Group tries to unseal court files

By Art Campos
The Sacramento Bee
Thursday, September 29, 2005A public interest law firm representing trial lawyers is seeking to unseal a 2002 Placer County judge's finding that an automaker's defense expert had destroyed evidence.

Trial Lawyers for Public Justice in Washington, D.C., alleges that the sealed document prevents their clients from challenging the credibility of the expert, who continues to be used as a witness by automakers in other cases.

The group alleges in a motion filed last week in Auburn that Placer Superior Court Judge James D. Garbolino erred when he sealed a 36-page sanctions order against American Honda Motor Co.

In his decision in 2002, Garbolino concluded that Robert Gratzinger, an accident reconstructionist used by Honda's lawyers, destroyed evidence while the case was still in a jury trial.

The judge determined that Gratzinger had used a rag to wipe the latchplate of a seat belt that may or may not have been used by a woman who was critically injured in a car accident.

Because of the tampering, Garbolino awarded the verdict to the woman, Sarah Davis of Auburn, who was left a quadriplegic in the 1999 rollover accident.

Garbolino then ordered the jury to determine the amount of damages to be awarded to her. Before the trial could conclude, however, attorneys reached a settlement, which included Garbolino sealing the sanctions order and restricting the parties from discussing the case.

Since then, attorneys for automakers being sued by victims in traffic accidents have continued to hire Gratzinger as an expert witness.

But when placed on witness stands, Gratzinger, citing Garbolino's sealing order, has declined to answer questions about his role in the Davis case or about the judge's conclusion that he spoiled evidence, Trial Lawyers for Public Justice alleges.

"This extraordinary secrecy order is being used to stop crash victims from questioning Mr. Gratzinger and challenging his credibility," said Rebecca Epstein, a staff attorney for the firm. "People left in wheelchairs by crashes must sit in silence while Mr. Gratzinger testifies for Honda and other big automakers."

Epstein said judges in other cases have ruled in favor of Gratzinger's right to remain silent on the Davis case and have refused to allow trial lawyers to bring up the tampering incident in open court.

"Our case shows the danger of blanket secrecy going unchecked," Epstein said.

Garbolino, who is retired but who still receives occasional assignments from Placer Superior Court, said he had not been aware of the firm's motion and did not know if he would be assigned to it when it is heard on Oct. 25.

He refrained from commenting on his decisions in the Davis case.

Gratzinger did not return messages left at his office in Irvine. Richard Bowman, attorney for American Honda, could not be reached at his Minneapolis office.

Dan Wilcoxen of Sacramento, one of the attorneys for Davis, said that whatever decision is reached about the sealing order "is fine with me."

"I'm leaving it up to the judge," he said.

In its motion to unseal Garbolino's order, the Trial Lawyers firm is representing the Center for Auto Safety, a national consumer group.

It is also representing the attorney of a woman whose husband was killed in a vehicle accident in Mississippi and the lawyer for a man who was left a paraplegic in another accident in Florida.

According to Epstein, lawyers for the victims in those two cases were unable to challenge Gratzinger's credibility because of Garbolino's sealed order.

The 36-page sanctions order in the Davis case was obtained by The Bee on Oct. 9, 2002 - one day before attorneys reached the undisclosed settlement.

Garbolino immediately sealed both that agreement and his sanctions decision.

In his order, Garbolino concluded that during the trial, Gratzinger went to a storage yard where the damaged car was being kept and intentionally used a rag to "obliterate" pre-existing witness marks that had been observed on the latchplate by Davis' lawyers.

He also concluded that the rag produced the next day in court by Honda's attorneys was not the same as was used by Gratzinger at the inspection.

Honda's lawyers contended that Davis, who was 17 at the time of the accident, was responsible for her own injuries because she was not wearing the seat belt when the Honda Civic in which she was a passenger went out of control and landed on its top.

Davis claimed she was wearing the belt and that it failed when the car rolled over into a ditch on Auburn Ravine Road. She also claimed that the roof of the car was weak and defective, causing it to cave in on top of her.

The Trial Lawyers group allege that Garbolino's sealing order harms the public interest.

"If the alleged misconduct did take place, the seal of the sanctions decision has allowed Mr. Gratzinger and Honda's attorney to evade professional accountability for their actions, setting a dangerous precedent for future litigants' conduct," the group's motion reads.

The group said California rules of the court state that before a record can be sealed, a judge must find an "overriding interest" that prevents the public from having access to the record.

In addition, the judge "must specifically articulate the factual findings supporting secrecy," the group said.

"There is no evidence that the parties brought these rules to the court's attention, much less satisfied them," the motion states.

The group said if the sealing order was implemented to conceal the court's findings of misconduct and preserve the professional reputations of Gratzinger and Honda's attorneys, "that interest is not a legitimate basis for sealing court records."