
just opinions. They are presented as facts.
Even the callousness of the industry is presented as a
fact as when Mike Wallace asks at the end of the
segment whether the industry is trading profits for lives.
The respondent answers, ‘‘This is the way life is.’’ The
question and its answer are alleged by the show as a
fact, and as representing a fact. Of course, without
looking at the unedited footage, it is impossible to
determine the accuracy of CBS’ reported fact. . :
Furthermore, it is my opinion that although these
matters are presented as matters of fact partly through
the invocation of CBS and its 60 Minute stars as
reporters of facts and partly through the use of
constructive film editing, camera, and sound techniques,
the medium of television itself is not inherently incapable
of distinguishing between facts and opinions or
arguments. Rather, CBS chose in this instance to present
its Killer Wheels report as a statement of facts and a
reasonable average viewer would, in my judgment,
regard it as such.
THOMAS W. BENSON
THOMAS W. BENSON
Professor of Speech Communication
Sworn and subscribed to before me
this 29th day of February, 1984.
Constance M. Wheeler
Notary Public
University Park, Centre County, Pa.
My Commission Expires July 22, 1985.
Bb 6 ie Ontenid. w
49a
Appendix C—Affidavit of Dr. Thomas W. Benson.
RELEASE
DATE: 30 NOVEMBER 1983
FROM: Dept. of Speech Communication, The
Pennsylvania State Univ., 207 Sparks
Building, University Park, PA 16802 (856-
3461)
TO: All Media
At its annual convention in Washington, D.C., the
Speech Communication Association presented the Robert
Kibler Memorial Award to Thomas W. Benson, Professor
of Speech Communication at the Pennsylvania State
University.
The award cited Professor Benson for ‘dedication to
excellence, commitment to the profession, concern for
others, vision of what could be, acceptance of diversity,
and forthrightness.’’ In a speech of presentation at the
award ceremony, Professor Emeritus Waldo Braden of
Louisiana State University, speaking on behalf of the
Association, said:
“For nearly twenty years, Thomas Benson has pioneered
in the study of the rhetoric of nonverbal communication,
television, and film. As a teacher and scholarly writer, he
has educated students and peers concerning the
rhetorical forces embedded in audio-visual images and in
the fine arts generally. In the spirit of the late Robert J.
Kibler, Benson dares to probe previously uncharted
features of human communication while generously
refining and forwarding the research of fellow scholars as
50a
Appendix C—Affidavit of Dr. Thomas W. Benson.
editor, writer, and film maker. Mysteries are challenges
to his understanding and goads to his research. To the
unraveling of such mysteries he brings a blend of
rhetorical knowledge, artistic principles, familiarity with
history, and originality of thought and expression.”’
Professor Benson came to Penn State University in 1971
after graduating from Hamilton College, earning the
M.A. and Ph.D. from Cornell University, and teaching at
the State University of New York at Buffalo and
University of California, Berkeley. He edited the journal
Communication Quarterly, has served.two terms on the
editorial board of The Quarterly Journal of Speech, and
has written extensively on the rhetoric, art, and politics
of speech, film, television, and nonverbal communication.
5la
APPENDIX D
Affidavit of Dr. Thomas Benson
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA al
COUNTY OF CENTRE
Before me, the undersigned officer, personally
appeared THOMAS BENSON, who, being duly sworn
according to law, deposes and says according to his
personal knowledge that the following facts and opinions
are true and correct to the best of his knowledge and
belief:
I graduated from Hamilton College in 1958 and earned
a BA Degree. In 1961 I graduated from Cornell
University with an MA Degree and was awarded a PhD
in speech and drama in 1966. I have taught at the State
University of New York at Buffalo; at the University of
California at Berkeley and am presently a professor of
Speech Communication at the Pennsylvania State
University at State College, Pennsylvania.
I have edited the journal ‘‘Communication Quarterly”
and served two times on the editorial board of the
Quarterly Journal of Speech. I have written extensively
on the rhetoric, art and politics of speech, film, television
and non-verbal communication. I have studied and
taught the rhetoric of non-verbal communication,
television and film communication for over twenty years.
In addition, I have conducted research in the field of
communication with a view of obtaining an
understanding of communication by non-verbal, verbal,
visual and auditory means.
52a
Appendix D— Affidavit of Dr. Thomas Benson.
In November of 1983 I was awarded the Robert Kibler
Memorial Award by the Speech Communication
Association for the research and efforts that I have made
in these fields.
My research, experience and understanding include
seeking out and explaining the way in which
communication occurs and how ideas are transmitted
through various means of communication, including
television and film.
I have published detailed analysis on the way
television and film messages are constructed and
communicated.
I have seen and reviewed the program “Killer Wheels”
broadcast on March 8, 1981 by CBS, Inc. The following
report supplements my Affidavit of February 29, 1984
that is incorporated by reference herein.
In coming to an understanding of the meaning of a
television broadcast, the viewer relies upon the
information presented and its context. In the case of
“Killer Wheels’, the context and the information are
constructed by CBS to constitute a message
communicating:
1. that all multi-piece rims kill people;
2. that all multi-piece rims are _ inherently,
unpredictably, and frequently lethal in design and use;
3. that single piece rims are a known safe alternative;
4. that the manufacturers of rims know this to be the
case;
53a
Appendix D— Affidavit of Dr. Thomas Benson.
5. that the manufacturers could diminish or eliminate
the hazards of multi-piece rims but refuse to do so
because (a) they fear the loss of business, (b) they fear
that any concession (as through hazard warnings) would
open the way for lawsuits against them and (c) they
fundamentally do not care about the human suffering
caused or potentially caused by their product: and
6. the manufacturers are not simply mistaken, but
that they knowingly, callously, and in their own self
interest misrepresented the facts about devastating
injury.
