Ruling by Maine judge could hurt GM for years

By GREGORY D. KESICH, Portland Press Herald Writer

After a three-week trial and nearly five days of deliberation, the jury was deadlocked.

The eight men and women from Cumberland County were evenly divided over whether General Motors Corp. was liable for a debilitating head injury suffered by Maria Allen of Naples, whose Chevrolet Lumina van spun into a rock beside a rural highway in Poland in 1999.

The hung jury leaves Allen exactly where she started when the case first came to trial. But internal General Motors documents that her lawyers introduced as evidence could advance dozens of similar lawsuits against the world's largest automaker in courtrooms all over the United States.

Memos and reports shown to the jury in Portland detail an internal debate within General Motors, in which safety engineers fought to design and test safer car seats for decades before their introduction in the late 1990s. Court documents include a study by General Motors safety engineers that concludes a new seat design would prevent many serious injuries.

Perhaps the most damaging is a memo to engineers from General Motors attorney Gary Toth, who argued against introducing a new seat design. Toth feared it would make the company look as if it were acknowledging it had a problem that needed fixing.

"This is, of course, a legal call," Toth wrote in the memo, "but it would appear initiating a special program tends to damn those seats currently in the field."

Plaintiffs' lawyers say the documents prove what they have said for years: Before General Motors introduced high-retention seats that reduced passenger ejections, it was selling a dangerous product, and the company knew it.

"GM has always said that the old seats are fine and the new seats are better," said Leon Russell, a lawyer from Dallas who is taking a seat-back suit to court next month. "But all the written data within GM shows that after a seven-year fight there was a major fundamental philosophical change in the way seats were designed."

General Motors spokesman Brenda Rios would not comment on any other pending cases. But she said the company has always maintained that the Lumina seat was safe and not the cause of Allen's injury.

Rios said the company, however, is still talking with the Allens about settling the case. If talks are unsuccessful, she said, "We are prepared to go to trial again if we have to."

General Motors is the world's largest vehicle manufacturer, selling nearly 15 percent of the world's cars, trucks and heavy equipment under brand names that include Buick, Cadillac, Chevrolet, GMC, Holden, HUMMER, Oldsmobile, Opel, Pontiac, Saab, Saturn and Vauxhall.

Millions of General Motors vehicles still on the road have front seats that bend backward, or "yield," in rear-end collisions. Seats exactly like the one Allen was riding in were used in the Chevrolet Vega and Astro Van as well as the Lumina. Plaintiffs' lawyers estimate that there are between 40 and 50 pending lawsuits against General Motors on the issue of seat-back strength.

General Motors' documents outlining the company's internal debate over seat design have been known to plaintiffs' attorneys for years. But until recently, they have never been shown to a jury because General Motors has successfully argued that they were privileged communications between the company and its lawyers.

In a recent series of decisions, however, judges around the country have ruled that parts of the documents are admissible. Maine Superior Court Justice Robert Crowley went the furthest yet, admitting whole documents, like the Toth memo, that had previously been seen only in part.

"This is the first case in which the plaintiff's lawyer was able to put in the whole thing and use it to the fullest extent," Russell said. "And we've learned the defense GM is going to use against them."

Russell traveled to Maine last month to watch the Allen trial because he expects to see many of the same witnesses when his case begins next month. He represents a Texas state trooper who, like Allen, was thrown from her seat during a collision and seriously injured when her seat-back collapsed. The trooper was paralyzed in the crash, while the driver of the same car, whose seat did not yield, walked away from the accident.

According to the documents, the debate over rigid versus yielding seats has been going on since the 1960s. Supporters of yielding seats say they prevent whiplash injuries in minor crashes. Rigid-seat adherents say they could prevent more serious injuries by keeping the passenger in place.

In 1990, General Motors' top safety scientist, David Viano, convened a study of lawsuits against the company to see if seat design could prevent injuries in severe rear-end collisions. The panel found that about half of the injuries were related to the yielding seat back, and almost all of them were caused by the passengers striking hard objects behind them in the vehicle.

The automaker's "Seat Back Litigation Study" concluded that in 38 percent of the cases studied, a stronger seat-back could have prevented or lessened the severity of injuries by keeping the occupant in place during a crash.

But the study's findings did not make it into production cars for almost a decade. In a 1995 memo to Viano, safety engineer Dick Neely complained that company officials were preventing progress on seat design with an endless series of questions intended to stall their work.

According to Neely, one official said, "he just want(s) an adequate seat and he doesn't want a world class type seat."

Neely wrote to Viano: "Dave, it's the same thing over and over again each time we present here. There's enough players to start the questioning. It's like throwing raw meat into the middle of a pack of dogs that just feed on each other with questions . . . I had such a headache coming out of there I didn't know (what) to think."

Viano forwarded the message to his colleagues with his own comments. "I can only imagine what Dick Neely is feeling after 3 1/2 years of trying to do a basic technical evaluation of what seats ought to be for overall safety of our customers," Viano wrote. "I am extremely disappointed with the quality of the deliberation that is going on within our company."

For years, Russell says, General Motors argued that the seat-back study should not be introduced as evidence, because it is made up of communications between the company and its lawyers. But in the Allen case, the plaintiffs showed that even though the study contained information derived from lawsuits, it was driven by the engineers and its findings were not legal advice.

Although Crowley's rulings in Maine will not bind any other judge to making a similar ruling, the arguments used by Allen's lawyer, Larry Coben, that persuaded Crowley will be used again and again.

Ironically, in the Maine case, the documents may not have played any role in the jury's deliberation.

Judging from the evidence jurors wanted read back to them, and the questions of law they asked Crowley, lawyers watching the case said the jury appeared stuck on the threshold question of whether any seat could have prevented Allen's injury because the impact to her van came from the side, not the rear.

Viano himself appeared as a witness, and jurors asked to hear again his testimony during which he said the seat he fought General Motors to introduce would not have made a difference in Allen's accident.

"They never got to the question about the documents because they were struggling over the basic first question before them," Russell said.