Internal GM Documents Used In Seatback Failure CaseBy Reni Gertner August 4, 2003 Although a Portland, Maine, jury recently deadlocked 4-4 over whether a General Motors seatback was defective, the case could have far-ranging repercussions because the plaintiff's lawyer was able to introduce internal GM documents that suggest the company knew its seats were not safe. The documents included a series of memos, including parts of a company study of all litigation against GM over seatbacks and problems with their safety. Scottsdale, Ariz., attorney Larry Coben, who represented the plaintiff, said that the documents make clear that GM engineers had designed safer seats which were more protective on impact, but that the company chose not to put them in all of their vehicles because such a wholesale change would call too much attention to the fact that the old seats were not as safe. The documents, said Coben, demonstrated the "frustration of engineers who developed safer seatbacks and couldn't get them into vehicles as quickly as they wanted to." According to Coben, despite the documents, the jurors in the Maine case couldn't reach a verdict because of a factual dispute over the nature of the crash that injured the plaintiff. Protected By Privilege? Plaintiffs' lawyers have known about these documents for years, but until about six months ago they were unable to get them admitted because they contained communications between GM and its lawyers, and GM successfully argued that they were protected by the attorney-client privilege. However, by arguing that the documents focus on "engineering analysis," not discussions between lawyers and clients about cases, plaintiffs' lawyers have begun to win these admissibility battles. "Slowly but surely, as courts have heard deposition testimony, they have begun to rule that parts of the study were not privileged," said Leon Russell, a Dallas attorney who is trying another seatback case this month and who attended much of the trial. Russell believes that courts are being persuaded by testimony like that from the chairman of GM's seat safety task force, who stated that GM engineers asked the legal department for information about litigation against the company as part of the task force's "mission to understand what was wrong with the GM seats, if anything." According to Russell, the testimony indicates that "this was an engineering project, and the privilege only applies to attorney-client communications. This was not being done to facilitate lawyers being able to give GM advice on how to deal with litigation." Despite the hung jury in the Maine case, many plaintiffs' lawyers see it as a win because they expect other judges will allow these documents to be admitted in future suits. Russell said watching the trial gave him valuable insight into how GM will handle the introduction of these documents. "It was enlightening to see both sides present their spin on the documents and all the evidence that's out there," he said. For example, he said GM argued that a memo written by a GM lawyer saying the company had no data to support continuing to use the old seats was actually an attempt to play "devil's advocate" with company engineers by mimicking what plaintiffs' lawyers have been arguing. Safer Seats? The plaintiff in the recent case, Maria Allen of Naples, Maine, was driving a 1994 Chevrolet Lumina van to work when she hit a patch of ice and slid off the road to her left. Coben said the car spun around counterclockwise, and the right rear quarter panel of the vehicle hit a large rock on the side of the road. According to Coben, "the rock intruded into the vehicle, pushing some of the right side of the vehicle into the van. Mrs. Allen went into the rear seat as her seat collapsed and twisted, hitting the intruding inside of the door on the back right." As a result, the plaintiff suffered severe brain injuries. At trial, the plaintiff argued that the seats GM used in the Lumina were not the safest ones that company engineers had designed. "They had designed safer seats and put them in a couple of vehicles before this car was built, but they didn't put them in this vehicle" Coben contended. Coben claimed that with the Lumina seat, when a crash occurs, the back of the seat "folds backward, allowing the person to ramp up," which means he or she moves up and back and out of the seat on impact, and is either ejected or strikes someone in the back seat. The new seats, on the other hand, "behave like a glove or catcher's mitt," said Coben. Essentially, the seat "cushions your body" by collapsing "where your buttocks are seated and you get sucked into it," keeping the individual in place rather than ejecting the person, he said. In order to make clear GM's research on seatback safety and engineers' frustration with the difficulty in changing the seatbacks in cars, Coben introduced a number of key documents. Several came from a 3,300 document "litigation study," which the company conducted in order to understand why so much litigation had arisen over their seatbacks. Plaintiffs' lawyers say that one of the strongest documents is known as the "Toth memo." A Michigan court was the first to let the entire document into evidence in a case handled by Tom DeAgostino of Auburn Hills, Mich. The "Toth memo" discusses a study by GM lawyers and engineers of 50 lawsuits against GM involving seatback collapses. Russell said the memo includes statements from GM attorney Gary Toth making clear that the company doesn't have the data to support its longstanding argument that their old seats are safe. According to Coben, the study found that "if the seats had been designed differently, there would have been a [significant] reduction in the amount of injuries." Another key memo that Coben said hadn't been introduced before describes the frustration of GM engineers who said they had developed safer seats but couldn't convince the company to put them in vehicles. "What the documents demonstrate is that the corporate bureaucracy was holding up the inclusion of needed safer seats," Coben said. Other documents he used included: Historical documents discussing the serious injuries that can result from seatback collapse.