Crucial to an understanding of how audiences respond
to communication is the concept that interpretation is
contextual rather than atomistic. This is not to say that
audience interpretation is simply a matter of personal
idiosyncracy or general impression, but that any element
in a communication takes its meaning from the context
in which it appears. In what follows, I will present as
directly as possible the reasons for my judgments about
the message of ‘‘Killer Wheels,’ and I will cite specific
elements of the show that communicate the message, but
I shall be doing so in an attempt to show how each
element communicates in the context.
That all multi-piece rims kill people. This allegation of
fact is presented in a number of ways, verbally and
visually. The title of the segment, “Killer Wheels,’ not
only makes the allegation but assumes it as a fact: 60
Minutes is produced by CBS news, and advertised as
such in the show and elsewhere. This carried the
implication that the segment would not be titled as it is
if it were not being reported, named, as a fact. Viewers
are clearly invited to interpret the title of the segment in
this way.
54a
Appendix D— Affidavit of Dr. Thomas Benson.
In the brief introductory sequence, the visual
presentation begins before Mike Wallace’s words. We see
a human figure bending over a tire, which explodes. Only
after we have been invited to think that we have seen a
human being killed, the emotional effect of which is
sustained throughout the rest of the segment, does Mike
Wallace inform us that we have seen a dummy—and he
then alleges that the sequence can be taken as a factual
representation of what happens in reality:
This test film by the Insurance Institute for
Highway Safety was made with a 250-pound
dummy, but it shows graphically what can happen
when a wheel rim explodes. (We then see an
explosion from another angle). ... ‘Unlike the tire
on your automobile, which rests on a single piece
rim like this one, the tires on most of the trucks and
buses on the road rest on a rim made of two or three
pieces, like this one.”
As Wallace finishes his second sentence, we see images
of wheels and rims; while we are looking at a shot of a
multi-piece rim, a voice says, “These things will kill
you’’—and only then does the visual image change to
reveal a man in a blue suit, who finishes the sentence,
with the words, “If you don’t have the required
knowledge to assemble them.”
The effect of the sound-image editing here (in which
the man who is identified here in the transcript, but only
later in the broadcast accessible to the viewer, as Gary
Gardner, a lawyer), is that Gardner’s voice is placed in
the same commentative role as Wallace’s, and is let
stand, not only by the omission of refutation, but by its
editorial placemert, as CBS’s presentation of the
facts—these things will kill you.
55a
Appendix D— Affidavit of Dr. Thomas Benson.
The opening impression that a statement of fact has
been made alleging that multi-piece rims kill is reinforced
in a variety of ways throughout the show:
(1} Wallace says: ‘Killer Wheels—that’s what many
truck drivers and tire mechanics are calling some weel
rims now riding on our highways.”
(2) Wallace says: ‘““They are called multi-piece wheel
rims, and accidents involving them, according to U.S.
Government statistics, have killed more people than have
died in accidents involving the Ford Pinto or the
Firestone 500 Tire.’ (The allegation about U-/S.
Government statistics is clearly meant to establish that
the wheel rims kill as a matter of fact. The fact of the
number of deaths is not mentioned, but is used to create
an impression of deadliness by a comparison whose ocher
meanings I shall return to later.)
(3) Wallace says: ‘So it is no surprise that there has
been a call to ban these wheel rimms from the highways.”’
The phrase ‘So it is no surprise” inserts an editorial
opinion in the guise of a fact, linking the alleged ‘‘fact”’
that the rims are killers to the alleged ‘‘fact’’ that there
is a-call to ban the rims with CBS’s implied approval of
that connection.
(4) Mary Ehmann’s son, Eric, was killed by the
explosion of a multi-piece rim. And in an interview she
reports hearing about other cases.
(5) In his concluding comment, Wallace reports eight
(8) more deaths since his first report.
This review cites only those places in the program
where multi-piece rims are alleged, as a matter of fact, to
have killed (and the word ‘‘kill” is used at other points in
56a
Appendix D— Affidavit of Dr. Thomas Benson.
the breadcast, to bolster the impression). In addition, of
course, the broadcast provides considerable detail on
serious accidents and shows films in which dummies are
destroyed by explosions. That multi-piece rims kill
people is clearly meant to be reported as a matter of fact
by “Killer Wheels.”
Does ‘Killer Wheels” allege as a matter of fact that a//
multi-piece rims kill people? In my judgment, yes. At
several points, the report groups together (1) all multi-
piece rims, or (2) all manufacturers of multi-piece rims.
CBS clearly does not claim that each and every multi-
piece rim has killed or will kill, but its mode of
representation appears to communicate that all multi-
piece rims have the same safety defects, so that a death
caused by one represents a death that could have been
caused by any, and that all manufacturers therefore
fabricate ‘Killer Wheels.’ It appears to be like the case
of three armed robbers in a bank, one of whom shoots
the guard, but all of whom are guilty. The association of
one multi-piece rim with all multi-piece rims, and of one
manufacturer with all manufacturers, is made explicitly
and implicitly in a number of places in the broadcast:
‘“... The tires on most of the trucks and buses on
the road rest on a rim made of two or three pieces,
like this one. . .
These things will kill you.
... We're dealing with only the wheel rims on trucks
and buses and some campers. They are called multi-
piece wheel rims. . .
... These wheel rims
... The companies that make these wheels. . .
57a
Appendix D-- Affidavit of Dr. Thomas Benson.
... And in case you’re wondering that an accident
involving a truck rim is like. . .
... Its design. ..
... Unlike the tire on your automobile, which rests
on a single piece rim like this one, the tires on most
of the trucks and buses on the road rest on a rim
made of two or three pieces, like this one. . .
... Goodyear, one of the manufacturers of multi-
piece rims. . .
Goodyear and the other manufacturers recognize the
hazards connected with multi-piece rims during
_Z deflation or inflation of the tire. . .
... It is for this reason, say the tires makers. . .
The tire makers insist. . .
