Flaky suit v. Ford floats on

Steve Korris Sep. 15, 2005, 10:00am

Brad Lakin

Two years ago, a lawsuit over paint flakes on Fords turned into a struggle over much tougher matters. That flaky lawsuit represents enormous changes that have taken place in Madison County:

  • The Lakin Law Firm legal assistant who filed the suit has withdrawn as lead plaintiff, for "personal reasons."

  • The judge who certified the suit as a class action has retired.

  • The defendant has removed the suit to federal court under the Class Action Fairness Act that Congress passed in February.

    U.S. District Judge David Herndon must now apply federal law to paint flakes on cars that Ford built 10 to 20 years ago.

    Not only has Ford removed the amended Phillips vs. Ford to federal court, the auto maker has asked Herndon to dismiss the six-year-old suit.

    And after it was volleyed July 15 to federal court, the plaintiffs have since asked him to remand it to Madison County.

    The suit took shape in 1999, when a temporary employment agency assigned Joyce Elaine Phillips to the Lakin firm in Wood River. The firm later hired Phillips--who said in a deposition she had no training for the legal assistant position--in January 2000. But she did own a 1990 Ford Taurus.

    "I heard around the office that there was a paint problem, and I said, 'I have paint problems,'" Phillips would say in a 2002 deposition.

    Attorney Brad Lakin filed suit on her behalf Oct. 26, 1999, alleging consumer fraud and common law fraud. He claimed that Ford failed to apply a primer surfacer.

    The suit came at the dawn of the class action era in Madison County. Prior to 1999, plaintiffs had sought class certification in only six cases. The pace had quickened in the fall of 1999, as plaintiffs proposed several class actions against insurance companies.

    Years later, as this particular case slowly churned its way through Madison County, the Illinois Civil Justice League, the U.S. Chamber of Commerce and the American Tort Reform Association held a press conference on the steps of the Edwardsville courthouse questioning the quality of Madison County justice.

    Shortly thereafter, Lakin prepared subpoenas and notices of depositions on all three organizations, seeking membership rosters and records of political action contributions.

    Lakin did not sue the organizations. Instead he served the subpoenas and notices in connection with Phillips vs. Ford.

    A plaintiff's tale

    Ford attorney Patrick Rizzi of Washington, D.C., deposed Phillips on Jan. 10, 2002. She said she parked her car at the Lakin office near the Amoco refinery and at the Clark refinery in Hartford while on a temporary job.

    In the deposition, Phillips said the Lakin firm requested an inspection of her car. She did not.

    Local Ford attorney Robert Shultz of Edwardsville opposed class certification.

    "The fact that paint can wear out does not mean it is defective," he wrote.

    "One does not have to be a Supreme Court scholar to spot the lunacy of plaintiffs' attempt to leash everyone's claims to the law of Illinois," Shultz wrote in opposition to national class certification.

    He wrote that a class member who had never left Hawaii "would have a hard time understanding why his claims are suddenly governed by the law of Illinois just because some lawyers they never heard of thought it would be strategically advantageous to bring a nationwide class action in Madison County."

    Shultz also argued that Phillips was too closely connected to counsel to represent a class. He wrote that absent class members could question where her loyalties lay.

    "Class counsel obviously enjoy great leverage over her," he wrote. "They pay her salary and can terminate her employment at will."

    The case was under Circuit Judge Philip Kardis's watch.

    Kardis, whose aspirations of becoming an appellate court judge were dashed by the election of Illinois Supreme Court Justice Lloyd Karmeier last November, retired recently on Sept. 2.

    On June 24, 2003, Kardis set a hearing on class certification.

    Judicial temperament

    At the hearing, Kardis said to Rizzi, "Tell me what other peeling problems Ford has."

    "I would not concede that Ford has peeling problems," Rizzi responded.

    Kardis shot back, "Look, if it's black, call it black. If it's white, call it white. You have a peeling problem."

    Plaintiffs proposed four classes – common law fraud by topcoat delamination, consumer fraud by topcoat delamination, common low fraud by clearcoat delamination and consumer fraud by clearcoat delamination.

    When Shultz argued the difficulty of dividing plaintiffs into four classes, Kardis said, "What kind of class action can you have where at the end of the day you don't have to prove that you are a member of the class?"

    "The plaintiff has to prove it at this stage, not at the time of the trial," Shultz answered.

    Kardis said, "He proves that everybody that is red, white and blue is a member of the class, and he wins."

    Rizzi argued that Phillips's position as legal assistant with class counsel precluded her from representing the class.

    Kardis issued a preliminary ruling granting class certification.


    The Illinois Civil Justice League, the American Tort Reform Association and the Chamber moved to quash Lakin's subpoenas and depositions. The ICJL also moved for sanctions.

    On July 16, 2003, the clash ended. Lakin released all subpoenas and the ICJL withdrew its motion for sanctions.

    The Madison County Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

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