By Karen Padley
Monday July 30, 3:49 pm Eastern Time
CHICAGO, July 30 (Reuters) - Lawyers suing Ford Motor Co.(NYSE:F
- news) and Bridgestone/Firestone
Inc. said on Monday they will appeal a judge's refusal to recall the Ford
Explorer and Firestone Wilderness AT tires.
In the decision issued late Friday, U.S. District Court Judge Sarah Evans Barker said only federal regulators -- and not the courts -- have the authority to order a recall.
``This is an issue that is very unclear in the law and will be appealed,'' said Tab Turner, of Turner & Associates in North Little Rock, Arkansas, one of the plaintiffs' attorneys.
He and others had asked Barker to recall the popular sports utility vehicle and tires, which have been linked with 203 deaths and more than 700 injuries following tread separation and rollovers.
Firestone voluntarily recalled about 6.5 million 15-inch ATX, ATXII and same-size Wilderness AT tires made at the company's Decatur, Illinois, plant, about a year ago.
It recently refused to join Ford's voluntary recall of another 13 million Firestone Wilderness AT tires, saying its tires are safe and that the Explorer's design is also to blame.
The National Highway Traffic Safety Commission, which regulates the tire industry, also has asked Firestone to recall more Wilderness AT tires. Firestone has refused and indicated it plans to fight any additional recall.
On Saturday, a Firestone spokeswoman called Barker's decision ``a substantial victory for the company.''
Barker said in her ruling that the plaintiffs' request for a recall was somewhat of a moot point, since Ford has already voluntarily recalled more Firestone tires. She also determined that only NHTSA can force a recall.
``Delay on the part of NHTSA in reaching a decision is no doubt not what Congress envisioned for dealing with so compelling a situation,'' Barker wrote, ``but the remedy for that problem lies with NHTSA and Congress and not through some unfounded rescue effort undertaken by the courts.''
Richard Shevitz, a partner with Cohen & Malad, an Indianapolis
law firm representing some of the plaintiffs, said he expects an appeal to be filed in Chicago by the end of the week.
In a separate ruling also issued Friday, Barker struck down a number of claims filed by class-action lawyers in the case.
She dismissed charges of racketeering, negligence and failing to practice ``redhibition'' against Ford and Firestone. ``Redhibition'' involves voiding a sale of a consumer product on the grounds that it has a defect which either makes it useless or so imperfect that the buyer would not have originally purchased it.
Barker let stand claims that the two companies have violated the Magnuson-Moss Warranty Act and breached express and implied warranties. She also upheld a claim of unjust enrichment.
Her decision does not affect the hundreds of personal-injury lawsuits that have been consolidated in Indianapolis for pretrial purposes.
Lawyers seeking to have the plaintiffs' lawsuit declared a class action said their case remains intact.
``It's not so important what was stricken as what was left,'' said Don Barrett, a Lexington, Mississippi attorney for the plaintiffs. ``What's there are enough different theories to make our case.''
He said the next step will be for the case to be certified as a class action. Both sides have already presented their written arguments to the judge on the issue.
Barrett said he thinks Barker will certify the lawsuit as a class action given her recent ruling.
``It makes it easy to certify,'' he said. ``We feel real great about it.''