There are four major manufacturers of multi-piece
rims: Firestone, Goodyear, the Budd Company, and
the Kelsey-Hayes Corporation (this implies that
although there are four major manufacturers, there
are other, “minor” manufacturers whose product
does not materially differ).
... The manufacturers insist. . .
... It turns out that these were not the only doubts
the industry was having about multi-piece rims.
Since we first broadcast this report last March,
...28 additional accidents, including eight (8)
deaths, due to multi-piece rim explosions. Still, the
Reagan administration has announced plans to drop
a proposed rule that would ban all future production
of multi-piece — -el rims. The reason? A conversion
from multi-piec: wheels rims to single piece would
cost the industry upwards of $3,000,000.00 a year.”
*
ro
58a
Appendix D— Affidavit of Dr. Thomas Benson.
From first to last, the CBS story treats the
manufacturers as one industry and the multi-piece rim as
one product— Whenever there are specific examples, they
clearly are meant to represent the whole.
All multi-piece rims are inherently, unpredictably, and
frequently lethal in design and use.
Frequency: This is measured impressionistically but
with a tone of reportorial objectivity, in passages that
compare the multi-piece rim with the Ford Pinto and
Firestone 500; in reference to Ben Kelley’s reperted ‘‘tip
of the iceberg’’ 100 deaths and ‘‘at least 400 injuries’;
references to frequent injuries to innocent by-standers:
and in the final reference to eight (8) deaths and twenty-
eight (28) injuries since the first broadcast.
Inherency: Evidence is cited, and unsupported
assertions are made, regarding the allegedly inherent
danger of multi-piece rims. Because they are made of
more than one piece, we are told repeatedly, multi-piece
rims have an inherent tendency to explode.
Unpredictability: The unpredictable explosiveness of
multi-piece rims is esserted visually in the several
examples of explosions involving dummies, standing in
for people who were or might be surprised by such
accidents. The narratives of the reported accidents are
handled in such a way, in terms of story-telling
techniques, as to stress the surprise and unpredictability
of the accidents. Lloyd James, Sr., is quoted saying,
“The next thing I knew...’’ Mary Ehmann is quoted
saying, ‘‘And when he laid it down, the impact (slaps
hand) of hitting the floor—apparently something wasn’t
quite right, or maybe there was a piece of rust or
something there—”’.
That single piece rims are a known safe alternative.
59a
Appendix D— Affidavit of Dr. Thomas Benson.
At several places in the broadcast, (ail) single rim
wheels are alleged to be safer than (all) multi-piece rims.
CBS quotes Ben Kelley at one point. Kelley says, ‘‘Now
the—the irony is that there is a—an identical design in
which all of the metal is combined—the single piece
wheel, in which it’s all in one piece. There’s nothing
separate from the wheel.’ Wallace confirms Kelley's
remark as a CBS-certified fact by replying, ‘‘Right.”’
Later, Wallace alleges that the only reason for not
switching from multi-piece rims to single piece rims is
the cost of a conversion—an allegation as to the fact of
the safety and the fact of the manufacturers’ motives.
That the manufacturers know this to be the case.
The industry is made to impeach itself in the excerpt
from the Goodyear safety film (an apparent case of a
reluctant witness, as CBS frames it). And in the
interview with Jack Bradley, Wallace works to impeach
Bradley and, despite Bradley’s denials, remarks, as an
apparent statement of fact, at the conclusion of part of
the interview, “It turns out that these were not the only
doubts the industry was having about multi-piece rims.”
That the manufacturers could diminish or eliminate the
hazards of multi-piece rims but refuse to do so because
(a) they fear the loss of business, (b) they fear that any
concession (as through hazard warnings) would open the
way for lawsuits against them, and (c) they
fundamentally do not care about the human suffering
caused or potentially caused by their product.
Wallace alleges early in the segment that the story is
about not simply the multi-piece wheel rim, but about
corporate decisions and their motivations. At several
places, CBS and the friendly witnesses whose remarks
60a
Appendix D— Affidavit of Dr. Thomas Benson.
are accepted as facts, repeat that the companies are
motivated by profit, that they fear lawsuits, and that
they are afraid to concede the facts for fear they would
lose money. All of these allegations tend to establish the
heartlessness of the corporations, a topic which is capped
by the editing of the end of the Bradley interview, in
which Bradley is made to smilingly accept the tradeoff of
lives for money as “the way life is.”’
That the manufacturers are not simply mistaken, but
that they knowingly, callously, and in their own self
interest misrepresented the facts about devastating
injury.
It appears to be important to the meaning of the show
that it is not regarded as a debate about the merits of
the multi-piece rim, but the factual report of a
scandalous and knowing disregard of the public safety.
This conclusion is implied to be a matter of fact growing
out of the alleged facts that the manufacturers of multi-
piece rims continued to manufacture them even though
they knew them to be lethal and knew that there was a
safe alternative. The entire focus of the show has to do,
not with weighing the merits of the multi-piece rim, but
about demonstrating the capability of (all) the
manufacturers in the face of the allegedly factual
lethality of (all) multi-piece rims.
So far, I have relied primarily upon the verbal porticn
of the broadcast to establish its probable meanings for
an audience. I have tried to show how a series of
statements, taken together, create a predictable message
as fact. Assuming the widely advertised competence of
CBS news, it is hard to see how a different reading could
be expected or intended.
6la
Appendix D— Affidavit of Dr. Thomas Benson.
There is more to the context, of course, than the words
spoken. The visual treatment of the material is designed
to reinforce the impression that I have reported.