But GM spokeswoman Brenda Rios said the documents relied on by Coben don't show the complete picture. "Focusing in on particular statements or lines from selected documents while ignoring other documents and the valid engineering issues involved does a disservice to those conducting legitimate analysis of these issues and a disservice to GM's commitment to seat safety," she said. GM's Defense According to Coben, GM defended the research documents demonstrating that safer seat options existed as being indicative overall of the company's ongoing efforts to make its vehicles safer. GM also argued the vehicles were already safe "because very few people suffer serious injuries in rear-end crashes," he said. In Russell's view, GM's defenses "were the typical defenses they have used for decades in defending seatback failures, including [arguing] that people injured in severe crashes represent such a small percentage of the total number of rear impact collisions that the [greater] overall societal benefit lies in protecting against whiplash [rather] than against brain injuries." He said GM claims that until the early 1990s, it wasn't possible to create seats that would protect people from both types of injuries and therefore the company had to make a choice between the two. However, "if you go back 30 years, you can find engineers and non-GM university researchers" who said that seats could be constructed that would protect against both whiplash and more serious injuries, Russell said. "Plaintiffs' lawyers have said all along that you can do both [with] the proper seat design and head rest combination," which is what GM has now done. According to Russell, the company tried to explain the "Toth memo" by arguing that the attorney in question, Gary Toth, "was simply playing devil's advocate with the corporate engineers" when he said the company didn't have the data to support using the seats it was putting in cars. In some instances, Russell said, GM seemed to simply ignore certain damaging documents, such as the ones about phasing in the new seats. He said that the testimony in this case made clear that as of 2003, GM is putting the new seatbacks in all of its cars. "If the old seats were safe, why did they make them stronger?" he asked. "Why did [they] then change [their] whole fleet over to stronger seats?" But Coben said that plaintiffs' lawyers handling similar cases must still respond to GM's arguments carefully, because "there are very few statistics that are helpful in demonstrating that collapsing seats cause serious injury. The statistics don't demonstrate the nature of the injury." Question Of Impact Despite the admission of the new documents, the jury in the Maine case was still unable to reach a verdict after almost five days of deliberation. Coben said he believes the jurors were stumped by a factual question: Was this a rear impact or a side impact crash? This part of the case was essentially a battle of accident reconstruction experts. If the accident was caused by a rear impact, the seat could be a factor. But if this was primarily a side impact collision, a seat wouldn't usually be able to protect a driver, regardless of its construction. "This case involved an angled impact," said Coben. "It was somewhere in a gray area. The further sideways [the impact was] the less likely the seat would have protected her." GM argued the accident involved a direct side impact. Rios, the GM spokeswoman, said, "Mrs. Allen's head injuries occurred when the Lumina went off the road and collided with a boulder causing a severe side impact. The performance of the seat played no role in Mrs. Allen's injuries." Plaintiff's Attorney: Larry Coben of Coben & Associates in Scottsdale, Ariz. Defense Attorneys: Evan Burkholder of Mcguire Woods in Richmond, Va., and Susan Driscoll of Bergen & Parkinson in Kennebunk, Maine The Case: Allen v. General Motors Corp.; Maine Superior Court, Cumberland County; Judge Robert Crowley. |