In its initial amicus brief in this action, the Georgia Trial Lawyers Association ("amicus") explained that a tire manufacturer's own internal data reflecting failures of and complaints about its tires (called "adjustment data" by the tire industry) is admissible under the precedent of this Court (and that of virtually every other jurisdiction).

Since the GTLA amicus brief was filed, however, the overriding public policy bases supporting admissibility have become even clearer. The investigations by the National Highway Traffic Safety Administration ("NHTSA") of Firestone and Cooper Tire for separation defects (the precise defect in this case) have highlighted just how and why adjustment data plays the central role in evaluating tire defects. Why? Because actual failures of tires in the real world environment of use are the best evidence that such tires present a risk of injury or death to the public. That data is the first information giving notice of a problem. It is the evidence that can prevent further injuries and deaths if acted upon soon enough.

In the words of Justice Holmes, recent public disclosure of the existence of this detailed internal data has rung out "like a firebell in the night." It was the first "evidence" ordered disclosed to NHTSA; it was what NHTSA relied on to help determine a defect and order a Firestone recall (the Cooper Tire investigation is still pending); it was what Ford, Firestone and Cooper Tire executives relied upon to try and defend their indefensible conduct; and it was what the American public read about daily in national newspapers.⁽¹⁾ Cooper Tire can't, with one hand, rely on its adjustment data to try to defend its tires but, with the other, prevent the jury's access to the same data.⁽²⁾

Cooper Tire's argument to this Court, if accepted, would keep this important evidence from the jury and, worse yet, from the public. Cooper Tire argues that the very same evidence that the federal government relies on to determine defect and that Cooper Tire cites to claim no defect⁽³⁾ would be inadmissible in the courts of this state. That position is patently absurd.

The public policy of this state cannot countenance hiding from a jury the same data about failures, complaints, injuries, and deaths that forms the basis for tire makers'--and the government's--decisions about defect. The goals of protecting the public from defective tires are not served by complicity with Cooper Tire in shielding this evidence from the jury's or the public's view. It cannot be doubted that a Georgia jury evaluating defect and the manufacturer's state of mind for punitive damages should have available to it the same evidence from Cooper Tire the government demands and relies upon.

A strong statement from this Court affirming the admissibility of this "adjustment data" is critical for two reasons. First, the precedents of this and other courts require it: this data is strong proof on the issues of defect and punitive damages.⁽⁴⁾ But more importantly, a strong statement from this Court will save the lives of, and prevent injuries to, countless Georgians. Exposing this oft-hidden data to public scrutiny in a court of law will make Cooper Tire and other manufacturers think twice before hiding problems with their tires. Knowing that Justice Brandeis' "sunlight"⁽⁵⁾ will be directed into this secret repository of guilty knowledge will cause tire manufacturers to act sooner--before even more injuries or deaths occur from defective tires. Judge Alaimo recently noted these important public policy considerations in his order unsealing tire adjustment data in a Firestone case that had been settled: the "public interest is legitimate because the tire tread separation defect concerns the health and safety of the public--interests of the highest order."⁽⁶⁾ Judge Alaimo also went on to note that "concerns of public health and safety trump any right to shield such material from public scrutiny."⁽⁷⁾

The opinion that this Court will issue in this case provides a public safety opportunity not often presented to this Court. Amicus urges this Court not to let the opportunity to do that great good pass the Court by.

/s/ JAMES E. BUTLER, JR.

/s/ JOEL O. WOOTEN, JR.

/s/ GEORGE W. FRYHOFER III

/s/ TERRANCE C. SULLIVAN

/s/ CALE H. CONLEY

1. See Exhibit A, containing only a sampling of this coverage, including: Keith Bradsher, Documents Show Firestone Knew of Rising Warranty Costs, N.Y. Times, Sept. 8, 2000, (quoting Representative Billy Tauzin, a Louisiana Republican and chairman of the House Commerce Subcommittee on Consumer Protection, as saying that "Firestone's safety officials should have been concerned about the warranty information" and that "[y]ou can't have had that much information floating around not to have noticed a problem that should have been notified to federal authorities.")(emphasis added); James R. Healey, January Memo Revealed Tire Flaws, USA Today, Sept. 8, 2000 (noting that an internal company memo dated January 19, 2000 reported that 62% of the tread separations occurring in 1999 were from tires that were later subject to recall); James R. Healey and Chris Woodyard, Concerns Go Back 1 ½ Years Before Recall, USA Today, Sept. 11, 2000 (quoting a Ford spokesman as saying: "Until we could look at Firestone's claims data six weeks ago, we had no way of knowing what the problem was or how to remedy it.") (emphasis added); John Kelly, State Farm Says It Reported Tire Incidents, Chicago Sun-Times, Aug. 16, 2000 (reporting that State Farm thought that the claims related to tread separations of Firestone tires were significant enough for State Farm to report the trend to the National Highway Safety Administration) (emphasis added).

2. See Complaints Against Cooper Tire Rise, The Associated Press, Sept. 26, 2000 (quoting Patricia Brown, spokeswoman for Cooper Tire as follows: "Cooper continually monitors product information from the field," and "[w]e have re-examined our data from 1994 to the present and have determined that there is no common factor in claims such as tire type, brand size, date or location of production, or any other indication that would suggest we have safety issues with our tires."), attached as Exhibit B.

3. See supra note 2.

4. See, e.g., Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993)(admitting similar product complaints for proof of defect and punitive damages); Batten v. Chrysler Corp., 264 Ga. 723, 450 S.E.2d 208 (1994)(requiring proof of manufacturer's knowledge of post-sale problems in failure to warn cases); Banks v. ICI Americas, Inc., 264 Ga. 732, 734, 450 S.E.2d 671, 673 (1994)(adopting manufacturer reasonableness and risk-utility inquiry, necessitating examination of manufacturer's knowledge and risk of product problems); see also Skil v. Lugsdin, 168 Ga. App. 754, 755, 309 S.E.2d 921, 923 (1983); Montano v. Lee Tire & Rubber Co., 893 P.2d 1298, 1299 (Ariz. 1995), Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 920-22 (Mass. 1998); Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 649 (11^th Cir. 1990); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1385-86 (4^th Cir. 1995); Kehm v. Procter & Gamble Manuf. Co., 724 F.2d 613, 625-26 (8^th Cir. 1983).

5. Justice Brandeis long ago observed that "sunlight is said to be the best of disinfectants." L. Brandeis, Other People's Money 72 (1933).

6. Van Etten v. Bridgestone/Firestone, Inc., No. Civ.A. CV298069, 2000 WL 1475816,at *8 (S.D. Ga. Sept. 27, 2000) (emphasis added).

7. Id. at 9 n.4 (emphasis added).