‘Killer Wheels’ is developed with an audio-visual style
that strongly implies the mobility, knowledge, and
objectivity of CBS. Interviews are cut in such a way, for
example, that a single camera appears to be able to move
instantaneously through time and space as it does in a
fiction film. Documents are inserted in the midst of an
interview. When Lloyd James's accident is reported,
CBS goes to Clayton, Georgia to film the service
station—creating an air of immediacy and implying a
willingness to go to any lengths to report the actual
facts. In the staging of the first explosion, the film
(staged, we are told after it has begun, by the Insurance
Institute for Highway Safety, and using a dummy)
appears at first to show a man being blown apart: This
is accomplished by a series of three shots:
{1) a man is shown bending over a wheel on the side
of the highway;
(2) a truck passes down the highway, obscuring the
screen;
(3) in what appears to be a continuation of shot 41,
the tire explodes, hurling a figure into the air—then we
are told that it is a dummy. Shot #2 is used to mask a
cut to the new shot.
The use of a second shot to interrupt an ongoing shot
is used in interview sequences, in what is called a
cutaway, to cover the omission of part of the interview.
From the point of view of my own analysis of the visual
technique of ‘‘Killer Wheels,’’ it is possible to describe
the technique and its probable meanings to viewers. But
62a
Appendix D— Affidavit of Dr. Thomas Benson.
without looking at the outtakes, it is impossible to report
with precision on whether CBS drastically
misrepresented the sequence of events in interviews.
The matter of cutaways and the audio-visual style of
television reporting perhaps needs some _ further
elaboration. I understand that my analysis will have
bearing on the question of libel, but I am writing from
the point of view of an expert on communication and not
on the law of libel.
The matter of the cutaway shot and its implications is
a potentially complicated one. In news and documentary
reporting, most scenes are filmed with one camera. That
camera is focused during the major portion of the
interview on the person being interviewed, and the
continuous footage that results is called the master shot.
At the editing state, the master shot will be shortened,
primarily for considerations of time, but also to retain
only the portions of the interview that contribute to the
story the reporter wishes to tell.
If the interview footage consists only of the master
shot itself, its cutting would result in a “‘jump cut’’ each
time a portion of the shot was discarded. A jump cut is
created when a portion of the shot was removed, and the
resulting edited cut reveals an obvious, even if minor,
‘‘jump” of the subject matter in the frame, resulting in an
obvious and distracting discontinuity. To bridge such
unconventional discontinuities, it is common practice to
film “‘cutaway”’ shots that can be inserted into the gap in
the master shot, hiding the discontinuity and acting as a
bridge that preserves the illusion of continuous time in
the interview.
63a
Appendix D— Affidavit of Dr. Thomas Benson.
The most common cutaway shot in an interview is the
“reverse” shot of the interviewer. Other cutaway shots
might include a close-up of the interviewee’s hands, or a
long-shot of the room in which the interviewee and
reporter are talking. Most interviews coiducted outside
the studio employ only one camera. Hence, any cutaway
shots are usually filmed before or after the interview
itself, and are not part of the moment in time that they
are made to appear to be. And, of course, once the
cutaway is accepted as a convention, it obscures the gap
in the master shot, rather than revealing it.
It would perhaps be excessive to object to cutaways in
news reporting generally. They are conventional, and they
do contribute to the creation of an impression of reality.
The cutaway can actually enhance communication by
making an interview more interesting (by providing some
visual relief); by avoiding the distracting discontinuities
of a jump cut (thus enabling the viewer to pay closing
attention to the edited content); by reminding the viewer
of the presence of the interviewer who is revealed in the
reverse-angle cutaway; by re-establishing the credibility
and star-value of the reporter by cutting to him for a
reverse angle in which he asks a question or guides our
interpretation by the expression with which he listens to
an answer. But the cutaway is also subject to abuse. All
of the features that allow the cutaway shot to enhance
the impression of reality (by re-constructing reality) can
be used in such a way as to be unfair or, worse, to
literally misrepresent the truth.
The cutaway shot is one clue as to the differential
treatment accorded to people interviewed for “Killer
Wheels.”’ It is clear from the broadcast that Jack
Bradley’s interview is interrupted more frequently, and
64a
Appendix D— Affidavit of Dr. Thomas Benson.
with different materials, than the others. The effect is
not only to undermine Bradley’s credibility, but to alter
the tenor of his answers and, quite possibly, to
misrepresent the continuity of the logic of question and
answer.
It is at this point that one must pause and comment
on the use of the cutaway (and film technique in general)
as a device for interpretetion. As a matter of
communication theory, and invoking a comparison
between film and language, it would seem that if
television and film can invoke the protection of the First
Amendment, then they must also accept its
responsibilities. That is, any medium of communication
capable of invoking the protection of the First
Amendment is claiming a certain status as
communication, rather than simply claiming that it is
totally irrelevant both to libel and the First Amendment.
This follows from principles well established as matters
of communication theory.
From the point of view of communication theory, it
would be inaccurate to claim that television was, by its
nature, either (1) purely factual and objective, or (2)
merely a matter of opinion and interpretation, with no
claim to make statements that are either accurate or
inaccurate. Film (and television), like spoken and written
language, is always interpretive, and therefore not
perfectly objective.
But film and television, like language, are also capable,
particularly when using language as one of their
elements, of telling the truth and lying, of defending or
defaming. One need not claim, that is, that all language
is or ought to be “objective” to claim that language is
65a
Appendix D— Affidavit of Dr. Thomas Benson.
capable of telling the truth, or lying. The same holds for
television, though there are important differences
between spoken and written language and _ the
“language” of television.
The techniques of television documentary and news
narration are interpretive, but this does not vitiate their
claims or their effect as broadcast news reporting. Part
of the explicit and implicit message of 60 Minutes is that
it is taking enormous care to be accurate about the facts,
that it is competent to identify and communicate the
facts, and, in the case of ‘Killer Wheels,”’ that the facts
are essentially as set forth herein.
The issue of factuality needs to be addressed from
another angle. From the point of view of communication
theory and its relation both to decision-making and
opinion-formation, the issues addressed by ‘Killer
Wheels” would appear to be debatable. That is, by their
nature, the questions of whether multi-piece rims are
lethal, and whether the industry knowingly manufactures
a lethal product, are capable of being addressed as
matters of opinion and as debatable. And there is
nothing about television, either as a medium or as a
pattern of communicative practices, that prevents it
from presenting these matters as debatable. But ‘‘Killer
Wheels’’ does not present them as debatable or as
opinion. Rather, “Killer Wheels’ presents, as matters of
fact, the lethality of multi-piece rims and the culpability
of the manufacturers.
The issue of factuality versus opinion would seem to
place the manufacturers in a particularly difficult
position in trying to defend themselves, either in public
or in court. Should it be understood that if a multi-piece
66a
Appendix D— Affidavit of Dr. Thomas Benson.
rim manufacturer provides evidence to indicate the
safety of his product, he is implicitly conceding that the
safety issue is simply a matter of debate (or of opinion)
and that he therefore has conceded CBS's claim to be
simply setting forth an opinion? From the point of view
of communication theory, such a claim would seem to
make any libel impossible to prosecute, since the
Defendant would simply have to draw the Plaintiff into a
debate about the merits of the original issue and then
point out that the communication complained of is
thereby conceded to be a matter of opinion. In my view,
CBS clearly, and unnecessarily, claimed that it was
presenting the facts.
I think it is also clear that in addition to is aura of
factuality, CBS usd the elements of television
communication to encourage emotional responses to the
material. For example, it appears to me that an average
viewer is induced to experience fear, pity, and anger in
quite predictable ways. Fear: The shots of the
explosions, the shots of (potentially explosive) trucks
travelling the highways, and others. Pity: The shots of
accident victims and their relatives. Anger: The smiles of
Jack Bradley—not only in the context of Mike Wallace's
questions, but in the context of the shots which have
aroused our fear and pity, and which are a part of our
context, but were not a part of Bradley's context.
The emotional responses encouraged by the CBS style
in this case are not merely results of the factual case
made out against multi-piece rim manufacturers, but
work to reinforce it. The emotional structure of the show
works as a form of rhetorical proof that casts the show
as a drama involving innocent victims, friendly
witnesses, an indignant but objective reporter (backed up
67a
Appendix D— Affidavit of Dr. Thomas Benson.
by the resources of a network of information gatherers),
and a heartless industry representative with something
to hide.
The dramatic structure of the show works to make
Bradley seem not just unsympathetic, but unbelievable.
Bradley’s honesty is impugned with cutaways to
documents that go by too fast for us to fully
comprehend, and with other cutaways that may bridge
distorting gaps in the continuity of the question-and-
answer sequence. But in addition to these means of
undermining Bradley’s testimony, other suggestions are
made structurally. If Bradley is unsympathetic to the
victims of multi-piece rim accidents, that would appear
to testify to the industry’s callous disregard of the public
safety. And when Bradley makes an engineer’s answer to
the question of whether multi-piece rims are dangerous
(he says, “They are not dangerous’’), any audience
member who has seen the demonstration films and the
mutilated victims and the grieving parents must take
Bradley for a fool or a liar.
Every reasonable viewer must believe by this point in
the broadcast that multi-piece rims are dangerous, and
Bradley’s answer (which is presumably addressed to the
statistical and engineering aspect of the question) is
edited into the show so as to seem a denial of the human
suffering that has been vividly and _ undeniably
portrayed.
In my view, responsible news journalism would not
thus structure a show to imply to an audience that a
person was answering one question when he was in fact
answering another. The techniques of interviewing and
television narrative are employed in “Killer Wheels’”’ in
68a
Appendix D— Affidavit ef Dr. Thomas Benson.
such a way as to make Jack Bradley represent the
industry, and to make him appear not only heartless but
dishonest. He is the only witness whose story is cross-
examined, his answers are clearly distorted in meaning
by their placement in context, and it may be that editing
has been used to put some of his answers directly out of
context—a fact which cannot be verified without
inspection of the pre-edited interview materials.
I am a communication scholar, not an engineer or
lawyer. I do not know whether “Killer Wheels’ is
libelous, and I do not know whether multi-piece rims are
safe. It is clear to me that CBS made out what it
presents as a factual account of ‘‘killer wheels”.
THOMAS W. BENSON
Thomas Benson
Sworn and subscribed to before me
this 25th day of (Illegible), 1984.
CONSTANCE M. WHEELER
Notary Public
University Park, Centre County, Pa.
My Commission Expires July 22, 1985
ee er
69a
APPENDIX E
Affidavit of J. B. Sechrist
IN THE UNITED STATES DISTRICT COURT
for the Middle District of Pennsylvania
Civil Action No. 82-0263
REDCO CORPORATION,
Plaintiff,
"ws
CBS, INC. and THE INSURANCE INSTITUTE
FOR HIGHWAY SAFETY,
Defendants.
AFFIDAVIT
My name is J. B. Sechrist. I am familiar with the
information hereinafter referred to as emanating from
files of The Insurance Institute of Highway Safety. I am
familiar with the effect of the insurance institute's
efforts to ban multi-piece wheels including the effect of
the CBS show ‘Killer Wheels”’.
1.
On June 29, 1977, Lynn Smith of IIHS received
information from the Bureau of Motor Carrier Safety
suggesting that ... “‘very few accidents today are
related to wheel failures’’. See Exhibit A.
70a
Appendix E—Affidavit of J. B. Sechrist.
2.
The Insurance Institute for Highway Safety used a
“clipping service’ to obtain information about multi-
piece rims and made no effort to collect information
about single piece rims. See Exhibit B.
3.
By letter of November 24, 1977, the IIHS knew that
drop-center type wheels (single piece) exploded through
tire bead failure. See Exhibit C.
4.
By letter of Sept. 25, 1978, IIHS is shown to have
knowledge that the North Dakota Workman's
Compensation Research revealed forty single piece rim
accidents. This information was ignored and suppressed
by ITHS. See Exhibit D.
5.
By memo of June 30, 1978, IIHS had additional
information suggesting that single piece wheels fail. See
Exhibit E.
6.
By memo of July 17, 1978, IIHS had information
suggesting that single piece and multi-piece wheels
resulted in loss of control if a front tire went flat. See
Exhibit F.
71la
Appendix E—Affidavit of J. B. Sechrist.
7.
By letter of September 12, 1978, the state of Texas
reported there was no problem in two years with rim
separation. See Exhibit G.
8.
The ‘“‘test’’ film prepared by IIHS and broadcast on
CBS program “Killer Wheels’ violated OSHA standards
passed on January 29, 1980. See Exhibit H.
9.
On January 29, 1980, OSHA also dispensed with
requirement of warning labels on multi-piece rims. This
information was known or should have been known by
IIHS. See Exhibit I.
10.
On and before March 8, 1981, the IIHS knew or should
have known of the South Coast Technology report. (See
Exhibit C in Plaintiff’s Appendix to Brief in Opposition
to Motion for Summary Judgment), and the Phase III
report of Failure Analysis Associates (See Exhibit B in
Plaintiff's Appendix to Brief in Opposition to Motion for
Summary Judgment), that set fort an authoritative study
of multi-piece rim failures and acknowledged that single
piece rims proportionally cause as many or more injuries
and deaths as multi-piece rims.
72a
Appendix E—Affidavit of J. B. Sechrist.
11.
The efforts of IIHS and the CBS “Killer Wheels’
program promoted the promulgation within the State
Board of Education in Maryland of Cornor 13.A.06.07
that would eliminate the use of multi-piece rims on
school buses and force the use of single piece rims with
tube type tires. This rule was not adopted when all the
safety evidence was presented. However, if it had been
adopted. ... The school children of Maryland would have
been exposed to accident frequency twenty-five times
higher than children in buses using multi-piece wheels.
12.
_. The Redco multi-piece rim is designed with a reverse
nine (9°) degree locking ring and base assembly. This
product has not killed any servicemen, innocent
bystanders, truck drivers or other users.
13.
A summary attached hereto reflects accurately the
information available to IIHS and their conduct in
attempting to ban multi-picce rims. The exhibits, if not
already in the record, are readily available to
substantiate the summary. See Exhibit J.
J. B. SECHRIST
J. B. Sechrist II, Vice President
Redco Corporation
Sworn and subscribed to before me
this 26th day of April, 1984.
(Illegible)
Notary Public
(Illegible)
73a
Appendix E—Affidavit of J. B. Sechrist.
EXHIBIT J
SUMMARY AND COMPILATION OF DOCUMENTS
EVIDENCING THE UNTRUSTWORTHINESS
AND INACCURACY OF
INSURANCE INSTITUTE FOR HIGHWAY SAFETY
STATEMENTS ON MULTI-PIECE RIMS
The Insurance Institute for Highway Safety, working
in concert with plaintiffs’ attorneys, has been the
principal source of public statements attacking the
safety of multi-piece rims. It has been by far and away
the leading overt instigator of government action against
multi-piece rims. Unfortunately, the Insurance Institute
has misled and actively deceived the National Highway
Traffic Safety Administration (NHTSA) about multi-
piece rim safety, making public statements to the
NHTSA about mu‘‘i-piece rim hazards which were
contradicted by its own non-public records and the
expressed views of its own technical staff. What is more,
the data which the Institute supplied to the NHTSA was
full of errors and wholly unreliable. The Insurance
Institute now has filed the same false and misleading
information with the Maryland Board of Education.
Thus, it has provided the Board of Education staff the
same petitions to ban and recall multi-piece rims which it
filed with the NHTSA in 1978 and the numerous follow-
on filings it made with that Agency.
Fortunately, the NHTSA was able to pierce the
Insurance Institute misrepresentations and inaccuracies.
It has rejected the Insurance Institute petition for a rule
banning multi-piece rims (47 Fed. Reg. 8232, February
25, 1982), and it regarded the companion petition for a
defect investigation to recall multi-piece rims as so
poorly based that it declined to open a formal
investigation.
74a
Appendix E—Affidavit of J. B. Sechrist.
It is essential that the Maryland Board of Education
also not be misled and that it, too, see the active
misrepresentation engaged in by the Insurance Institute.
1. Misrepresentations by the Insurance Institute: The
Insurance Institute misled the NHTSA both by active
misrepresentations and by materially misleading
omissions in the information it filed with the NHTSA.
For example, seven months before the Institute's first
Petition to the NHTSA on June 14, 1978, it
corresponded with Dr. Alan Milner, a metallurgist who
owned a service garage and held himself out as an expert
in tire mounting accidents, to secure consulting services
on rim disengagements. Dr. Milner wrote back on
November 24, 1977, stating:
Thank you for your letter of November 8, 1977
inquiring about my background in multi-component
truck wheel explosions.
I do have some experience with multi-component
rim separation explosions, although most of my
experience concerns tire bead failure related
explosions in drop center [single piece] type wheels.
I have investigated accidents involving post
mounting separations on continuous base,
continuous side ring type wheels [multi-piece] of the
Firestone type. These have been plaintiffs’ cases
which have involved fairly gross malpractice on
behalf of the tire mounting operator in terms of
failure to properly inspect and clean the rim
components which were heavily rusted. See Exhibit
A.
75a
Appendix E—Affidavit of J. B. Sechrist.
Dr. Milner thus told the Insurance Institute two things:
(1) in his experience multi-piece rim disengagements
resulted from ‘fairly gross malpractice’’ by tire
mounting operators; and (2) in his experience the use of
drop center type wheels such as the Insurance Institute
and the Maryland Board of Education are advocating
can result in explosive tire bead failures. The Insurance
Institute’s files do not reflect further correspondence
with Dr. Milner. Importantly, the Insurance Institute
materially misled the NHTSA, and now the State of
Maryland as well, in the information it filed with the
NHTSA by omitting any reference to or reflection of the
information Dr. Milner furnished.
More significant is the fact that two weeks before the
filing of the Institute’s petition for a defect
investigation, its own technical staff indicated in writing
to the Institute’s president that a recall of multi-piece
rims was not warranted:
I have reviewed three main sources of information
for their technical content on multi-piece wheels: the
Risjord files [a plaintiff's attorney], major wheel
manufacturers’ catalogues, and the Value
Engineering Lab rim tests. These sources, either
separately or collectively, do not provide a sound
technical basis for recalling any or all multi-piece rim
designs from service. (The emphasis, which appears
in the copy of the document provided under
subpoena, was added by hand at the Insurance
Institute.) See Exhibit B.
76a
Appendix E—Affidavit of J. B. Sechrist.
This advice also was not mentioned in the Insurance
Institute Petition to the NHTSA nor to the Maryland
Board of Education staff.! This is noteworthy because it
addresses and finds lacking as a basis for recall: (1) the
only new data presented to NHTSA by the Insurance
Institute (the accident records in the Risjord files); and
(2) the oniy NHTSA consultant study dealing with the
safety of multi-piece rims and relied upon by the
Insurance Institute in its June 14, 1978 Petition (at page
4).
The Insurance Institute’s public position that the
educational and other shop requirements of the then
pending and now effective OSHA standard for servicing
multi-piece rims would not be effective in reducing
accidents was also inconsistent with information in its
internal files. The Insurance Institute knew, or had reason
to know, from a document in its files that adoption of an
appropriate OSHA standard would eliminate any hazards
associated with multi-piece rims. That document is an
Interoffice Memorandum of the Ford Motor Company
dated December 12, 1974, obviously written without
external motivation. The document states that:
Fifteen incidents of wheel and side ring separation
[Budd Duo Rims] of F250 and F350 vehicles were
reported between February 18 and July 2, 1974.
'On deposition in a subsequent court proceeding, the Institute's
President, Dr. William Haddon, disingenuously sought to minimize
the significance of this staff conclusion. Dr. Haddon attempted to
dismiss it as based on a staff misunderstanding that the concept of
defect did not include design defects. Haddon Deposition, In
Re: Multi-Piece Rim Products Liability Litigation, M.D.L. Docket
No. 362 (W.D. Mo. Nov. 20, 1981). The transparency of his efforts is
clear from even a cursory review of the staff memorandum, which
dealt expressly with whether there was a design defect in the rims.
Notwithstanding Dr. Haddon’s dissembling, the staff member knew
that the issue was whether there was a design defect in the rims and
concluded that the Insurance Institute's data did not support the
conclusion that there was. See Exhibit B.
CS __i
77a
Appendix E—Affidavit of J. B. Sechrist.
Inspection of returned parts, twelve side rings and
thirteen wheels, disclosed only a minor dimensional
discrepancy on the wheels. Laboratory and vehicle
tests conducted with wheels exhibiting this
discrepancy proved retention to be satisfactory;
separation could only be duplicated by deliberate
misassembly of the side ring to the wheel.
To preclude any occurrence of misassembly at first
delivery, a process note was added to verify full side-
ring to wheel gutter engagement; all assembly plants
reported 100% compliance on 7-5-74. No further
reports of this discrepancy have been received since
7-2-74.
Since it has been demonstrated that wheel side ring
separation occurs as a result of misassembly and the
necessary precautions have been taken to assure
proper assembly, the file is being closed and your
concurrence is recommended. (Emphasis appears on
the copy of the document provided by the Insurance
Institute pursuant to a subpoena, indicating that its
attention was clearly focused on this information.)
See Exhibit C.
The Insurance Institute has engaged in numerous
other misrepresentations and mischaracterizations in its
petitions to the NHTSA. Thus, in its petitions to the
NHTSA characterizing the ‘“‘extent of the problem,”’ the
Insurance Institute refers to a Bureau of Motor Carrier
Safety (BMCS) Report supposedly determining ‘‘that tire
and wheel failures constitute the second largest cause of
truck crashes.’’ Petition, June 14, 1978, at 8; Petition,
October 2, 1978, at 1. That is an obvious misstatement.
The referenced BMCS Report does not even purport to
78a
Appendix E—Affidavit of J. B. Sechrist.
identify or compile statistics on rim _ separations.’
Moreover, internal Insurance Institute documents show
that in 1977 Bureau of Motor Carrier Safety personnel
expressly advised the Institute's staff that ‘‘... very few
accidents today are related to wheel failures.’’ Insurance
Institute Memorandum to File, dated June 29, 1977
(Exhibit D).
On at least two occasions, the Institute has
misrepresented the problem of rim disengagement by
including in its public allegations the discussion of a
NHTSA _ multi-piece rim investigation which it
characterized as being of ‘‘major concern.”’ The
investigation referred to did not have anything to do
with multi-piece rim disengagement. The investigation
related solely to wheels which suffered impact fractures
due to overloading. See Insurance Institute Petition,
June 14, 1978, at 2-3; and Insurance Institute Letter to
the NHTSA, August 28, 1979.
The Insurance Institute submitted with its October 2,
1978 Petition a film showing an explosive disengagement
of a multi-piece rim. The Institute said of its
demonstration: ‘“‘We deliberately modified the wheels to
assure an explosion under pressure of tire inflation.’’ The
Institute failed to disclose to the NHTSA or the press
what the words ‘‘deliberately modified’’ actually meant.
In order to explode the filmed rim assembly, the
Institute was compelled to machine away the rim’s
retaining hook which makes the particular multi-piece
rim lock. If the Insurance Institute had disclosed that
fact, it doubtless would have to disclose that when a
>This same falsehood was reiterated by Ben Kelly, an Insurance
Institute Senior Vice President, in a December 1980 speech at Johns
Hopkins University.
79a
Appendix E—Affidavit of J. B. Sechrist.
multi-piece rim is properly assembled, it cannot be made
to fail except by conduct so unreasonable as _ to
constitute gross negligence. Whatever publicity value
this film may have, it has nothing to do with the safety
of a properly assembled multi-piece rim.
The Insurance Institute also misled the Agency in
another way. It cloaked itself in purported expertise,
invoking the results of its ‘“research’’ and ‘“‘testing’’ to
make seemingly authoritative statements about the
design of multi-piece truck rims and the comparative
design and performance superiority of single piece rims.
Yet, in truth, the Insurance Institute had no real
expertise in the field, did no independent research, did no
testing, and did no study of single piece rim technology
or accident data. Its conclusions lacked any legitimate
basis for belief, much less authoritative status.
The head of the Insurance Institute’s multi-piece rim
“‘investigation’’ was John Arminio. In sworn deposition
in Fiscus v. Gay Johnson, Inc., C.A. No. C-82810
(Denver Dist. Ct., Colo. Sept. 4, 1980), Mr. Arminio
revealed the total lack of expertise which the Insurance
Institute brought to its investigation, and the incredible
methodological deficiencies in that investigation.
Mr. Arminio, for example, had no education or
experience in engineering, accident investigation, wheel
maintenance and servicing, or highway safety generally
when he arrived at the Insurance Institute in September,
1977, fresh from law school. (Dep. Tr. at 13-15.) Within
six months he had been put in charge of the Insurance
Institute’s multi-piece rim investigation.
80a
Appendix E—Affidavit of J. B. Sechrist.
Mr. Arminio admitted that he ‘never personally
investigated an accident’’ of multi-piece rim separation,
that all the information he had concerning such accidents
was hearsay, and that neither he, nor to his knowledge,
any member of the Insurance Institute _ staff,
investigated any of the multi-piece rim incidents alleged
in any of the principal hearsay sources they relied on.
Arminio stated he thought he once had examined a rim
which had been involved in an incident. (Dep. Tr. at 38-
47, 90, 94-95.) Arminio had never assembled any kind of
multi-piece rim. What is more, no one at the Institute
investigated or knew anything about single piece rims.
(Dep. Tr. at 100-05, 173.) Yet, the only engineering
experts which the Insurance Institute retained were
brought in to deliberately cause a phony rim separation
accident so it could be ffilmed for _ publicity
purposes—that was the only “testing” in its entire
investigation. (See Dep. Tr. 152-53.)
Thus, when the Insurance Institute described its
investigation in court papers as late as 1981. it had to
admit that it still “has no firsthand knowledge of
accidents involving multi-piece rims’ and that all of the
information it had furnished NHTSA was “multiple
hearsay." The Insurance Institute has even argued in
court that any government report based on data which
the Insurance Institute had supplied would not be
admissible as evidence for this reason. ‘‘Suggestions of
the Insurance Institute for Highway Safety in
Opposition to Firestone’s Request for Depositions,”’ pp. 8-
9, In Re: Multi-Piece Rim Products Liability Litigation,
M.D.L. Docket No. 362 (W.D. Mo. dated July 29, 1981).
ae -
8la
Appendix E—Affidavit of J. B. Sechrist.
The Insurance Institute misrepresentations did not
stop with the filing of their petitions with the NHTSA.
After the NHTSA rejected the proposed rule banning
multi-piece rims, relying in part on the OSHA rim
servicing standard and the availability of OSHA safety
charts, the Insurance Institute wrote the NHTSA
objecting that ‘‘apparently the rim matching charts and
safety charts put out jointly by NHTSA and OSHA are
out of print and unavailable in quantity from any
government source.’’ That assertion was inaccurate and
misleading.
The safety and matching charts referenced by the
Insurance Institute are available free of charge both
from the NHTSA and from OSHA. They also may be
ordered in bulk quantities through the Government
Printing Office (GPO). The GPO periodically reprints the
posters as the quantitites in stock are depleted. The last
reprinting by GPO was in the Spring of 1982, when
50,000 of the charts were printed. The charts are not
and will not be ‘‘unavailable,’’ because the quantity in
stock is monitored by Richard F. Sauger of OSHA's Office
of Safety Standards. He authorizes the printing of new
charts by GPO as they are needed. Mr. Sauger has
informed Ms. Michele Fields, an Attorney at the
Insurance Institute, of the continued availability of the
charts.
The Insurance Institute, through public misstatements
of its officials, has sought to create the impression that
the federal OSHA -vorkplace standard for servicing
multi-piece rims cannot be effective in reducing rim
accidents. Thus, in a 1980 speech at Johns Hopkins
University, Ben Kelley of the Insurance Institute
82a
Appendix E—Affidavit of J. B. Sechrist.
asserted that there is no data suggesting that the similar
California standard has reduced accidents. That was a
false statement. California Department of Industrial
Relations data reported to the NHTSA by Failure
Analysis Associates and available to Mr. Kelley showed
there were no fatal accidents involving multi-piece rims
in that state since 1975, clearly evidencing the
effectiveness of the Cal-OSHA rim servicing standard.
Mr. Kelley not only is capable of false statements
about rim safety, he is capable of malicious gossip. In his
speech at Johns Hopkins he told the story that some
plaintiffs’ lawyers were asserting that past
investigations by the NHTSA of multi-piece rims were
squelched by political payoffs. He will not be able to tell
that story again. The Inspector General of the
Department of Transportation found there was no basis
for the allegation, and a federal court in Kansas City,
Missouri recently ruled there is absolutely no basis for
that claim.
2. Unreliable data from the Insurance Institute: The
Insurance Institute submitted accident lists to the
NHTSA and to the Maryland Board of Education which
are full of errors and unsubstantiated, biased, and
irrelevant but misleading data. Exhibit E is the affidavit
of Dr. H. Daniel Roth, a noted statistical methodologist,
‘who has analyzed the Insurance Institute’s submissions.
His affidavit and conclusions reveal the inacc
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